Statement of: Bray, John, Special Subcommittee on Federal Criminal Code, Page Crane, Mark, on behalf of the Antitrust Section of the American De Shelter, Kenneth, Director of Insurance of the State of Ohio- 5628 5586 5621 5649, 5653, 5656 Gainer, Ronald L., Deputy Chief of Legislation and Special Projects Guttmacher, Dr. Alan F., President, Planned Parenthood Federation 5444 5570 Keuch, Robert L., Deputy Chief of Appellate Section, Criminal 5444 5491 Maris, Hon. Albert B., Senior U.S. Circuit Judge, Philadelphia, Pa.. ment of Justice; accompanied by Ronald L. Gainer, Deputy Chief of Legislation and Special Projects Section, and Robert L. Keuch, Deputy Chief of Appellate Section, Criminal Division.......... McDonald, Donald, Chairman, Section of Taxation, American Bar Association.. 5503 5444 5628 Meador, Prof. Daniel J., School of Law, University of Virginia, 5514 Pilpel, Harriet F., Esq., General Counsel, Planned Parenthood Quiggle, James Q., Section of Taxation, American Bar Association... Statement submitted by: 5579 5503 Cooke, Hon. Lawrence H., remarks before the Joint Committee on Exhibits: 5677 Appellate Review of Sentences and the Development of Sentencing 5529 Creating a New Federal Criminal Code, Roman L. Hruska, American 5674 Criminal Sentences-Law Without Order, Hon. Marvin E. Frankel.. 5649 5435 5442 5677 5514 5504 5429 5445 5608 The Review of Criminal Sentences in England, A Report, to the United States v. Daniels, 446 F. 2d 967 (1971). 5517 5669 5667 SUBCOMMITTEE ON CRIMINAL LAWS AND PROCEDURES Washington, D.C. The subcommittee met, pursuant to recess, at 10:15 a.m., in room 2928. Dirksen Senate Office Building, Senator Roman L. Hruska, presiding. Present: Senators Hruska (presiding), Hart, and Cook. Also present: G. Robert Blakey, chief counsel; Paul C. Summitt, deputy chief counsel; Dennis C. Thelen, assistant counsel; Kenneth A. Lazarus, minority counsel; and Mabel A. Downey, clerk. Senator HRUSKA. The subcommittee will come to order. In the absence of the chairman of the committee, Senator McClellan, who is busy chairing subcommittee hearings on Defense appropriations this morning, this Senator has been asked to preside. Today the Subcommittee on Criminal Laws and Procedures resumes its hearings on S. 1 and S. 1400, two bills to revise, reform, and codify the Federal criminal laws. The focus of our inquiry this morning will be on certain of the provisions concerning offenses involving national security contained in chapter 11 of S. 1400, the Administration's proposed criminal Code Reform Act of 1973, and in chapter 5 of S. 1, the Criminal Justice Codification, Revision, and Reform Act of 1973. More specifically, we will want to concentrate on proposed sections 1121 through 1126 of S. 1400 and sections 2-5B7 and 2-5B8 of S. 1, dealing with espionage and protection against unauthorized disclosure of national defense and classified information. I think it is no exaggeration to say that this is an area of the law of utmost concern to all of us, from both within and without the Government. It is also an area in which difficult questions abound, questions to which there are no easy solutions. The difficulties arise, it seems to me, because we are dealing here with two fundamentally competing interests: protection of our national security on the one hand, and preservation of an informed public opinion on the other. To quote from the thoughtful opinion of Mr. Justice Stewart in the New York Times case: It is elementary that the successful conduct of international diplomacy and the maintenance of an effective national defense require both confidentiality and secrecy. Other nations can hardly deal with this Nation in an atmosphere of mutual trust unless they can be assured that their confidences will be kept. And within our own executive departments, the development of considered and intelligent international policies would be impossible if those charged with their formulation could not communicate with each other freely, frankly, and in confidence. In the area of basic national defense the frequent need for absolute secrecy is, of course, self-evident. (New York Times Co. v. United States, 403 U.S. 713, 728 (1971)). On the other hand, as Justice Stewart pointed out, secrecy is by no means the only consideration. Quoting again from his New York Times opinion: When everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on self-protection or self-promotion. I should suppose, in short, that the hallmark of a truly effective internal security system would be the maximum possible disclosure, recognizing that secrecy can best be preserved only when credibility is truly maintained. (Id. at 729.) Thus, we are faced with the difficult task of balancing the need for an effective internal security system against the desirability of maintaining an informed electorate. The provisions of S. 1400 which we will be discussing this morning represent one considered approach to this problem. In the few weeks since Senator McClellan and I introduced S. 1400, these proposals have already received considerable attention and comment. Much of the comment reflects the understandable concern of those who fear that the Administration's proposals will stifle the public's legitimate right to be kept informed of what its Government is doing. Some have gone so far as to suggest that the bill would drastically alter