SHOULD S. 1 BE JUNKED?

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP77M00144R000800020019-5
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 12
• Document Creation Date: December 9, 2016
• Document Release Date: August 31, 2001
• Sequence Number: 19
• Publication Date: September 22, 1975
• Content Type: OPEN

S 16410
Approved For RC8 (NSgiUNAI: I3 7M%%lff!0080002
2ber 22, 191-5
$4 a head ($3 for children) to the Arizona organizations. I have urged that these tutor may want to define it, that could not
State Fairgrounds and is the only source of provisions be eliminated or totally re- be "used" by a foreign power or would not be
funds for the club's far-reaching service vised. related in some way to national defense?
activities. Designed nine years ago to re- The threats to freedom of information Government employes who revealed infor-
place the many and scattered fund-raising the only problems with S. 1, but mation and reporters who received and pub-
events that sapped the Kiwaniana' time and are not lished it would be liable under the law. Only
energy throughout the year, the Bar-B-Q has these have been the subject of my direct the official version of events would be avail-
been a huge success. During the past three concern with the bill. ? able to the public. The government would be
years the event has raised $11,000, $17,000, Other critics of S. 1 argue that the able to operate behind a screen of secrecy.
the $19,500 for the club and has evolved into bill should not pass even with amend-_ This attempt to scuttle the First Amend-
an eagerly awaited spring tradition. More ments. They say that it is incapable of ment is the most dangerous aspect of S 1,
than $100,000 has been raised by the club being improved by amendment and and naturally has drawn the most fire from
through this one activity over the past nine the press. As a result, some modifications of
should be junked in Coto. sections relating to control of government
y?"Advance ticket sales are the key to the The Los Angeles Times, in its lead edi- information may be accepted by the bill's
"Ad
Bar-B-Q's success," explains this year's proj- torial for September 15, has urged that sponsors. Even so, the legislation should be
ect chairman Bob Trehearne. "No-shows S. 1 be thrown out. I ask unanimous con- rejected, because freedom is not a commod-
among the advance sales are responsible for sent that this editorial be printed in full ity to be parceled out in varying degrees to
80 to 90 percent of the profits." The 1975 ver- at this point in my remarks, the American people, and S 1 contains a long
sion, for example, took in money from thir- The PRESIDING OFFICER. Without array of hazards to a free society. The bill
teen thousand tickets sold, but only nine objection, it is so ordered. would:
thousand people actually came to the Bar-B- Protect federal officials from criminal pros-
Q. "Advance ticket sales also avoid competi- PUTTING FREEDOM AGAINST THE WALL ecution for illegal acts as long as they be-
tion with other events that might fall on Legislation now pending in Congress to lieved "the conduct charged was required or
the same day," says Bob, revise the federal criminal code should be authorized by law"; this clause, dubbed the
The feast is catered by Walter Jetton of junked. "Watergate defense," would provide a ration-
Fort Worth, Texas, the man who made the Senate Bill 1, a massive and complicated ale for almost any kind of abuse of authority.
LBJ Ranch barbecues famous. Jetton sup- measure 753 pages long, is so pervasively and Reaffirm authorization of domestic wire-
plies the food and cooks it according to his fatally flawed that it lies beyond the scope tapping for 48 hours without court order
own secret recipe with the help of five or six of any rational amending process. and require landlords :nd companies to co-
assistants. Kiwanians man the serving lines Known as the Criminal Justice Reform Act operate "forthwith" and "unobtrusively"
and drink stands, collect tickets, and clean of 1975, the bill, and companion legislation with government agents.
up afterward. Twenty-five Key Clubbers from in the House, purports to standardize federal - Impose restrictions on demonstrations by
North and Central high schools in Phoenix criminal law. It does that to an extent-but making, the picketing of government build-
also assist on the big day. The event runs far more. It proposes revolutionary change ings Illegal; also illegal would be interstate
from 11 am to 4 pm. that would vastly enhance the power of gov- travel to assemble 10 or more persons who
About eight weeks before the Bar-B-Q ernment and sharply decrease the freedom "create a grave danger of imminently caus-
ticket-selling teams are set up and spirited of the American people. ing" damage to property.
competition among the Kiwanians ensues.. Federal law is a hodgepodge of disi=lepan- Outlaw demonstrations that would take
Weekly prizes are given for ticket sales, and ties that need revision and codification. That place adjacent to wherever authorities say is
the members and wives who sell one hundred was the purpose, of the National Commis- the "temporary residence" of a President.
tickets are awarded free dinners. "Recogni- sion on Reform of Criminal Laws appointed Receive in part the Smith Act by making
tion is a key motivator for good ticket sales," in 1966, with former Gov. Edmund G. Brown it a crime to incite others to engage in con-
says Bob. as chairman, After live years of study, the duct that then or at some future time would
Publicity includes radio spots giving de- commission presented its report to President facilitate the dstruction of the government.
tails of time and place, a "dinner bell" con- Nixon and Congress in 1971. Define sabotage broadly as activity that
test by one radio station in which the first In the next two years, the bipartisan com- "damages" or "tampers with" almost any
caller following the ring of the bell gets two mission's effort was undercut. The three property, facility or service "that is or might
free tickets to the feast and his name on the Senate members of the commission, oftem- en dissenting from its recommendations, be used" In the national defense of this coun-
air waves, and announcements in newspapers bodied their their views in a bill (S 1) introduced cod try or "an associate nation."
a
In 1973. They were John (S 1) introduced
and local magazines. A publicity plus this . Permit entrapment b
L. McClellan (D- by government gents,
year came from the Goodyear blimp, which Ark.), Roman L. Hruska (R-Neb.) and Sam and place the burden on a defendant to prove
was in Phoenix about a week before the Bar- J. Ervin Jr. (D-N.C.) Even this did not satisfy he was "not predisposed" to commit the
B-Q. The blimp carried aloft a free, lighted Nixon, who had the Brown commission re. crime.
advertisement for the Kiwanians two nights port thoroughly revised and presented as the Broaden the conspiracy law by eliminating
in a row. administration-backed Criminal Code Re- the requirement of proof. of an "overt act";
Money accumulated from the Bar-B-Q has form Act of 1978 (S 1400). McClellan and substituted is "any conduct" that shows in-
gone to many community activities over the Hruska held hearings to consolidate both tent to effect a criminal agreement.
years: the juvenile rehabilitation fund bills, and what emerged was the present Reaffirm limited "use" Immunity in crimi-
($5000), the juvenile detention facility legislation, which far exceeds the goal of the nal proceedings and congressional hearings-
($5000), the Boys Scouts ($6500), Dope Stop brown commission. a procedure that weakens the Fifth Amend-
($7300). the Salvation Army ($5900), and The American Bar Assn. house of dele- ment protections against self-incrimination,
Junior Achievement ($5900). Most recently gates recognized this last month by voting These provisions do, not by any means ex-
the club helped finance the Australian Bush nearly unanimously that codification should haust the list; worse, the legislation is
Country Exhibit for kangaroos and emus at not go beyond present law. And the board marked throughout by a chronic vagueness
the Phoenix Zoo with a $15,000 donation. of governors of the Society of American Law of definition that would insure decades of
Teachers concluded recently that 'the bill is battles in the courts.
so Diddled with defects" that It is doubtful Whatever this bill is, it is not simply an
SHOULD S. 1 BE JUNKED? whether it is "amenable to piecemeal' im- effort to pull together and rationalize exist-
provements." ing federal law. It is, rather, a reflection of
1VIr. CRANSTON. Mr. President, it is Its most drastic provisions would virtually an authoritarian view of the way government
expected that the Committee on the Ju- give ownership to the government of all pub- should function, and a radical departure
diciary will take up S. 1, the Criminal lit information. The legislation would ac- from the letter and spirit of the Constitu-
Justice Reform Act of 1975, for consid- complish this by creating a new felony: tion.
eration sometime this fall. As many unauthorized disclosure of "classified" of- In this bicentennial year, Congress could
know, S. 1 recodifies and systematizes ficial data. With some 16,000 government em- honor the founding fathers in no more ef-
the present hodgepodge of Federal trim- ployes authorized to classify documents, this festive way than by throwing out this legis-
inal statutes. provision, with its severe penalties, would lation in its entirety.
permit the government to engage in un-
I Mr. CRANSTON. Mr. President, the
have been very much concerned precedented suppression of information. American Civil Liberties Union of soothe
with those provisions of S. 1 which I The sections dealing with "national de-
believe threaten first amendment rights fense information" would make government ern California states that S. 1 "is so rid-
and give to the Federal Government too employes and news reporters vulnerable to dled with defects" as to-be "unamenable
much power over what information will prosecution that would be limited only by to piecemeal improvements; many pro-
the imagination of the prosecutor. visions must be redrawn from scratch."
be made known to the American people. One section would make it a crime to col- prof. Louis H. Schwartz, however, who
I have outlined the case against these lect or communicate "national defense infor- was the draftsman for the Brown Com-
provisions in appearances before the mation" with the "knowledge that it may be wmassion report, on which S. 1 is based,
American Society of Newspaper Editors, used to the advantage of a foreign power ..:'
the Newspaper Guild, and other press Is there any information, defined as a prose- has said that a. 1 can be amended to
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 September 22, I#p roved F ("gSia V~f/ CC3Q$DPK7M T44R000800020019-5 16409
prochement is being discussed. The trade
embargo which the United States imposed
upon Cuba will soon terminate. Cuba needs
our spare parts for all its equipment; un-
derstandably, American manufacturers want
to take advantage of the available market.
Yet there is so very much to be esolved
before the United States considers he re-
sumption of diplomatic relations wit Cuba
while it is being governed by a .ruthles Com-
munist dictator who hams the 'United tates
and has abolished all personal freedo and
for we of nonlethal, incapacitating agents
such as tear gas and the new BX nerve gas,
as well as for continuation of a "defensive"
chemical warfare program that had cost 2.6
billion dollars in the 1960s alone.
Early this year the Senate and President
Ford finally completed the process of ratify-
ing the Geneva Protocol against poisonous
gas or bacterial warfare. The United States
had sponsored the protocol 50 years earlier
and was the last major nation to ratify it.
Even so. the ratification left room for use of
deadly nerve gases in retaliation if they were
first used against the United States, and the
Army has since sought "modernization" of
nerve gas stocks.
So, in view of all the loopholes left, where
does this country stand? It no longer has nay
NI!:IRV"E GAS STORIES
Mr. GARY HART. Mr. President, in
an August 9, 1975, editorial, the St. Louis
Post-Dispatch pointed out the incongrui-
ties in U.S. policy toward the use of lethal
gases as weapons of war. Despite our
sponsorshl p of the Geneva Protocol in
1925, the treaty resulting-from this pro-
hibition of use of these particularly in-
discriminate and inhumane weapons was
only ratified this year. The reason for 50
years of hesitation on the part of the
United States has been the desireof the
military and the several Presidents to
maintain an "option" to use lethal or
disabling gases either in retaliation or
on our own initiative.
Ratification of the Geneva Protocol
does not mean, however, that the Nation
is now firmly committed to do away with
poison gas stocks or even that the Penta-
gon will hereafter be satisfied with the
enormous stockpiles on hand. On the con-
trary, the Department of Defense is well
down the road toward making an entire
new generation of nerve gas weapons.
These have the feature of being more
safely transportable, but they remain in-
discriminate and inhumane. Further-
more, the very portability of these weap-
ons argues that their use is more likely,
not to mention that a new arms race
will likely be started if the Pentagon's
plans are allowed to proceed.
Congress has in past years attempted
to put some limits on the nerve gas mod-
ernization plans, but these efforts have
been regularly frustrated when this body
gave in to Pentagon and White House
pressures. This year, however, the Senate
passed firm restrictions in the fiscal 1976
uuthorizatic:n bill. Now that that legis-
lation has been returned to conference,
we have a new opportunity to insist on
our position against development and
production of a new generation of poison
gases. I call upon the conferees to hold
farm on the -position the Senate has taken
because it makes no military sense to
proceed wit::l uroliferation of new terror
weapons.
I ask ur..a::1imous consent that the edi-
torial be printed in the RECORD.
There being no objection, the editorial
was ordered to 1be printed in the RECORD,
u?s follows : ?
.11 a77E GAS STORES
The Arrn7 's storing bombs of a nerve gas
known as BZ at its Pine Bluff, Ark. arsenal,
which is a reminder of the confusing situa-
lion in which the United States finds itself
as to chemical and biological warfare.
