DANGERS OF S.I AND H.R. 3907, PROPOSED REVISIONS IN THE FEDERAL CRIMINAL CODE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP77M00144R000800020029-4
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 8
• Document Creation Date: December 9, 2016
• Document Release Date: August 31, 2001
• Sequence Number: 29
• Publication Date: January 23, 1976
• Content Type: OPEN

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