present law and would, in effect, impose on this Nation a “national secrecy act." To these critics of S. 1400 let me say that I have examined the proposed national security provisions very carefully. To me, they do not appear to represent a radical departure from what I understand to be present law. More important, I believe that these proposals represent a conscientious attempt to arrive at a reasonable solution in the area, a balanced solution which eschews the notion of secrecy for its own sake. Obviously, reasonable minds may differ as to the wisdom of these proposed statutes. Indeed, I am not prepared to endorse them fully without further study and consideration of available alternatives. But before we arrive at any firm judgments, let us be certain that we understand these proposals, how they relate to existing law and how they would operate in practice. To help us find the answers to these questions, we have invited to testify before us today Mr. Henry E. Petersen, Assistant Attorney General, Criminal Division, Department of Justice, who will be represented by Mr. Kevin Maroney, a Deputy Assistant Attorney General under Mr. Petersen. Mr. Maroney has a long background in the internal security area. Mr. Jack Landau, a representative of the Reporters Committee for Freedom of the Press, will also testify this morning. We welcome you gentlemen, and look forward to hearing your Before we proceed to our first witness, I offer for the record a memorandum in response to criticisms concerning certain sections of S. 1400 dealing with national security and classified information offenses, and copies of Executive Orders numbered 11652 and 11714. [Information referred to above follows:] MEMORANDUM-THE ESPIONAGE SECTIONS OF THE PROPOSED FEDERAL CRIMINAL CODE, S.1400. This memorandum is prepared in answer to criticisms that have been made by members of Congress and by representatives of the press concerning certain espionage sections of the proposed Criminal Code Revision contained in S.1400. The memorandum will describe the proposed sections, compare the proposed statutes to the provisions of present law, and will discuss the criticisms which have been made. I. THE RELEVANT PROPOSED ESPIONAGE SECTIONS The espionage provisions of the proposed Code are §§1121-1126, with the latter section being a general definition section applicable to the espionage statutes. Most relevant to this memorandum are Sections 1124 and 1122. A. Section 1124 This proposed section makes it an offense for a person who is or has been in authorized possession of classified information or has obtained such information as a result of status as a Federal public servant to knowingly communicate such information to a person not authorized to receive it, that it is not a defense that the information was improperly classified at the time of its classification or at the time of the offense, and that the recipient of the classified information is not subject to prosecution either as an accomplice or as a conspirator. The section also provides that the communication of the information to a regularly constituted committee of the Congress pursuant to lawful demand is not prohibited. The punishment is seven years imprisonment if the person to whom the information is communicated is an agent of a foreign power and is three years imprisonment in any other case.1 As noted, the statute proscribes a knowing communication of such information. The general culpability section, §302 of the proposed Code, provides that: A person acts knowingly, or with knowledge, with respect to his conduct when he is aware of the nature of his conduct. A person acts knowingly, or with his knowledge, with respect to circumstances surrounding his conduct when he is aware or believes that the circumstances exist, or is aware of a high probability of their existence, or intentionally avoids knowledge as to their existence. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware or believes that his conduct is substantially certain to cause the resut. B. Section 1122 Proposed §1122 relates, not to classified information, but to national defense information. Section 1122 provides that a person is guilty of an offense if he knowingly communicates information "relating to the national defense" to a person not authorized to receive it. The basic difference between the two proposed sections is, of course, that under the latter, §1122, the Government would have the burden of proving that the information in fact related to the national defense while under the former, §1124, it would have the burden of proving that the information was classified. In view of the definition of classified information in proposed §1126, such proof would include the fact that the document or information at issue had been marked or designated pursuant to authority.2 C. General Comments As will be discussed in more detail in the next section of this memorandum, the only departure from present law in these proposed sections is found in 1 Proposed Section 1125 makes it an offense for an agent of a foreign power to obtain classified information he is not authorized to receive. This section has not been criticized. The section could not, then, apply to documents which had been stamped classified be someone without authority to classify or who was not purporting to act in accordance with such authority. |