In. 1969 former President Nixon renounced
all use of biological weapons and first use of
chemical weapons, and stocks of biological
weapons and toxins at Pine Bluff were to be
destroyed. The Nixon order still left room
States is committed not to use them
hey are used against it.
K ANIS CLUBS
Mr. FANN INXMr President, our Na-
tion is blessed th a number of out-
standing organiz ions which perform
public service, and one does any greater
I am especially pr d that the Kiwanis
clubs in my awn Stat f Arizona are ex-
tremely active and th rojects they un-
dertake are of tremend s benefit to peo-
Mr. President, the Ki nis magazine
in its September 1975 editi features the
work of division 6 of the Nthwest dis-
trict in southern Arizona d of the
Valley of the Sun club in A e Phoenix
area. I ask unanimous consen at these.
articles be printed in the RECAP so that
my colleagues will have an o rtunity
to know what is being aecomp hed by
these dedicated members of the 111waiiis
There being no objection, the a isles
were ordered to be printed in the R RD,
The Cookie Monster stalks his favorite trey
Big Bird is his usual stumbling witty seL
,
and Oscar the Grouch snarls from inside his
trash-can home. But the colorfu_ characters
are not on a television scene. They adorn a
ten by thirty foot trailer and serve as silent,
larger than life greeters to the preschoolers
who come to the trailer for learning disabili-
ties testing.
The traveling testing center. a joint project
of the ten Kiwanis clubs of Division 6 of the
Southwest District, spends a few days each
week at different spots in the division and
tests three to five year old children for vision,
hearing, and coordination development.
Dubbed Project ARK (Assessment and Refer-
ral through Kiwanis), the trailer is an effort
to - provide the best possible testing and to
avoid duplication of work. Lieutenant Gov-
ernor Bob Preble and project chairman Lou
Cate, of the Tucson Sunshine club, feel Proj-
ect ARK could serve as a mode. for other
divisions seeking learning disability projects.
The clubs participating in the sunny south-
west are Sunshine, Conquistador, Desert Palo
Verde, Roadrunner, Rincon, San Xavier, and
Tucson, - all in the Tucson area; and Green
Valley and Ambos Nogales, just this side of
the Mexican border.
The trailer is designed to be it pleasant,
efficient te::ting center with paneled walls,
tiled floors, heating and cooling apparatus,
and fluorescent lighting. The reception area
consists of a small, clay box play space in the
same room where vision is tested. The Ki-
wanians use the standard "E" vision exam-
ination chart. A small room houses a sound
booth large enough for a tester and a child.
A glass window allows the child to see his
parents during the testing so that he will
feel at ease. A third room contains facilities
`or testing coordination in two parts: gross
and fine motor, concept and comprehension.
Following the tests the parents receive a
letter that explains the examination and its
results. In effect the letter states: "Your
child was given several tests designed to
detect any possible problems in the areas of
vision and hearing and to see that he or she
s developing normally in all respects." The
letter goes on to list the results. If normal
reactions occur during all the tests the letter
o states and explains that the testing was
not comprehensive but is designed only to
liscover major difficulties. If serious problems
:ire revealed, the parents are urged to- con-
-act a learning disabilities expert.
Project ARK began with an exploratory
meeting held in conjunction with the local
hapter of the Association for Children with
Learning Disabilities and three professional
-ducators from the University of Arizona:
Dr. Jeanne McRae McCarthy, professor of
,pecial education and director of the Leader-
-hip Training Institute in Learning Disabil-
ities; Cissie Dietz, education specialist; and
')r. Michael W. Cohen, assistant professor and
director of the AMC Pediatric Clinic at the
rniversity's College of Medicine. Thispanel
eon became active advisors to the project.
After outlining the plan and receiving help
rom the advisory panel, Kiwanians ap-
roached other service organizations such as
he Junior Women's Club and the Junior
i League of Tucson to serve as volunteers and
.elp the trailer reach more kids. Other vol-
+nteers have included teachers, retired per-
',ns, and Kiwanians.
The better staffed the trailer is, the more
nays a week it can operate and the more
rood it will do, says Allen Simpson, president
c C Sunshine Kiwanis and a prime mover in
the project.
Yet to be solved are the problems of test-
i:g children on the Papago Indian Reserva-
i on, for which bilingual personnel will be
heeded. The Papago dialect became a writ-
tin language only twenty years ago.
But the eight Tucson clubs, along with
Green Valley and Ambos Nogales, report
great interest in the screening operation and
feel a tremendous responsibility to Ali 'the
g: ep in learning disabilities testing that ex-
is led before Kiwanis stepped in.
PPCOENIX'S BIG FEED
call it the big feed, and they come
es to the annual Kiwanis Bar-B-Q
beef, two thousands pounds of
orty-eight gallons of barbecue
dc;: more thin one hundred gallons of "six-
shooter" coffee, two hundred gallons of tea,
a3:d seven hundred gallons of lemonade.
Put on each year by the Kiwanis Club of
the Valley of the Sun, the massive picnic
di, i.ws nine thousand hungry townspeople at
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September 22, 1975 CONGRESSIONAL RECORD -SENATE S 16411
cure the defects spelled out by the ACLU.
I ask unanimous consent that the ACLU
memorandum furnished me be printed in
full at the conclusion of my remarks.
The PRESIDING OFFICER. Without
objection, it is so ordered.
(See exhibit 2.)
Mr. CRANSTON. Mr. President, cer-
tainly we should not pass S. 1 in its pres-
ent form. As to whether it should be ap-
proved in any form at this time, I sug-
gest we wait to see if the Judiciary Com-
mittee accepts much-needed improve-
ments to the bill and succeeds in report-
ing to the Senate, with solid committee
support, a bill which .mitigates the un-
necessary harshness of our present Fed-
eral criminal statutes and reduces, rather
than enhances, the power of government
over our lives. If it turns out that the
bill is not improved substantially in com-
mittee and if there are only slim pros-
pects for improving the bill on the floor,
then I will oppose S. 1 outright.
EXHIBIT 2
AMERICAN CIVIL LIBERTIES UNION OF SOUTHERN
CALIFORNIA-POSITION PAPER ON S. 1
S. 1 purports to provide a more rational,
uniform, and precisely stated federal crimi-
nal law. The ACLU believes that the federal
criminal code requires such revision. Crimi-
nal legislation has proliferated in an un-
systematic fashion over the past several dec-
ades. Court decisions necessary to fill in sub-
stantive gaps have not been standardized by
the Supreme Court. Nevertheless, the ACLU
finds serious fault with the codification of-
fered in 8.1. The bill disregards many of the
sound recommendations of legal experts em-
bodied in the Report of the National Com-
mission of Reform of Criminal Laws (Brown
Commission), particularly those relating to
the structure of criminal sentences, the avail-
ability of defenses, and the crime of con-
spiracy. Moreover, since S. 1 was drafted by
high-placed members of the Nixon Adminis-
tration, it reflects that Administration's now-
discredited philosophy of mistrust for ex-
pressions by the American press and people,
particularly in those sections concerned with
national security, classified information, riot-
ing, and wire-tapping. The bill is so riddled
with defects, that the ACLU of Southern Cal-
ifornia findsit unamenable to piecemeal im-
provements; many of the provisions must be
redrawn from scratch. Some of the worst
problems concern:
SENTENCING STRUCTURE
(a) Length of sentences: According to the
Brown Commission, existing maximum sen-
tences are much too high for the ordinary
offender, and produce unnecessarily long
sentences that destroy any hope of rehabili-
tation. The Commission therefore recom-
mended lower maxima, accompanied by a
"mandatory parole component" within the
maximum, and reservation of the upper
ranges within the ordinary maximum for
"dangerous special offenders." By contrast,
S. 1 provides for maxima higher than cur-
rent penalties in some cases and higher than
the Brown Commission's in all, a parole com-
ponent in addition to the prison maxima,
and extended terms that add to the regular
maxima. In addition, for minor offenses S. 1
Ignores the Brown Commission's preference
for jail terms just long enough to accom-
plish deterrence (since rehabilitation is im-
possible), and for categorization of the most
minor offenses (including possession of small
quantities of marijuana) as "nonjailable in-
fractions". Misdemeanor sentences can be for
as long as one year under ? 2301 of S. 1,
and "infractions" are punishable by five days
in jail.
(b) Consecutive sentences: The Brown
Commission attempted to confine imposition
of consecutive sentences for the same trans-
action to a few exceptional situations and
to limit the length of such sentences even
in those cases. Nevertheless, S. 1 permits
cumulation wherever the criteria for impos-
ing a sentence rather than granting proba-
tion are satisfied, and imposes a high ceil-
ing on such sentences (as high as the maxi-
mum for offenses one grade higher than
the most serious offense of which the de-
fendant is found guilty).
(c) Death penalty: In an attempt to sat-
isfy the requirements for imposition of capi-
tal punishment set forth in Furman v. Geor-
gia, 408 U.S. 238 (1972), S. 1 mandates the
death penalty for certain classes of treason,
sabotage, espionage, and murder. Apart from
moral and political objections to imposition
of this form of punishment, it is vulnerable
as authorized in S. 1 on grounds of vague-
ness and irrationality in the delineation of
suitable offenses. Murder, for example, is a
capital offense if committed in the course
of espionage, kidnapping or arson, but not
in the course of robbery, burglary, or rape.
It is also capital if committed in a "specially
heinous, cruel, or depraved manner," a cate-
gory which allows unfettered exercise of dis-
cretion. Finally, like all mandatory sentences,
a mandatory death sentence vests prosecu-
tors with excessive behind-the-scenes control
in the course of drawing up and bargaining
over charges.
(d) Mandatory Minima and Probation Dis-
cretion: Whereas the Brown Commission ad-
vocated availability of probation for all
offenders unless the judge specifically found
there were sound reasons for choosing incar-
ceration, S. 1 excludes all Class A felonies
and certain other offenses from probation
(including any offense in which a gun or
simulated gun is possessed), and makes it
much less clear that probation ought to be
granted unless prison is the better alterna-
tive. The exclusion of probation contradicts
expert opinion that mandatory minima in-
terfere with judicial discretion vital to fair-
ness in our criminal justice system, and in-
ordinately disadvantage the defendant in the
plea-bargaining process.
(e) Discretion to Grant Parole: Just as the
Brown Commission recommended probation
rather than incarceration unless the judge
finds that some specific purpose (e.g. deter-
rence, rehabilitation, protection of society)
will be served by sending the offender to pri-
son, so it also recommended mandatory grant
of parole for almost all offenders after a year
has passed unless the judge finds that spe-
cific risks are involved or release would un-
duly depreciate the seriousness of his crime.
Although S. 1 establishes parole eligibility
for almost all offenders after six months, the
parole may only be granted if the judge finds
that certain risks do not exist (much more
difficult to demonstrate). By making parole
much harder to obtain and more discretion-
ary that the Brown Commission would au-
thorize, S. 1 exacerbates the problems result-
ing from its high maximum sentences.
(f) Appellate Review of Sentences: This
innovation has substantial support among
judges and legal scholars, and the Brown
Commission favored its institutions. S. 1 does
provide for appellate review of sentences, but
the procedure would be greatly improved if
it 1) included the guidance of judicial dis-
cretion in a general policy statement that
actual sentences be related to specific goals
(e.g. deterrence, rehabilitation, incapacita-
tion); 2) required judges to state findings
and reasons for the record; 3) allowed such
review of all sentences longer than a mini-
mal length, without S. 1's exclusion of all
drug and gun cases, all misdemeanors, and
all sentences where the sentence is less than
one-fifth of the authorized maximum
(making some sentences of six or more years
unreviewable); 4) eliminated the provision
for appeal of certain sentences and all pro-
bation awards by the government, with the
possibility of a higher sentence if the gov-
ernment succeeds. The provision for higher
sentences upon a successful appeal by the
government may well violate the constitu-
tional guaranty agair+st double jeopardy.
DEFENSES
(a) Insanity: S. 1 would allow a defense
of insanity only where insanity caused by an
absence of "the state of mind required as an
element of the offense charged." This stand-
ard is more restrictive than existing law, the
Brown Commission's recommendations, and
the ALI model code's insanity provision, in
that it denies the defense to individuals who
"lacked substantial capacity to appreciate the
character of his conduct or to control his
conduct." Given the purposes and moral
underpinnings of the criminal law, S. l's
refusal to afford such individuals the in-
sanity defense makes no sense at all.
(b) Entrapment: S. 1 reaffirms existing
law on this subject, but rejects the thinking
of the Brown Commission, by allowing this
defense only where the defendant was ? not
"predisposed" to commit the offense charged.
This standard improperly focuses on the
character and past misconduct of the de-
fendant rather than on the propriety of the
police behavior. An objective test, focusing
on whether the police activity would be
likely to cause normally law-abiding persons
to commit the offense, "would permit law
enforcement officers to set up the opportu-
nity to commit the offense, without making
the propriety of police behavior vary accord-
ing to the past criminality of the suspect."
(c) Public Duty: S. 1 allows a new defense
for illegal acts by a federal official if he or
she "believed . that the conduct charged
was required or authorized," unless his or
her belief was reckless or negligent. ? 544(b)
This provision will dilute individual respon-
sibility for public actions, and encourage
federal officials to perceive themselves as
accountable first to their superiors, and only
second to the American public. It is startling,
so soon after the rejection of such defenses in
Watergate-related prosecutions, that Con-
gress might introduce such a justification
for otherwise patently illegal acts.
CRIME OF CONSPIRACY
The Brown Commission proposed to alter
current laws of conspiracy by making it more
difficult to establish the commission or an
"overt act," tailoring the penalty to the tar-
get offense, and barring consecutive sentences
for conspiracy and the target offense. These
alterations were responses to severe and
widespread scholarly criticism of conspiracy
laws on first amendment grounds and on
grounds of susceptibility to abuse. Never-
theless, under ? 1002 of S. 1 an "omission" or
"possession" suffices to establish that the
plotting has gone beyond the talking stage,
even if it does not satisfy the Brown Com-
mission's requirement of being "a substan-
tial step . strongly corroborative of the
actor's intent to complete commission of the
crime." Furthermore, the sentence for con-
spiracy can run as high as 30 years (com-
pared with a maximum under Brown Com-
mission recommendations of 15 years in some
cases, and five years under existing law) ;
and the sentence under S. 1 can be consecu-
tive with-the target offense sentence.
OFFENSES DIRECTED AT NATIONAL SECURITY AND
GOVERNMENTAL EFFICIENCY WHICH JEOPARD-
IZE FREE SPEECH AND PRESS
S. 1 contains a collection of laws that
threaten beneficial dissemination of infor-
mation to the American public, all in the
name of an inflated view of the requirements
of national security and governmental effi-
ciency. While not all of these provisions are
innovations, they all step boldly into realms
of speech and publication clearly protected
by the first amendment. They must be com-
pletely rewritten with greater sensitivity to
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CONGRESSIONAL RECORD -- SENATE September 22, 1975
the retd-so painfully reaffirmed in recent
years-tor vigorous public scrutiny of gov-
ernmentai activity. The most objectionable
of hose provisions in S. 1 relate to:
a) hspionage: Section 1121 penalizes the
knowing collection or communication of "na-
ticuai defense information" with the "knowl-
edsse that it may be used, to the prej-
udice of the safety or interest of the United
States, or to the advantage of a foreign pow-
er. . " The absence of any requirement of
;poeiic intent to injure the interests of the
(Ji: tad States or any likelihood of such in-
jury, coupled with the extremely broad def-
ini.ucn of "national defense information"
and !;he vague reference to the "safety or
inter tst. of the United States", takes this sec-
tion :ar into protected first amendment ter-
ritor). "National defense information", for
example, includes "any ... matter involving
the s, mcurity of the United States that might
be met Lei to the enemy." An effective esplo-
na_:e law can be drafted which reaches only
the narrow class of conduct which genuinely
endangers the public welfare, suchas com-
aninication to hostile governments of in-
for:nation about weapons development or
military contingency plans. Similar objec-
tions are appropriate to the sections of the
act f arbidding disclosure of "national de-
fence information" to anyone who is known
not to be authorized to receive it by Act of
Congress or Executive Order, and requiring
an--, unauthorized person who receives it to
deliver it promptly to a federal public serv-
Acnt who is entitled to receive it (? ? 1122-23).
Disclosing Classified Information: Sec-
tion 1124 makes communication of classi-
des information to "unauthorized" persons
a ielc>nv, even if the individual has neither
the purpose nor the capacity to harm real
national defense interests. Under the origi-
nat version of the bill, it was no defense that
the : niormation was improperly classified
unless the individual had exhausted elabor-
ate. potentially time-consuming administra-
tiv- proceedings seeking declassification.
Recently agreed upon amendments im-
prove the section somewhat by barring prose-
curial where the information was not
lawfully subject to declassification or no
administrative procedures for securing de-
classification or no administrative proce-
dures for securing declassification exist.
Especiady if the words "lawfully subject to
classidcation" are interpreted broadly, enact-
merit of this provision will put Congress in
the position of sanctioning an unfortunate
bureaucratic tendency to excessive secrecy, as
weli As restricting the ability of news re-
porter's to provide the American public with
anvtt,ing other than what the government
decides they should know. Since official and
unofficial "leaks" are a news-gathering fact
of 1ifO, ,it is likely that this provision will be
used selectively to harass independent-
mitnd td. public-spirited . officials. Certainly
there are other actions the government could
take (e.g.. dismissal) if an official disclosed
property classified information recklessly,
wish culpable intent, or for personal gain.
?) iedltion: Recent United States Su-
pre ail 'Jourt precedent permits the govern-
ment to proscribe advocacy of force or of law
violation only when such advocacy "is di-
reciect to inciting or producing imminent
iaw,e::s action and is likely to Incite or pro-
duce such action." (Brandenburg v. Ohio,
:395 U.S 444, 447 (1969) ). By contrast, ? 1103
of-. I as amended in Committee) punishes
one who "with intent to bring about the
?oreible overthrow or destriction of the gov-
ernmen t of the United States or of any state,"
"ir. ites other persons to engage in imminent
iawle:.s conduct that would facilitate the
furcit le overthrow or destruction of such
government." By penalizing words that incite
conduct which merely "facilitates" forcible
overthrow of the government and by failing
to r'equ ire a substantial likelihood that the
incitement will result in such conduct, this
section flouts the protection granted b; the
First Amendment. This disregard for r hts
of tree speech is even more glaring v hen
the sections prohibiting conspiracy ant so-
licitation are linked with the anti-sed. ion
law itself: for agreeing with or persualing
another to engage in seditious incitemer I at
sonne time in the indefinite future would be
a crime. The substantive offense sroul-l be
rev%,itten to conform with Supreme Court
doctrine, and a bar on cumulative incl. )ate
offense should be imposed.
i(l) Obstruction Government Fund: .ens
and Impairing Military Effectiveness: Sec-
tioes 1301 and 1302, prohibiting obstru;ion
of government function:; through irac:l or
physical interference, and ?? 1112 and 114,
penalizing impairment of military effec ive-
ness through false statements and o?her-
wise, all provide heavy penalties for brc idly
and vaguely defined categories of conduct.
They could be used against public oft Sale
and media organlzationa whose aim s to
inform the American people about unla vful
actions such as the My Lai massacre, as well
as against large but peaceful demonstra ions
that interfere with the free flow of traff c to
and from government buildings. As such,
they obstruct and impair vigorous deba a in
the press and on the streets. Unless such
sections are amended to require specific in-
tent to interfere with governmental or tutli-
tary effectiveness and to single out the :cost
serious functions and military activities that
might be impaired, these sections should be
dropped, and reliance placed in other cr mes
such as sabotage, rioting and espionag
(") Rioting: While S. :I's anti-rioting pro-
visions are more precise than current law
in defining a riot, they are deficient in sev-
eral respects. First, they penalize urging par-
ticipation in a riot during the riot (? 183'.(a)
(2) ). Given that a riot is defined as "a p~ iblic
disturbance . . . that involves violent and
tumultuous conduct . . and . . . crew es a
grave danger of imminently causing it jury
or damage to person and property" (? L,34),
and given that there is no requirement that
the defendant's "urging" be likely to proluce
activity in furtherance of the riot, the sec-
tions do not satisfy the Supreme Court':: cri-
teria for appropriate punishment of ".here
speech" (see discussion of "Sedition"), Sec-
ond, when the definition of a riot to include
any disturbance of ten (recently ame':dad
from five) or more persons is considered in
conjunction with jurisdictional prove; ions
encompassing situations where any govern-
ment function is obstru(ted, it become, ap-
parent that the federal government is in-
truding into areas more properly of ocal
concern. The Brown Commission strent ~us-
ly endeavored to avoid just such over-ex-
tensions of federal power,
i f) Wire-tapping: S. 1 largely restate: the
controversial and much abused wire-tar. ping
provisions of the Omnibus Crime Control and
Safe Streets Act of 1968. In view of the lest
recent Supreme Court and Circuit Court of
Appeals decisions restricting Congress's pow-
er to authorize warrantless searches in do-
mestic national security matters (Ut.ited
Stares v. United States District Court, 407
U.S. 297 (1972); Zweibon v. Mitchell (No 73-
1847, D.C. Cir., June 2:. 1975) ), the pro-
visions in S. 1 authorizing taps witho ct a
court order whenever a law enforcemen of-
ficer "reasonably determines that an e ner-
gency situation exists with respect to on-
spiratorial activities threatening the na-
tional security" (? 3104(b)(2)) and exer.ipt-
ing the President from all liability for ire-
tapping instituted, inter alia, "to protect the
United States against the overthrow of the
govenment by force or other unla vful
means," (? 3108) are wholly inappropr;ate.
Inherent in these sections Is a potentia for
abusive surveillance of political dissiden-s or
other disfavored groups.
FEDERAL RECORDKEEPING
REQUIREMENTS
Mir. RIBICOFF. Mr. President, the
Federal Government has attempted to
cope with the ever-increasing growth of
Government records of personal data by
the use of computers and related tech-
nology. Because of the mounds of rec-
ords maintained by the Federal Govern-
ment, it becomes even more difficult to
make sure that security arid confidential-
ity standards for persona:; records apply.
Congress has examined and demon-
strated the need for better control of
technology and the overall management
of automated record systems of the Fed-
eral Government by its enactment of the
Privacy Act of 1974. The act is designed
to provide safeguards to insure individual
privacy against the misuse of Federal
records. Provisions of the act which re-
quire changes in agency recordkeep-
in,--disclosure, collection, maintenance,
access, dissemination, et cetera-become
effective September 27. Agencies will also
be required to notify Congress of their
intention to establish or alter systems of
personal records as requied by the Pri-
vacy Act.
The Washington Post, in an editorial
published Friday discusses some of the
ramifications of the recordkeeping re-
quirements. I ask unanimous consent that
it be printed in the RECORD for the in-
terest of my colleagues.
There being no objection, the editorial
was ordered to be printed in the RECORD,
as follows:
(From the Washington Post, Sept. 19. 19751
FOCUSING ON FEDERAL FILES
A new era in federal record-keeping will.
officially begin Sept.:27 when the Privacy Act
of 1974 goes into effect. The law gives citizens
the right to inspect many kinds of govern-
ment files about themselves, and sets down
strict rules for the collection, use and ex-
change of information about individuals. The
principles involved-accuracy, relevance,
fairness and need-to-know--are elementary
But applying them to the great volume and
variety of federal records has proved to be,
as expected, quite a monumental task.
The part of the law that has generated
the most work and grumbling in many agen-
cie s is the requirement for full disclosure of
the nature of all files involving individuals.
This provision, in effect an annual public
inventory of the government's information
stock, was enacted because Congress found
that nobody knew the full extent of federal
record-keeping about citizens. Some agencies
were maintaining secret flies and concealing
some abusive practices from Congress and
the public. The broader difficulty, however.
was simply that the government's data de-
mands had grown so fast, and had been an-
swered in so many uncoordinated ways, that
not even the agencies themselveshad a firm
grasp of all their information practices.
The inventory Is now nearing completion.
The results are staggering, to put it mildly
even to those who have long suspected thatr.
the government has a file on everything. So
fat, over 8,000 records systems have been
summarized in fat 'volumes of the Federal
Register totaling 3,100 pages and more. The
entries range from the controversial to the
commonplace. There are listings for the sen-
sitive files of the Defense Investigative Serv-
ice; for records of the participants in Na-
tional Security Council meetings since Jan.
20. 1969 (classified "SECRET"); for IOW's
roster of licensed dental. hygienists; for the
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Agriculture Department's list of people in-
terested in forestry news, and for theExwport-
Impoi t Bank's roster of employees who want
parking spaces. There are outlines of huge
computerized networks such as the Air
Force's Advanced Personnel Data System,
summarized in 11 columns of small print;
there are earnest entries for l=ittle lists such
as the key personnel telephone directory of
the Administrative Office, Assistant Secretary
of Defense (Intelligence)-a roster kept, ac-
cording to the Aug. 18 Federal Register (Part
II, section 1, page 35+379), on "8 x 101/2 Xerox
plain bond sheets."
The huge pile of records and lists of lists
may seem to reach new heights of regulatory
overkill. Indeed, there are bound to be jokes
and complaints about the agencies that keep
so many files-and about the Congress that
required such detailed, Indiscriminate re-
ports. But such an inventory, however tedi-
ous to prepare-and however trivial parts of
it may be-is a useful and necessary step.
For the first time, the awesome range of
government records has been catalogued. For
the first time, all agencies have been com-
pelled to define what they collect on indi-
viduals, how the materials are used, who has
responsibility for what, and which records,
primarily in law enforcement fields, are so
sensitive that they should be withheld from
inspection by the citizens involved.
The catalogs and related agency regula-
tions merit scrutiny on a number of grounds.
Many citizens will no doubt want to inspect
various records on themselves. Congressional
committees and interested groups in many
fields may wish to challenge some uses of
data and some exceptions from disclosure,
notably 'the extensive withholding proposed
by the Justice Department on law enforce-
ment grounds. Congress may now be able
to sharpen the focus of the Privacy Act and
modify the reporting requirements for mun-
dane records systems such as internal tele-
phone lists. And federal administrators,
given some time to review their reports, may
well start questioning some of their offices'
data-collecting practices and weeding out
their files. Indeed, it is quite possible that
some bureaucrats, faced with the chore of
cataloguing marginal or redundant files, may
have already employed a very unbureaucratic
strategy: throwing some records out. If that
has happened even in one agency, the Pri-
vacy Act has already done some good.
The Supreme Court, in its opinion up-
holding the constitutionality of the
Hatch Act, stated that-
Its decision would no more than confirm
the judgment of history, a judgment made
by this country over the last century that
It Is in the best interest of the country,
indeed essential, that federal service should
depend on meritorious performance rather
than political service.
This statement, expressed more elo-
quently, sums up my position against re-
peal or relaxation of the Hatch Act.
Those who would change the law con-
tend that Federal civil servants are be-
ing treated as second-class citizens be-
cause they cannot engage in politicking
to the same extent as private employ-
ees. As Howard Pfliger demonstrates in
the U.S. News' & World Report of Sep-
tember 22, this argument is "second-
class nonsense."
Mr. President, I ask unanimous con-
sent that the article be printed in the
RECORD.
. There being no objection, the article
was ordred to be printed in the RECORD,
as follows:
[From U.S. News & World Report,
Sept. 22, 1975]
SECOND-CLASS NONSENSE
(By Howard Flieger)
S 16413
The U.S. Supreme Court, in upholding the
constitutionality of the Hatch Act two years
ago, said Congress had concluded when it
passed the original "that the rapidly expand-
ing Government work force should not be
employed to build a powerful, invincible and
perhaps corrupt political machine.
"The experience of the- 1936 and 1938 cam-
paigns convinced Congress that these dan-
gers were sufficiently real that substantial
barriers should be raised against the party
in power-or the party out of power, for
that matter-using the thousands or hun-
dred thousands of federal employes, paid
for STO'public expense, to man its political
structure and political campaigns.
"A related concern, and this remains as
important as any other, was to further serve
the goal that employment and advancement
in the Government service not dependent on
political performance, and at the same time
to make sure that Government employes
would be free from pressure and from ex-
press or "tacit invitation to vote in a cer-
tain way or perform political chores in or-
der to curry favor with their superiors rather
than to act out of their own beliefs." '
Congress felt safeguards against politiciz-
ing the bureaucracy were prudent back when
federal employes were counted in "the hun-
dreds of thousands."
It is difficult to follow the reasoning of
those who argue such insurance is no longer
needed-now that the number of Govern-
ment workers (not counting the military)
has grown to more than 2.5 million.
As often occurs before a presidential elec-
tion campaign, Congress is being asked to
repeal, or soften, the Hatch Act.
In case you've forgotten, that is a law
making it illegal for Government employes
to take an active role In political campaigns,
to ring doorbells, raise money or rally sup-
port for any party or candidate.
Advocates of repeal-they include politi-
cally active unions-claim now, as they have
in the past, that the Act, which dates back
to 1939, puts strictures on the freedom of
federal employees; that it relegates them to
the status of second-class citizens.
This is plain nonsense.
Government workers have the same right
to register and vote as anyone else has.
They are free to express "their political
preferences and to support the candidate of
their choice with cash if they want.
They can be-and usually are-as politi-
cally minded and outspoken as the next per-
son. Their franchise is unfettered. Anyone
who thinks there is no politicking among
Civil y9ervice employes is naive.
Nobody argues that the Hatch Act is per-
fect. But It does effectively prevent that
which it was designed to prevent: It makes
certain that no candidate or party can con-
vert the huge federal bureaucracy into a
political machine.
The Act has sheltered the rank and file
from any spoils system of patronage re-
wards for the party faithful. No officeholder
can go through the Government hiring and
firing at will on the basis of politics. No
one can tell Civil Service employes how to
vote and keep them In line with threats
of payday reprisals.
They cannot be coerced into party work.
They cannot perform the nuts-and-bolts jobs
of a campaign such as soliciting funds, man-
ning headquarters telephones or serving as
chauffeurs to ferry the voters to the polls
,on behalf of any ticket.
Does this make them second-class - citi-
zens? Hardly. The odds are that those pub-
lic servants who are sincerely interested in
Government performance-and that means
the vast majority of them-welcome the
shield that stands betwen them and party
affairs.
It was a fear the federal payrolls would
be used to perpetuate political control that
produced the law in the first place.
"HATCHING" SECOND-CLASS
NONSENSE
Mr. FANNIN. Mr. President, several
bills have been introduced this year in
both the Senate and House, including S.
372 and H.R. 8617, which would repeal
the Hatch Act.
As my colleagues know,. Federal civil
service employees are "hatched," that is,
they are prevented by law from engag-
ing in political activities or making poli-
tical contributions in. election campaigns.
The purpose of the Hatch Act is to pre-
vent the use of Federal bureaucrats in
political election campaigns at taxpay-
ers' expense, without their approval. In
addition, the law is designed to preserve
the political independence of civil serv-
ants so that political. pressures will not
keep them from acting in the public in-
terest. It would also. prevent a situation
where elected officials would be beholden
to Government employees for support. In
light of the recent lobbying efforts of
many bureaucrats and public employee
unions in behalf of Government pay
raises, I can foresee tremendous problems
for the public if the Hatch Act is re-
pealed.
A FARMER'S CREED
Mr. McGEE. Mr. President, as I have
said so many times before, we can ill af-
ford to have isolationist attitudes re-
garding the industry of agriculture in
America: It is not to be separated from
the mainstream, of life in the United
States nor from the role it plays in rela-
tionships with other countries.
Sometimes, however, we fail to realize
both the economic and humanitarian
contributions the farmer makes. Lately,
his contributions have been greater than
what he makes, but what the farmer is
made of, Mr. President, is best expressed
in what is called the Farmer's Creed as
was published recently in Wyoming
Rural Electric News.
I ask unanimous - consent that the
Farmer's Creed be printed in the RECORD.
There being no objection, the material
was ordered to be printed in the RECORD,
as follows:
[From the Wyoming Rural Electric News]
A FARMER'S CREED
I believe a man's greatest possession is
his dignity and that no. calling bestows this
more abundantly than farming.
I believe hard work and honest sweat are
the building blocks of a person's character.
I believe that farming, despite its hard-
ships and disappointments, is the most
honest and honorable way a man can spend
his days on this earth.
I believe farming nutures the close family
ties that make life rich in ways money
can't buy.
I believe my children are learning values
that will last a lifetime and can be learned
in no other way.
I believe, farming provides education for
life and that no other occupation teachet
so much about birth, growth and maturity
in such a variety of ways. -
I believe many of the best things in life
are indeed free; the spendor of a sunrise,
the rapture of wide open spaces, the ex-
hilarating sight of your land greening each
spring.
I believe true happiness comes from
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CONGRESSIONAL RECORD - SLNATE Septe be;- 22, 1975
watching your crops ripen in the field, your
children grow tall In the sun, your whole
family feel the pride that springs from
their shared experience.
I be:.ieve that by my toil I am giving more
to the world than I am taking from it, an
honor that does not come to all men.
1 'te.ieve my life will be measured ulti-
mately by what I have done for my fellow-
man, snd by this standard I fear no judg-
men ;.
I believe when a man grows old and sums
tip his days, he should be able to stand tall
and feel pride in the life he's lived:
I believe in farming because it makes all
things possible.
CONCORDE TRAFFIC PROBLEM
SEEN
Mr. IIAYH. Mr. President, nearly 2
morlths ago, on July 25, this Chamber re-
jected by only two votes a measure to
prohibit commercial supersonic aircraft
from using U.S. airports until they could
comply with existing Federal Aviation
Admit istration noise standards which
apply to current-generation subsonic
commercial airplanes.
The purpose of that measure, which I
introduced along withSenator PROxMIRE
and Senator CASE, was primarily to pro-
tect the healthy, safety, and comfort of
the people living in the vicinity of air-
ports which-in the near or more distant
future-- would be used by SST's.
Much of the debate revolved around
the noise issue, and I continue to believe
that this Congress has a responsibility to
protecs citizens from excessive noise
levels, and that that responsibility is not
lessened by the fact that a regulatory
agency may be proceeding on a different
course toward a different conclusion. I
refer here to the FAA's consideration of
applications by foreign SST's to utilize
two U. S. airports despite the fact that
these planes generate ear-splitting noise
and low-frequency vibrations sufficient
to rattle windows and dishes in nearby
dwellings.
Another issue in the debate was the
Inequity of a double standard which re-
quired U.S. planes to comply with noise
regulations while permitting an excep-
tion for the foreign-made SST.
Seve-al other disadvantages of SST use
of American airports were cited, notably
the aircraft's inefficient uses of fuel com-
pared rip other planes and the -high cost
of SST travel.
Today. I would like to call the atten-
tion of the Senate to an article which
appeared in the Washington Post on
September 15 regarding yet another as-
pect of the SST problem: the traffic con-
trol problem. The article, based on in-
ternal FAA document, indicates that the
propos- d Concorde landings at Dulles
and John F. Kennedy International Air-
ports may well require adjustment in air
taffic control procedures some of which
could cause delay of other flights.
This position is in contradiction to the
draft environmental impact statement
prepared by the FAA in March 1975. On
page 5:3 of that statement, the following
paragraph occurs.
The Concorde does not require any unique
air traffic procedures in which to operate in
the app roach, cruise or departure phases of
flight cr in ground maneuvering. The air
traffic control procedures currently applied
to susbsonic aircraft are generally applies -)le
to the Concorde.
Mr. President, I ask unanimous q(-n-
sent that the Washington Post article by
Douglas Feaver be printed in the REco:,D.
There being no objection, the art.i- le
was ordered to be printed in the REcon,
as follows:
i From the Washington Post, Sept. 15, 19' 1
CONCORDE TRAFFIC PROBLEM SssN
(By Douglas B. Feaver)
The Federal Aviation Administratio is
claim that the Concorde supersonic jet tra: -
port would not require "unique" air tra fic
control procedures if introduced in + he
United States "is not completely accurst
according to an internal FAA document.
The document, obtained by the nonprc fit
Environmental Defense .Fund, cites five
speed.c situations that could require at lest
an adjustment in air traffic control pros e-
duces. some of which could create delays or
other (lights. An FAA official said yesterday lie
was Confident the Concorde could fly "wit t-
in the system."
The Concorde, a joint Anglo-French ve i-
ture, will be flying regularly scheduled set
ice to Dulles International Airport here a id
JFK Airport in New York in early 1976 if
current FAA recommendation stands.
That recommendation was contained in a
draft environmental impact statement. Tate
FAA has been holding public hearings a- d
taking written testimony on that draft, a:id
is expected to issue a final recommendati %n
and impact statement witain the next f,--w
week; Six Concorde fligts a day-four it to
New York and two here-vwould begin early
next Near.
Aec? rding to the draft statement, "T e
Concorde does not require any unique t-ir
traffic procedures in which to operate in Vie
approach, cruise, or departure phases of fligit
or in ground maneuvering . , ."
But a memorandum signed by Walter D.
Kies, .he chief of the planning staff for t.,e
FAA's eastern region says: "The stateme it
made lint the subject draft ... is not col t-
pletely accurate."
The memo was, in part. a report on a mee
ing with British Airways officials at FAA
headquarters to discuss operating characte -
istics of the Concorde, which would c-tt
Transatlantic travel time from about 7 hou s
to about 31/2 hours.
The most important point appears to co,.-
cern the amount of fuel reserve the Co: --
corde will have. "Special procedures must ` e
set up if delays of 30 minutes or more a ,e
expec-ed at destination airport," the men o
-said.
The memo also said operation of the Co: corde would require that broad bands of al
space be assigned exclusively to the plane s
it climbed or descended, and that a band -,f
altitudes from 43,000 to 48,000 feet would
have to be.reserved for it while cruising. Tiro
-speed would be about 1,400 miles per hour.
Further, the memo questioned whether tl o
Concorde could fly a holding pattern in a.-
isting airspace reserved for that purpose ax d
suggested that changes in takeoff and depa -
ture sequence with other aircraft might l o
necessary because of Concorde's high-r
speeds.
William M. Flener, the FAA's associate at-
ministrator for air traffic and air facilitir :.
confirmed the authenticity of the memoral
dum yesterday, but said, "As far as I'm con-
cerned, the aircraft is going to fit in wil i
other traffic."
Concerning the fuel question Flener sal ~,
"If he gets Into a critical fuel situation, lEa
gets priority-abut so does anybody else. If t
happens time after time, however, then v: e
would have to re-examine it."
He stressed that a final decision to perm:t
the Concorde to land in the United States
has riot been made.
Most of the attacks against the Concorde
have been mounted for environmental rea-
sons. At public hearings here and elsewhere,
persons have primarily complained about the
superjet's noise, and of possible damage to
the stratosphere because of the high alti-
tudes it flies.
The Federal Energy Administration has
said that the Concorde will not be fuel effi-
cient, because It will use as much petroleum
to carry 120 people across the Atlantic as a
slower Boeing 747 would use to carry 340.
THE PROPOSED FEDERAL ENERGY
CORPORATION
Mr. HARRY F. BYRD, JR. Mr. Presi-
dent, President Ford announced today
that lie is recommending -the establish-
ment of a $100 billion Federal Energy
Corporation.
In the plan, the Federal Government
would borrow money, and then loan it
to private business.
Before making a firm decision on the
President's proposal, I will want to study
it carefully.
But I fear that It may be a device
similar to those that helped get New
York State into such grave financial
difficulties.
In this connection, William M. Ringle,
chief 'Washington correspondent for the
Gannett News Service, developed a
highly informative article on the crea-
tion of public authorities in New York
by then Gov. NELSON A. ROCKEFELLER,
now Vice President of the United States.
Mr. Ringle has an intimate associa-
tion with the subject, as he covered the
Rockefeller administration from Albany
for many years.
I ask unanimous consent to have
printed in the RECORD, an article by Wil-
liam Ringle published in the Washington
Star, captioned "How :Rockefeller's
Midas-Touch Trick Went Sour."
There being no objection, the article
was ordered to be printed in the RECORD,
as follows:
How ROCKEFELLER'S MIDAS-'T'OUCH TRICK
WENT SOUR
(By William Ringle)
In Nelson A. Rockefeller's baggage when
he came to Washington was a formula for
his equivalent of the philosopher's stone and
the universal solvent rolled into one.
Like the philosopher's stone, this wonder-
working device seemed to turn baser sub-
stances (in Rockefeller's case, paper bonds)
into gold, or at least money.
Like the universal solvent, it seemed to
dissolve obstacles-especially public debt,
the need for more taxes, troublesome legis-
lators, recalcitrant voters, reluctant union
bosses and political liabilities.
This magic device was called the public
authority.
. Almost any time Rockefeller had a major
money problem in New York of how to pro-
vide university or mental hospital buildings,
housing for those of low and middle incomes.
or commuter railroad cars he created a
public authority.
Last spring, the public authority turned
out to have still another, political advan-
tage: If it goes belly up, it does so after the
creator is long gone and it gives big trouble
to his opposition.
In April one of Rockefeller's pet authori-
ties, the Urban Development Corporation,
became the first major public agency in New
York State ever to declare itself unable to
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September 22, 1975 CONGRESSIONAL RECORD -SENATE S 16415
meet its debts, "The impossible Happens: directed a state commission's pioneering were being repaid by the taxpayers, even
UDC Goes Broke," said a New York Times study of public authorities. It is still some- though the debt technically had been shifted
headline. By that time Rockefeller was com- what of a collector's item among students of from the state's books to the authorities.'
fortably ensconced far away in Washington. government. In 720 pages it described the uses Besides the bookkeeping sleight of hand,
His Democratic successor, Gov. Hugh Carey, and abuses of public authorities. the authority device provided a number of
who by then had scarcely had time to learn They operate-in secret, if they wish-out- advantages.
the way to his office, was forced to pick up side the conventional controls by elected One, whether he intended it or not, was
the pieces. officials. political. Rockefeller was then running for
Republicans in New York have yet another And they can, by selling bonds, run up president and trumpeting "pay as you go."
bonus in prospect. The UDC was bailed out, debt without the approval of the voters or The authority gimmick enabled him to go
to the tune of a half billion dollars, but only the legislature. This is perhaps the most im- around the nation and claim that he was
temporarily (until Nov. 1, 1976) : The odds portent aspect of the authority because many doubling the size of the state university or
are that Carey next year again will be forced state governments are forbidden by their adding $300 million in mental hospital space
into the time-consuming, distracting and constitutions to go into debt (that is, to bor- without adding to the state's debt and with-
embarrassing business of cleaning up another row by selling bonds or notes) without ob- out raising taxes. This claim, a legal truth
UDC mess. taining the voters' aproval The public au- but a practical misrepresentation, made
In addition, New York State's Housing Fi- thority is a way around that obstacle Rockefeller seem like some kind of adminis-
nance Agency, still another Rockefeller pub- (A few. may recall that Rockefeller became trative miracle worker, an aura that he re-
lic authority (it is the agency that markets governor in 1958 after taking the hide off tains in some quarters today.
bonds for public authorities) which needs to his predecessor for running up an $879 mil- Another was that authorities enabled
borrow $100 million a month just to tread lion debt, all approved by the voters. Fifteen Rockefeller to avoid the cumbersome, time-
water, served notice on the state just last years later, when Rockefeller left office, the consuming process of government-the ap-
week that it has no reliable source of funds state debt was listed as $11 billion, with only proval by legislators, whom Rockefeller does
in sight. $3 billion of it approved by the voters. The not hold in high esteem at any level, and
Yet, with the smoke from UDC still on The rest had been run up by public authori- the voters, who were demonstrably against
the horizon and the HFA troubles looming, ties.) more public housing and might have resisted
Vice President Rockefeller-whose sense of Ronan's study also noted that the debt the badly needed state university expansion.
timing in the past has been less than ex- acquired by authorities is not subject to The authorities enabled Rockefeller to exer-
quisite-has been pushing for the same gen- those early-warning systems, state or munici- cise his considerable "papa-knows-best" in-
eral kind of answer to the nation's energy pal debt ceilings. A public authority's debt stinets.
problems: a public authority that would is its own obligation and is not. lumped in Finally, the authorities had the benefit of
float bonds and raise up to $100 billion. with total state debt. "... Many public au- postponing, if only for a while, the need to
Rockefeller's idea was to create a "new thorities in New York have been created to raise taxes.
government corporation" that would: avoid debt limits," said the Ronan-directed It was not long after Rockefeller's first ven-
Guarantee loans for private industry, or study. ture into public authorities that his tactics
Raise money by selling its own govern- Despite the authorities' freedom from state began to draw fire.
ment-guaranteed bonds and then make di- restrictions, Ronan's study conjectured that As early as 1963, two corporations that
rect loans in industry. If an authority could not meet the payments rated state bonds-Dun & Bradstreet and
"Theoretically," explained The Wall Street of its bonds and went broke, the state's tax- Moody's'Bond Survey-were warning of the
Journal, which first revealed the scheme, payers would have a tacit obligation to pay consequences. ". . . The state, in a shower of
"Washington would be able to steer great its debts. This, he said in 1956, could be a politically oriented slogans, is resorting to
quantities of private money into vital areas "moral obligation." (Prophetic words: That borrowing through special agencies and is
without tying up great quantities of public is exactly that happened after the UDC de- increasingly earmarking revenues for this
money." claed insolvency in April.) new debt," said D&B. "A continuation of
Because this is almost exactly the language Rockefeller laid the foundation for public these policies could eventually affect the
Rockefeller used in promoting his authori- authority financing in 1960 with the Housing state's credit standing ..."
ties in New York State, it may be worthwhile Finance Agency. By then, Ronan, the old After several years, D&B and Moody's, fol-
to look at how and why these developed and maestro of the public authority, was Rocke- lowed by Standard & Poor's, lowered New
what has happened to them. feller's administrative alter ego. And Mitchell York's triple-A credit rating a notch.
The public authority-sometimes called generally gets credit for drafting the HFA Instead of acting to curb Rockefeller, the
the "public benefit corporation"-in its pris- legislation, of which more will be said later. pliant legislature turned on the bond-rating
tine form is simply a means of letting the Gradually, authorities proliferated. In 1962, companies with threats to outlaw them,
users of public projects pay for them. confronted with the need for hundreds of The dour state comptroller, Arthur Levitt,
For example, an authority might be set up millions, perhaps billions, to enlarge the repeatedly lambasted Rockefeller's "backdoor
to build and operate an expressway or a state university, Rockefeller created?the State financing" "fiscal legerdemain" and "phan-
bridge. To raise the money, it would . sell University Construction Fund. tom debt."
bonds. Over the years, to pay off the bonds Then, there was the Mental Hygiene Fa- Robert Morgenthau, the Kennedy-picked
with interest, and to pay for operating the cilities improvement Fund to erect buildings Democrat who ran against Rockefeller in
road or bridge, it would charge tolls. The at mental hospitals (in those days a big part 1962, articulated the case against the author-
project successfully financed by an authority of every state's budget). Both sold their sties. But he proved such an insipid cam-
would literally pay for itself-be "self bonds through the HFA. paigner that no one listened. Besides, his
liquidating," in the government lingo. The UDC came along in 1968, after voters criticism, like Levitt's, was discounted as
The authority classically is used to do a had defeated two low-income housing bond coming from a Democrat.
issues. By then even the legislature was balky. The fledgling Conservative party, made up
job. an the that has a extra dimension example, is not in An angry Rockefeller-who had hoped to get largely of apostate Republicans, also had the
power plants a to o the "revolutionary" legislation enacted to' authority Issue pinned down in 1962, but its
authority the state's usual might line operate work. For
counter black hostility after the assassina- strident across-the-board objections to any
generate and sell electricity
pro- tion of Martin Luther King Jr.=threatened government spending all but drowned it out.
government. it partnership
might t pro- to withhold patronage and veto ' bills the Mitchell played a major role in making the
vide a foreign that transcends ordinary
vide a facility that a- ui v and up op- legislative rebels were interested in. The UDC authority bonds more palatable to bond buy-
litical erating boundaries a sports (such h stadium at to serve e two coun- bill passed. ors. Since the bonds were issued by public au-
ties, tieses, or a farmer's market serving a v a vast t re re- Rockefeller's authorities had a twist. The thorities alone-mainly the UDC or HFA=
gion of many cities and counties; or a sea- projects they financed did not exactly pay they did not have the "full faith and credit"
port or airport serving a wide region). for themselves they were not "self-liquidat- of the state behind them.
ing," although he continues to insist they Obaining that would require.the approval
The members of an authority, often three were. of the voter which Rockefeller, after his set-
to six in number, operate as a kind of free- backs, was reluctant to seek.
wheeling board of directors. They combine What Rockefeller did was to spin off some Mitchell is
the flexibility and independence of a private conventional state responsibilities, such as given credit for language in the
business with the power of government. the construction of college buildings or men- HFA law acknowledging the "moral obliga-
tal hospitals, and give the job to a public tion" of the state to make good on bonds
In any narrative of Rockefeller's enchant- authority. should an authority collapse. Other states
ment with public authorities, two men loom Since these kinds of structures did not adopted the same language.
large. One is his former all-purpose brain themselves generate any new revenues, as a Theoretically, this would reduce the risk
truster, William J. Ronan. The other is John new toll road or a bridge would, he then so that buyers would accept them at a lower
N. Mitchell, once one of the nation's leading earmarked students' fees and mental hy- interest rate. However, since the collapse of
municipal bond lawyers who was later to be- glens patients' fees to pay off the bonds. UDC and New York City's latest insolvency,
come President Nixon's attorney general. . Because such fees previously had been that hope is somewhat beside the point. New
In the early 1950s, Ronan, then dean of going into, the state's general funds, this York's "moral obligation" is Indeed being
the New York University Graduate School of meant the slack would have to be taken up called upon-to the tune of $285 million of
Public Administration and Social Science, by tax revenues. So, the bonds indirectly the taxpayers' money for UDC bonds, to date.
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i t+xl'.i CONGRESSIONAL RECORD-SENATE September :22, 197J
;'tc ctrrr money to meet UDC's debts was
borro'vel last, spring from such places as a
state fund that pays claims when there's no
insuran?e after an accident, from the state
employes' retirement system and from a con-
sortium of savings banks. Thus, it Is possi-
ble that. the taxpayer will have to reimburse
them and may end up paying the entire half
billion. Yet the UDC was to have been a
device, like Rockefeller's proposal for a fed-
eral energy agency, to avoid "tying up great
quantiios of public money."
flow did New York State get in such a
pickle?
One, retsson was that the legislature was
not only tractable, but found the hazards
at auhority borrowing, although simple in
concept beyond its narrow attention span.
Many other contributed to the mess. They
Include: A subservient State Budget Divi-
sion: a trusting and adulatory press (with
the exception of the New York Times, which
spoke oirt early and often against the back-
door bo'rowine); a neutralized band of lib-
erals who didn't question the means so long
as they approved of the ends; and trade
unionists who savored the good jobs that
the subsequent construction generated.
R,ocaefeiler's new federal proposal-for an
Energy Resources Financing Corporation-
s.eems to be getting more scrutiny than he
was accustomed to in Albany.
Alan Greenspan, chairman of the Coun-
cil of Economic Advisers, blasted draft pro-
posals l rerause of the "virtually uncon-
strained" :scope of the corporation's opera-
tions. The corporation itself could get into
almost, any :aspect of the energy business, or
could bankroll others.
The corporation coud avoid dealing with
those persnickety bond buyers who were
such a nuisance in Albany. The draft legisla-
tion would permit it to sell bonds to trusts
and. f
iduciaries that are under federal con-
trol.
The,: means that money going into the
Social security "trust fund" or other re-
tirement money could be "invested" in
ERFCO. And if ERFCO performed in the
manner of UDC or HFA, pension money
would be lost and the United States would
have to step In and make up the difference.
With his new corporation, Rockefeller
would- 't have to resort to John Mitchell-
inspired sugestions of "moral obligation" in
order to make the bonds attractive. The bills
say they'd be backed by the "'full faith and
credit" or the United States.
IHOW THE OIL COMPANIES HELP
`?'H fl ARABS TO KEEP PRICES
IIIGHI
dlr. CHURCH. Mr. President, an ex-
cellent article by Anthony Sampson ap-
peared In New York magazine, Septem-
ber 22, 1975. Mr. Sampson concludes
that the oil companies are willing tools
of OPEC in OPEC's effort to continu-
ously raise oil prices. As Mr. Sampson
succinctly states:
There is one obvious answer to the ques-
tion of how to break up OPEC. It is to break
up the giant oil companies. . ,
I recommend this article to my col-
leagues and to the members of their
staffs who are responsible for oil policy,
and ask unanimous consent that it be
printed in the RECORD.
There being no objection, the article
was ordered to be printed in the RECORD,
as follows:
IH.r,w THE On, COMPANIES HELP THE
?Rase To KEEP PRICES HIGH
(By Anthony Sampson)
On September 24 in Vienna, the members
of the Organization of Petroleum Exporting
Countries will meet once again to settle its
world price of oil, while the consuming cott-.-
tries will watch helplessly, waiting to e e
what they must pay for the fuel which ;s
their lifeblood.
It is two years since the crisis first begs i,
a time In which the price of crude oil fir t
doubled, and then doubled again, and whit 11
revealed to the world the existence of 'n
effective international cartel of produci? g
countries. Since then there have been a su -
cession of twists and turns of policy and
attitude in the Western capitals: first ou
right disbelief at the existence of the ca -
tel: then patient expectation that it could
never survive; then (at least from Washin:;-
ton) a determination to confront it with a
solid front of consumers: then total di -
array among the Western nations, each wi"t
a different attitude toward cif and the Arab
then a gradual acceptance, at least in ti e
United States and Britain, of the idea th..r.
the price of oil might remain where OPI.
had fixed it.
At the same time the consuming gover:
ment. have tried to apply themselves, wit i
equal lack of success, to the problem of tle
international oil companies. the "Seven Si ters." to whom they had given so much r--r-
sponsi'3ility for maintaininc: the supplies .1
cheap oil over the last four decades. First tl e
politicians, goaded by the consumers, wee
simply outraged by the fact that the con
palsies had lost, overnight, all their bargain
ing power and leverage to keep prices dow
and were powerless to ensure crude supplie .
Then -hey were still further enraged by tie
vast increases in the company profits, all I
determined to cut them back and contr l
them. Then they were confused by the nec -1
to develop their own national oil resource
which were largely in the hands of the san
Seven Sisters. Then they were slowly r' -
signed to the notion that there was no pray
tical alternative to leaving their oil In the
hand::.
The companies, in the meantime, lie*.
emerged, much more clearly, as the mo;
powerful corporations in the history of tl
world- In Fortune's annual list of the bird -
gest companies, the ten biggest America
industrial corporations include five of tl. '
Seven Sisters, led by Exxon. which has no ?'
overtav:en General Motors as the biggest corr. -
pany ( by sales) in the world. The six othe.'
are: Royal Dutch-Shell, Texaco, Mobil, Bri'
ish Petroleum, Standard Oil of California
and Gulf.
And. the sinister side of this financlr
power has emerged in a succession of spec -
tacular revelations about the extent of o
bribes. Oil companies have a unique rept -
tation for large-scale bribery ever since tb's
turn of the century, when John D. Archbolc,
who succeeded the first John D. Rockefellc r
as the head of Standard Oil, set up a networ':
of bribes of senators and congresmen to en -
sure his company's monopoly. Some evident,,
of the continuing underground rivers of o.;
money emerged In the Watergate hearings.
when Gulf Oil confessed to having secretiv
paid .5100,000 to Nixon's election fun.:
through cash raised in its Bahamas subsidi
ary. But the full dimensions did not emerg.-
until Senator Frank Church's investigation
this year. They revealed, among other in
stances, that Gulf had paid $4 million fror_-,
1966 to the ruling party of South Korea, an,.,
still more sensationally that Exxon had mad'=
secret political payments totaling $51 mil
lion over eight years in Italy alone.
What is disturbing about these huge pay
ments is not only their capacity to corrup
and subvert foreign governments, but the
evidence they provide that giant corpora -
tions, supposedly responsible to sharehold.
ers and controlled by auditors and rigorou
internal accounting, are able to conceal such
large sums and direct them secretly for them
own purposes. They powerfully suggest that
the oil companies, in both the technical and
the general sense, are unaccountable.
But a, more serious. and enduring doubt
about the great companies concerns their
relationship with the OPEC cartel. Are they
genuinely concerned to break up the con-
trol by this group of sovereign states, and
to bring down the world price? Or are they
in fact helping to underpin the oil producers'
cartel? On these questions I have tried to
assemble the evidence that has emerged in
the last two years, and have talked with the
leading participants wtahin OPEC and the
companies. The story that emerges is an ex-
traordinary one which, I believe, raises great
doubts about the role and loyalties of the oil
companies,
In looking back at the first crisis of two
years ago, it is necessary to bear In mind two
crucial factors. First, that OPEC had been
essentially the creation of the Seven Sisters.
Not at all in the sense that they wanted it,
but to the sense that OPEC was from the
moment of its foundation in 1960 conceived
(as one delegate put it)~ as "a cartel to con-
front the cartel." Without the past history
of connivance of the companies, OPEC would
never have happened. Nor could it ever have
solidified without a single extraordinary
blunder in the board room of Exxon,
In July, 1960, the Exxon directors agreed-
against the advice of their Middle East ex-
pert, Harold Page-unilaterally to reduce
the "posted price" for Middle East oil, a deci-
sion which was swiftly followed by the other
six sisters. Thus, all their revenues from oil
taxes,. which were based on this "posted"
price. drastically reduced overnight by the
actions of a group of private companies. It
was a certain recipe for Arab unity, as many
experts had warned: and it worked. The key
producers clubbed together to form OPEC,
and even the shah swallowed his resentment
of Arab radicals in his anger at not being
consulted by the companies, and joined the
new chub.
Secondly, in spite of this crass mishandling
of the oil producers, and many other errors
that followed, the oil companies were per-
mitted by the Western governments, and
particularly by Washington, to maintain ef-
fective control over internationaloil policy
over the next thirteen years, so that when
the crisis eventually came, both governments
and the public were totally unprepared for
it. To be fair, a few oilmen, notably in Shell
and Mobil, had issued warnings to govern-
ments, and governments were at least as
much to blame as the companies. But most
of the company men were arrogant enough
to suppose that they could handle the situa-
tion on their own.
Thus, In the critical October of 1973, the
confrontation with OPEC was once again
left in the hands of the Seven Sisters (now
joined by a few independents), in spite of
the fact that only two days before, the Mid-
dle East war had broken out, which trans-
formed the whole political equation. The ne-
gotiation about the oil price, not surprising-
ly, quickly broke down; but the actual nature
of the breakdown, only very briefly recorded
at the time, is important to reconstruct, for
it marked the historic turning point when
the West suddenly lost its once-absolute
ability ,o settle the price of oil.
By the night of October 11, with the war
raging across the Suez Canal, the oil-com-
pany delegates had failed to reach any agree-
ment with the Arabs about the new price of
oil. The oilmen -were already well aware,
through. price warnings from Saudi Arabia,
of the likelihood that the Arabs would en-
force in embargo of oil to the United States
(as they did nine daye later). At midnight
George Piercy, the director of Exxon respon-
sible for the Middle East, paid a call on Sheik
Zaki Yamani, the Saudi Arabian oil minister,
in his suite at the top of the Intercontinental
Hotel in Vienna. Plercy, a rugged engineer
with bushy eyebrows who had worked his
way up in the oil business through the "Texas
pipeline," was a technician, not; a diplomat,
and he had decided, advised by his colleagues,
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Gallery of the Senate. daily. He reported
the deliberations of the Senate-a very
difficult job, I know.
Jack Bell was the type of'newspaper-
man who had the confidence of the
Members of the Senate. He had the con-
fidence of the political leaders, Includ-
ing Presidents, with whom he had much
contact over the years. I think one of the
finest tributes paid to Jack Bell came
from a longtime associate, who some
years ago was chief of bureau for the
Associated Press in Washington; namely,
Paul Miller, now chairman of the Asso-
ciated Press and chairman of the Gan-
nett newspapers.
Mr. Miller, in a tribute yesterday,
made this comment:
Jack Bell, my life-long friend and cowork-
er, landed on the Washington scene from
Oklahoma before World War II and from the
first and throughout his brilliant career was
recognized as one of the most able news-
men ever.
He knew politics as well as most of those
actively involved and was trusted and re-
spected by all. As a columnist for Gannett
News Service afer his retirement from the
Associated Press, he drew on his background
and wide acquaintanceship for comment
that was admired for depth and incisive-
ness as his reporting had been admired for
completeness and balance.
COAL CONVERSION ENERGY SUPPLY
AND ENVIRONMENTAL COORDINA-
TION ACT AMENDMENTS OF 1975
Mr. RANDOLPH. Mr. President, I ask
unanimous consent that a bill I am in-
troducing be considered as having been
read twice and placed on the calendar.
The ACTING PRESIDENT pro tem-
pore. Is there objection. The Chair dears
none, and it is so ordered.
QUORUM CALL
Mr. RANDOLPH. Mr. President, I sug-
gest the absence of a quorum.
The ACTING PRESIDENT pro tem-
pore. The clerk will call the roll.
The second assistant legislative clerk
proceeded to call the roll.
Mr. HUGH SCOTT. Mr. President, I
ask unanimous consent that the order for
the quorum call be rescinded.
The ACTING PRESIDENT pro tem-
pore. Without objection, it is so ordered.
ACT OF 1975
xcvd
Mr. HUGH SCOTT. Mr. President, I
have requested this time to discuss the
Criminal Justice Reform Act of 1975
(S. 1) of which I am a cosponsor, along
with numerous other Senators.
Several weeks ago I supported the
chairman of the Judiciary Subcommittee
on Criminal Laws and Procedures (Mr.
MCCLELLAN) when he urged that the bill
be reported to the full committee. In do-
ing so, however, I reserved my right to re-
vise several controversial aspects of the
bill that I found troublesome. In par-
titular, I am cone reed about several ator BATH would require that the infor-
portions 6Fthe bill that sse ming m nation pertain to "vital defense secrets,"
purg upon our constitutional) rotecte
e those that if revealed would pose a "di-
fr e o - rect, immediate, and irreparable harm
o
owing these e remarks, I would ex- to the security of the United States."
feet certain comments to be made by the These would be limited to four cate-
distinguished Senator from Indiana (Mr. gories: Code or cryptographic informa-
BAYH) who shares my concern over these tion, specific information on war plans,
vital matters and who has announced his specific information on weapon systems,
intention to offer certain amendments, and certain specific atomic secrets.
which I Intend to support. Otherwise the
We are not alone in our desire to are substantially penalties
lower, wer, for often dnob-
only job-
amend the proposed legislation in order related.
re
first amendment to the Constitution. My
distinguished colleague from Nebraska
(Mr. HRUSKA) has also recently intro-
duced far-reaching amendments that
seek to remedy these shortcomings. His
amendments-thoughtfully considered
and skillfully drafted-reflect a states-
man's sensitivity to, and appreciation of,
the constitutional Issues at stake. I know
that his proposed amendments will be
given the closest attention by the Com-
mittee on the Judiciary when it ham-
mers out the final version of the legisla-
tion.
I understand that other Senators on
the committee also plan to offer amend-
ments in addition to those of Senator
BAYH, Senator HRUSKA, and myself, that
In effect, Senator BAYH's amendment
adopts for the criminal law the same
constitutional standard that the Supreme
Court requires before it allows the Pres-
ident to impose a prior restraint on the
publication of national defense infor-
mation.
This draft of S. 1 specifically exempts
journalists from prosecution if they re-
ceive classified information from per-
sons authorized to have it. However, this
exemption does not specifically extend to
the disclosure of the above-mentioned
"national defense information." I con-
sider this a major oversight, and one that
the Senate must correct. Although Sen-
ator BATH does not specifically exclude
the press from liability as an accomplice,
ally protected freedoms that we value so this section, he would do so by implica-
highly in this country.. The that y r from tion unless the disclosure caused direct,
Massachusetts (Mr. KENNEDY) and the immediate, and irreparable harm to the
en security of the United States. Senator
ary an r ATHIAS HRUSKA would also exempt the press un-
will a ress s TO e- wiretap less it has actual intent to Imperil the
prov s ons. Sena or uNNEY insanity e- safety of the United States or its
fense, Senator BURDICK sentencing and Armed Forces.
parole, and Senator PHILIP A. HART drug THE DISCLOSURE OF OTHER CLASSIFIED INFORMA-
abuse. With such careful scrutiny, I ex-
pect that the final version of the TION
pro- Senator BAYH and I are in total agree-
posed legislation will avoid the constitu-
tional pitfalls contained in the e earlier ment that the press and media
draft, specifically exempted from liability for
I hope that either now or subsequently, crimes under these provisions.
today, we will have the comments of OTHER FAT AMENDMENT CONSIDERATION
the Senator from Indiana (Mr. BAYH). A number of other sections of the pro-
Meanwhile, i wish to recount briefly the posed legislation require revision to elim-
major areas relating to the proper func- inate the possibility that in enforcing the
tioning of a free press in which I find law an overzealous official will not in-
amendment necessary. Though other trude on the media's first amendment
changes are necessary, time limitations prerogatives. Briefly, these are the see-
preclude a discussion of them at this ions that deal with theft, obstructing the
DIS
CLOSURE OF NATIONAL DEFENSE INFORMATION
This section relates to the control of
information held by the Government.
The bill as originally drafted creates a
new offense that punishes the disclosure
of classified Information held by a Gov-
ernment employee or Government con-
tractor to anyone not authorized to re-
ceive it. Senator BAYH Proposes that the
bill-limit the offense to the transfer of
classified information to a foreign power
or agent of this foreign power with an
intent that It be used to the injury of
the United States or the advantage of
any foreign power, - Senator HRUSKA
would seemingly narrow the ambit of
the provision still further, by requiring
only an intent to prejudice the safety
of the United States or its Armed Forces.
As drafted, this section also fails to
define with precision the type of infor-
mation that falls within the meaning
of "national defense Information." Sen-
government record, obstructing a Gov-
ernment function by physical interfer-
ence, instigating the overthrow of the
Government, obstructing military re-
cruitment, or induction and interception
of mail.
Senator BATH has addressed several of
these issues, as has Senator HRUSKA.
To summarize, i think that the Com-
mittee on the Judiciary has a great deal
more work to do on this bill. Under no
circumstances will I support legislation
that runs counter to the first amend-
ment or interferes with freedom of the
press.
My own office has been considering
revisions similar to those of Senators
BATH and HRUSKA for some time, but
since the proposed language of the BAYH
and Hruska amendments has met. with
the approval of various concerned
groups, I believe that I would best pro-
mote the adoption of these needed
changes by supporting the Bayh amend-
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CONGRESSIONAL RECORD - SEr ATE era r .16, 1,975
me.Ats, the Ilruska amendments, or a modifying and perfecting efforts, how- and this method has been successfully
combination of the two. ever, we should not lose sight of the basic used in other bulky and controversial
out cf an abundance of caution, we purpose of this measure or of its other bills. Iref t is a matter
and ofaxnensta t forming
on the Judiciary Committee must be cer- meritorious features,
tarn that two interests are served-the I am deeply interested in compensation In June 1973, the Senator from Arkan-
Preservation of the rights of our free for victims of crimes. The President ha sas, in introducing the original S. 1, said:
press and the protection of our national now exhibited similar interest in such e. S. 1 is far from a final penal cede, but I am
security. ?L know that Senator BAYH and program. I am interested as well fir. osatisfipd utlines thatsoundits structure. it only as gener
Aral
Senator 1IRUSKA have similar concerns, strengthening penalties against gal outlinry and immediate work p;-oduct,
and their amendments, which I gener- criminals. The act of carrying a gun ix .
ally support, or a combination of them, the commission of a crime is a separat He goes on to say:
achieve this proper balance. offense; courts must be compelled t> I know that some provisions will be con-
I rs p .-a-t that I hope that Senator BAY11 treat it separately, to improve the sepa troversial. Indeed, there is much room for
will have an opportunity to comment lat- rate sentence, to make it mandatory an< debat- on number have nothe peach on sr as
er in tl.e- session. to let the gun offenders know that ther judgments
would. be glad to yield to the Senator is no escape from his wanton act of via _ they are now drafted. There is much that I
from Montana. lence in choosing such a weapon to per - wish ,o study further. My mind is not made
MANSFIELD. Mr. President, there peg 'ate his wrongful acts. up deiinitely on everything the bill contained
Mr. .
has been a good deal of misconception I am delighted that the Republica i The Senator from Pennsylvania re-
abou, 3. 1, and I merely wish to take leader has on this occasion made h,3 ferred to several issues that will be in the
this means to aline myself with the position clear and I concur with hii=1 controversi l a alt matter rea such asof hiparol matter of
remarks made by the distinguished Re- completely
publican leader. - Mr- HUGH SCOT'T'. I thank the die- sentencing, and other matters.
There are two sections of that bill in tinguished Senator. I also support, as tke We have already engaged in that proc-
whi&'i I am vitally interested. One has Senator knows, both of the provisions *o ess, Mr. President, on one portion of S. 1.
to do with compensation for the victims which he has referred. I refer to one of the more controversial
of c::-fine, which passed this Chamber I yield now to the distinguished sent' r points in the bill, capital punishment in
five separate times, and which has not Senator from Nebraska. certain cases. There was g:reat contro-
even as yet considered in the House. Mr. HRUSKA. I thank the Senat r versy about it and, by agreement between
Another section has to do with the from Pennsylvania. the Senator from Arkansas and this Sen-
carrying of a gun during the commission I take this opportunity to say the ator, there was a separate bill, S. 1401,
of a crime and the strengthened penal- statement he has made on this bill well introduced on the subject in the last
ties fo:? such an offense which also passed describes the issues and the procedur -s Congress. It was thoroughly and vigor-
this Chamber on at least one occasion, to which resort will be had in process1 g ously debated on the floor here, as it had
I believe, but received no action in the S. 1 to final enactment. been. on various occasions, and the vote
other body. There is general agreement, Mr. Pm 7- was in favor of the reinstatement of the
What this latter provision would do ident, between the amendments whicl I death penalty as limited. The vote was
would be to make the penalty for carry- have proposed and those referred to `)y 54 in favor and 33 against it. There are
ing a gun in the commission of a crime the Senator from Pennsylvania, as w "M 30 some odd States that have done the
absolute and so severe as to deter the as the amendments proposed by the Se-e- same thing.
gun o:lender. The act of carrying a gun ator from Indiana. The Senate and the country-at-large
wouid be truly treated as a separate On June 27 of this year I stood on t '-le can be assured that in the main some 80
offense for which there would be a sep- floor of the Senate to expound in that to 85 percent of the text and the body of
arate and distinct sentence. That sen- same direction and with those sane S. I is a reenactment, recodiflcation, a
tence would not run concurrently but issues in mind. restatement, of present law,
would be meted out in addition to the Then, on August 15, I made an I thank the Senator for having yielded.
sentence. imposed for the underlying announcement and released spec'.Sc Exxn3rr 1
crime, In addition the sentence for car- amendments which were followed later FLOOR STATEMENT, IT J
1 fN7, 1975, of
ryirtg the gun would be a true manda- by those from the Senator from India :1a RonaEN L. HUNM RII83ZA
Cory sentence. I think this is one way to and by the Senator from Pennsylvania, MY. President, A President Fore's Message
get at the gun people-those who use with the same thoughts in mind, that on Crtme to Congress re June 19, 1975, lauaa-
that weapon in carrying out their crimes there would be in the final processing, on. reference n made onto pending S7natedill
cif violence. I think it would be most consideration given to changes arc ng g 1, the Criminal Justice Reform Act of 1975,
salutary and an effective way to deal these lines, insuring freedom of expr~s- a bill with which I have been connected for
with and deter the use of such weapons sion in this country: Mr. President, I L~sk the past ten years, and which is a massive
of violence. unanimous consent that my remarks of effort to codify and revise. the criminal laws
cis far as the other parts of S. 1 are June 27 and my August 15 release with of the United States.
concerned, it should be pointed out that the attached appendix of specific amex.d- In view of its broad purposes, S. 1 neces-
the major thrust of the measure con- ments be inserted in f0l at the cone u- sarily touches upon many areas of the Fed-
.is of my remarks. eral criminal law which are of great concern
cdt o o the eliminate minate I ir1nOOY1 the 5iSteriCi sencie3-a re- criminal The PRESIDING OFFICER. With )ut to the people of this country. In any attempt
coode to deal with such volatile issues as capital
form which is long overdue. However, objection, it is so ordered, punishment, the insanity defense, appropri-
as the distinguished Republican leader (See exhibit 1.) ate lengths of sentences, increased sentences
leas pointed out, it was my understanding Mr. HRUSKA. May I also say to the for special dangerous or repeat offenders,
that there would be a good deal of Senator from Montana that I am in new sentencing treatment of certain mari-
amending by the committee; that the favor of both of the sections in witch jua.ne offenses, and parole and probation, to
proposal, S. 1, would not come out in its he has expressed interest. He know: of mention just a few, some opposition to any
ori;i:aal form simply because as intro- my support on previous occasions :end Poeitton taken is to be expected. Indeed, it
that support will be constantly forth- is even welcomed in the interests of informed
drlced it contained certain items that debate so that the crucible of Congress, rep-
untess modified strike at the heart of coming. resenting the people, may decide. It should
rigris and protections safeguarded by Mr. MANSFIELD. Mr. President, if the be remembered that in addition to the con-
the Constitution. As far as I am con- Senator will yield, I do certainly know troversial provisions, there are also dozens
cerned. for example, I am opposed to of his support, and he has been on- of and dozens that are unquestionably ad-
those provisions which affect freedom the most ardent supporters of those two vances: expanded recognition of civil rights;
sections of the bill. compensation for victims of violent crimes;
the press and so-called national de- increased fines for regulatory offenses cur-
fe
fensi~ issues. I am also concerned about Mr. HRUSKA. Mr. President, this en- rently inadequately deterred; prohibition of
the wiretap provisions, the insanity de- tire and encyclopedic bill will be p-oc- "drty tricks" and other political tactics of
fellse provision, and other matters, and essed by considering and carefully exam- Watergate fame; and a tighter crackdown on
I do not Intend ; to support them nor fining competing positions in inter, give organized crime, to name only some.
have IT ever intended to do so. In our committee sessions. it has over 750 pf ges, The controversial provisions must not be
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S 15957
considered in a vacuum: for example, the in-
creased sentences for some crimes must be
considered together with the lowered sen-
tences for others (including the lowered sen-
tence for non-commercial possession of small
amounts of marijuana) and together with
S. is innovative concept of appellate review
of sentences.
One particular area of controversy needs
special mention, as it has been the area of
some press criticism. I mention it to avoid
the impression of intractability on my part.
That is the area of punishing those who
"leak" secret government information. Let
me hasten to assure the press and others,
that this is still an area open to change in
the bill. We are still attempting to define
that area where disclosure of government in-
formation may be made permissibly without
undue harm to the nation-indeed, perhaps
with benefit to the nation-and to differenti-
ate that area from the area where disclosure
would be unduly injurious in terms of the
national defense. I am sure all will recog-
nize what a difficult endeavor this is. We have
been receiving much helpful information
from many sources in this regard, and hope
to continue to receive it. Already since May
of this year, a new tentative draft of these
provisions has been under consideration,.
which strikes the balance in a way more
favorable to disclosure than the preceding
draft against which much of the criticism
seems to be directed.
Similarly in the process of being worked
out in the bill, with changes already in the
process .of drafting, is the difficult problem
of when interference with government func-
tions, and conduct or exhortations present-
ing a risk of violence, should and should not
be permitted, having due regard for consid-
erations of free speech and the benefits and
dangers that may flow from the conduct.
On these and dther matters in the bill,
I wish to make it clear that I retain an open
and receptive mind. The arguments brought
out in the hearings over the preceding four
years, and In the extensive work of the Na-
tional Commission on the Reform of the Fed-
eral Criminal Laws, upon which S. 1 builds,
and by others, have been, and will continue
to be, enormously helpful in this regard.
S. 1 has several hundred provisions. Sev-
eral, as I mentioned, are still in flux. Sev-
eral may still need improvement. Most, how-
ever, are unquestionably sound. We should
not lose sight of the- fact that stating the
federal criminal laws all in one place, in a
rational fashion, for the first time, is beyond
doubt something that is long overdue. S. 1
will accomplish that objective, to the im-
measurable benefit of all in the criminal
justice system and the country generally.
PRESS RELEASE, AUGUST 15, 1975, FROM THE
OFFICE OF SENATOR ROMAN L. HRUSKA
Senator Roman L. Hruska (R-Neb) said
today he would propose changes to contro-
versial sections of a Senate criminal law
codification bill, "in order to spell out more
particularly some of the guarantees of free
expression that, while perhaps inherent in
the bill, did not clearly emerge in the text
read by a non-expert."
Hruska, one of the principal sponsors of
the bill, S. 1, which would codify virtually all
federal criminal laws, noted that in Juno he
made a statement in the Senate which indi-
cated the bill is "open to change."
That statement, he said today, "recognized
the need for tempering some of the provi-
sions in the interest of giving greater recog-
nition to the freedom to report governmen-
tal information and to engage in certain
forms of non-violent conduct against actions
of the government, while at the same time
protecting the functioning of government,
safeguarding the valid interests of other in-
dividuals, and affording protection to those
state and military secrets that are vital to
the survival of this nation."
The Nebraska Senator said his remarl=s in
June "were framed with reference to a set
of amendments to S. 1 along these lines,
already drafted and awaiting only detailed
consideration and perfecting.
"With the advent of the August recess,
I have now had the opportunity to consider
them in detail and I intend to urge their
consideration by the Senate Judiciary Com-
mittee."
Hruska said he intended to press for mov-
ing the bill, which contains more than 1,000
other provisions, forward "so that the legal
system will not have to wait too long to
benefit from this desirable codification."
Hruska, as he had in earlier statements,
noted that "it should be remembered that in
addition to the controversial provisions in
this extensive bill, there are hundreds that
are unquestionably advances, for example ex-
panded recognition of civil rights; compensa-
tion of victims of violent crimes; increased
fines for regulatory offenses which are cur-
rently inadequately deterred; prohibition of
`dirty tricks' and other political tactics of
Watergate fame, to name only a few."
Referring to the endorsement "in princi-
ple" of S. 1 by the American Bar Associa-
tion's House of Delegates meeting this week
in Montreal, Hruska said "The ABA reached
some of the same decisions I had when it
withheld its approval of those provisions
which I am seeking to amend."
A summary of the Hruska changes:
Espionage; and Disclosing National De-
fense Information: These provisions are nar-
rowed to require intention to prejudice the
safety of the U.S. or its armed forces. The
amendment also narrows the conduct that
may be called espionage, and excludes the
recipient of the information from criminal
liability as an accomplice, conspirator, etc.,
unless he, too, has the intention to prejudice
U.S. safety. In addition, the definition of
"National Defense Information", which it is
a crime to disclose, its narrowed so as to
cover only critical or vital sensitive informa-
tion.
Tampering with a Government Record:
This provision is redrafted to exclude more
leaks of government information, and in-
clude only cases where the physical absence
or alteration of a document demonstrably
interferes with a government function.
Obstructing a Government Function by
Fraud: This section is narrowed to include
only substantial interference, and to exclude
conduct which involves the release of na-
tional defense or classified information.
Obstructing a Government Function by
Physical Interference: This provision is nar-
rowed to exclude indirect interferences and
insubstantial ones. -
Instigating Overthrow of the Government:
This provision is narrowed so that conduct
which is meant to express a point of view and
presents no serious threat, is not made cri-
minal.
Sabotage: This provision is narrowed to
exclude indirect, insubstantial, or non-
physical obstructions, and obstructions re-
sulting from advocacy alone.
Obstructing Military Recruitment and In-
duction: This provision is modified in ac-
cord with the principles above.
In addition to the above, there are several
more technical corrections the Senator will
propose to S. 1.
He is also considering whether the classi-
fied information provisions should draw a
distinction between classified information
the disclosure of which should have only job-
related consequences, and classified informa-
tion the disclosure of which should bear
criminal sanctions.
NOTE- TO EDITORS AND CORRESPONDENTS
Attached is the precise language of the
amendments to be proposed by Senator
Hruska. They should be viewed against the
May 16, 1975 draft of S. 1.
APPENDIX (AUG. 15, 1975)
NATIONAL SECURITY AND RELATED OFFENSES
Amendments to the May 16, 1975 Draft of
S. 1; proposed by Senator Roman Hruska:
A. ? 1103-INSTIGATING OVERTHROW ETC. OF
GOVERNMENT
Amendment:
1. Define "incites" up front in ? 111 (defini-
tions) or in a new.section to mean "directly
urges, with success". -
2. Subsection (a) (1) of ? 1103: change
"would facilitate" to "calculated to facili-
tate". -
Comment: Senator Hruska's purpose is to
narrow the scope because of considerations
akin to free speech-to get at only dangerous
conduct. In fact, his definition of incite is
inherent in the cases, but we should strive
to make the bill somewhat self-explanatory,
he believes.
B. ? 1111-SABOTAGE
Amendment: Subsection (a) (3) : change
"delays or obstructs" to "physically, directly
and materially delays or obstructs, other than
by mere advocacy".
Comment: Same type of considerations as
A above.
C. ? 1116-OBSTRUCTING MILITARY RbCRUIT-
MENT OR INDUCTION
Amendment: Subsection (a) (3) : definition
of "incites" as discussed under ? 1103 above.
Comment: Same.
D. ? 1121-ESPIONAGE
Amendment: Recast (a) and add new (b)
as follows (move present (b) to become (c)) :
(a) Offense-A person is guilty of an of-
fense if, with the intention to prejudice the
safety of the United States -or its armed
forces, he
(1) Communicates national defense infor-
mation to a foreign power;
(2) obtains or collects such information
knowing of a substantial risk it may be com-
municated to a foreign power; or
(3) enters a restricted area with intent to
obtain or collect such information, knowing
of a substantial risk that it may be com-
municated to a foreign power.
(b) Liability as accomplice, conspirator,
or solicitor-A person to whom information
is communicated or to be communicated in
the circumstances set forth in subsection
(a), other than one acting for a foreign
power, is not subject to prosecution as an
accomplice to an offense. under this section,
and is not subject to prosecution for con-
spiracy to commit or for solicitation to com-
mit ail offense under this section, unless he
acts with the intention required of the prin-
cipal in order to commit the offense.
Definition change relevant to ? 1121: Also,
change definition of "National Defense In-
formation" in section 1128 (f), by adding, at
the end of the definition, as applicable to all
9 categories, the following:
"in such a degree or fashion as to indicate
(without exploration of material that would
itself present such danger) a substantial
danger to the safety of the United States or
the armed forces thereof."
Comment: The changes are designed to
suppress leaks only where sensitive informa-
tion is being leaked, as opposed to informa-
tion respecting cost overruns, abuses, crimes,
or inefficiencies having little impact on na-
tional safety; without, however, getting the
court Into all sorts of secrets in deciding
whether it is sensitive. The changes respond
to criticism that some leaks may be more
beneficial than harmful. The narrowing takes
place by (1) narrowing the definition'of the
protected "national defense information";
(2) striking out "prejudice to the interests"
of the U.S., requiring instead "prejudice to
the safety of the U.S. or armed forces" in
subsection (a); (3) requiring Intention (de-
sire) to so prejudice, rather than mere
knowledge in would so prejudice (knowl-
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edge would sweep into the prohibition,
newspapers and others motivated by public
interest; in disclosing abuses): (4) in (a) (2)
and i31 requiring knowledge of a "substan-
tial risk" it-may be communicated to a for-
eign power, rather than just knowledge that
it "may"; (and (5) exempting the media from
accomplice and conspirator liability unless
the :media has the intent (desire) to prej-
udice U.S. safety as opposed to a motive to
Inform. This exemption is similar to the one
already appearing in 1124 (classified informa-
tion) and should appear here in modified
form. Otherwise a newspaper would be guilty
of aiding and abetting if its source in fact
had the bad intent, regardless of whether
the newspaper knew of that intent, and even
thought the newspaper was motivated by a
motive to inform.
^i.'hs change In the definition of "national
defense information" requires the court to
ascertain if there Is national danger without,
however, the court getting into secret mate-
rial. (This is similar to the court's task in
another field: when the self incrimination
privilege is raised, the court must decide if
there is a danger of incrimination, without
getting into the allegedly privileged mate-
ria: itself. See McCormick, Evidence, under
Self- :Incrimination. )
? '.122-DISCLOSING NATIONAL DEFENSE
INFORMATION
\n endment: Subsection (a) : strike "or
interast". Strike "or to the advantage of a
foreign power" and substitute "or the armed
forcea thereof".
Comment: Analogous to same change above
under 3 1121.
F. 4 1301--OBSTRUCTING A GOVERNMENT FUNC-
TION BY FRAUD
,rrendment: Subsection (a) : change "in-
tentionally obstructs or impairs" to "inten-
tionally and materially obstructs or impairs."
Add new (b) and shove present (b) and (c)
down to form (c) and (d) respectively.
New tb) :
Oar to prosecution. It is a bar to prosecu-
tion wader this section that the defrauding
that Is the subject of the offense consists
solely of the unauthorized obtaining, copy-
ing, or release, of national defense informa-
tiou jr classified information as those terms
are defined in Section 1128, whether or not
in the form of a record, document, or other
data compilation.
Co:nmeat: The new subsection (b) is anal-
ogc