Senator MCCLELLAN. Thirty years? Mr. FREIMUND. Thirty years. Senator MCCLELLAN. If he kills again after he gets out? Mr. FREIMUND. Another 30 years. Senator MCCLELLAN. Another 30 years. In other words, you can kill as many as you want to-as long as you live-on a 30-year sentence. Do you think that is justice? Mr. FREIMUND. The question is, what is justice? Senator MCCLELLAN. What is it? Mr. FREIMUND. Justice, in some definitions Senator MCCLELLAN. Do you think that someone who is willing to go out and deliberately commit a murder, makes his living that way, do you think justice is 30 years-that that is justice for that kind of crime? Mr. FREIMUND. Yes. Senator MCCLELLAN. You do. I am sorry we disagree. It is a cheap price on a human life. Are there any questions? Thank you very much. The Chair will direct that the staff may receive for the record, for the next 15 days, any comments that anyone wishes to make on S. 1, and I would expect submissions to be reviewed and examined. If there is any question about them, submit them to the chairman. Very well, this series of hearings is concluded. The committee stands adjourned. [Whereupon, at 11:50 a.m., the subcommittee adjourned, subject to the call of the Chair.] AMERICAN CIVIL LIBERTIES UNION, MEMORANDUM TO MEMBERS OF THE SENATE JUDICIARY COMMITTEE RE: S. 1, AS AMENDED Enclosed is the statement of Melvin L. Wulf for the American Civil Liberties Union on S. 1, as amended. Mr. Wulf's work complements that of Mary Ellen Gale who provided the ACLU's views on predecessor legislation. A summary of the document appears prior to the table of contents. CHARLES MORGAN, JR. STATEMENT OF MELVIN L. WULF, LEGAL DIRECTOR, Introduction The ACLU is a nationwide, non-partisan organization of 275,000 members dedicated to the preservation and promotion of individual rights and liberties guaranteed by the Constitution of the United States. One of the ACLU's primary missions is to encourage legislative advancement of civil liberties and to oppose legislative encroachment on them. The ACLU supports revision and reform of the federal criminal laws. The over-all goal of making the federal criminal law more rational and more predictable is a salutary one. Clear, coherent, and uniform laws serve the public by making it plain what conduct is lawful and what is forbidden. They give fair notice to citizens and law enforcement officials alike, thereby restricting the possibilities of arbitrary punishment. However, obtaining clear and coherent laws at the expense of the rights and liberties of our people would be a step backward. In the pages that follow, we express our strong opposition to some specific provisions of S. 1, as amended.1 In particular, we focus on the bill's national security provisions which we believe are especially dangerous to First Amendment freedoms. In some cases, such as parts of the national security section and all of the obscenity sections, we urge that provisions be eliminated altogether. In others, we suggest revisions or express concerns which should guide those who may draft revised sections. Reform of the federal criminal laws is an important undertaking. It must be done with deep concern for the civil rights and liberties of the individual citizens. I. OFFENSES INVOLVING NATIONAL SECURITY A. The "Official Secrets" Act Five sections of S. 1, would reverse 200 years of democratic decision-making under the Constitution by preferring government secrecy to the freedoms guaranteed by the First Amendment. Sections 1121-25 of S. 1 would deliver into the hands of the Executive complete and final control of information "relating to the national defense." The free flow of facts and opinions on which self-government ultimately depends would be dammed at its source. Our true national security, which springs from "uninhibited, robust, and wideopen" debate on public issues and public officials, New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), would be destroyed. When Congress first debated the Espionage Act of 1917, two Senators marked off for future generations the parameters of debate over the protection of national security: "Senator NELSON. [While] there are some expressions perhaps in the bill that may seem a little too drastic, yet I hold that when the safety of the country is at stake the rights of the individual must be subrogated to the great right of maintaining the integrity and welfare of the Nation. Senator CUMMINS. The Senator from Minnesota seems to think this is necessary for the safety of the United States. I do not; nor do I think we have a Nation worth saving if this is necessary. If the power that is here sought to be given to the Executive, coupled with these offenses that are for the first time described in American life are necessary, I doubt whether the Nation could be preserved." 54 Cong. Record 3488 (1971). We submit that Senator Cummins had the best of that exchange and thatso long as we remain a free, outspoken, and democratic society-he will always have the best of it. Our opposition to the information control provisions of S. 1 begins with the spirit which permeates them-Executive distrust of the American people and the American press. Needless to say, it is ironic that legislation of this kind should be proposed so soon after the fall of the Nixon regime. That administration's obsession with secrecy, its distrust of the American people, and its animus towards the press should surely have taught us the lesson of the need for more not less openness in government, and more not less trust of the people and the press. But Sections 1121-1125 of S. 1, as amended, are written as if Watergate and its fallout never happened. A moment's thought must lead to the obvious conclusion that these provisions must be thought objectionable in principle and practice, and we urge the Congress to reject them and thus refuse to elevate official secrecy to the status of law. Secondly, we believe that the over-all thrust of these statutes is profoundly unconstitutional. They strike at the heart of free speech and due process of law. They sweep within their prohibitions the collection, communication, or publication of information relating to the national defense regardless of its origin. They set no standard whereby the conscientious citizen, public official, or news reporter may determine whether the information he possesses, gathers, or shares with others is constitutionally protected-or the subject of criminal sanctions. They use terms so broad and vague as to force men and women of good will to guess at the meaning of the law-and act at their peril. They encourage official abuse by inviting selective prosecution and adjudication on political or personal grounds. Coupled with the capital punishment provisions of S. 1, passed earlier this year, they might even provide a mandatory death penalty for individuals who sought only to inform their fellow citizens on the great public issues of our time. 1 All reference to S. 1 in the succeeding pages are to S. 1 as amended, the version of the bill now before the Senate Judiciary Committee. Throughout this chapter, the commission of a criminal act is made dependent upon its being committed in "time of war," or the punishment is enhanced if the crime is committed in "time of war." Sabotage as a Class A felony can be committed only "in time of war" (§ 1101); one can impair military effectiveness by false statements only "in time of war" (§ 1112); whether or not espionage is committeed "in time of war," determines whether the crime is a Class A or B felony (§ 1121). Whenever an offense turns on whether the United States is at war, S. 1 should require that the war is one declared by Congress under Art. I, Sec. 8 of the Constitution. All of the offenses which require our being at war are not only traditionally thought to be serious indeed, but some of them inevitably implicate questions of freedom of speech. And if the First Amendment is to be so seriously impaired under any of these provisions, those drastic restrictions upon fundamental freedoms should be permitted, if at all, only after a deliberate and explicit declaration of war by Congress, as required by Article I, Sec. 8 of the Constitution. The nation should be insured that imposition of the severe penalties provided in these sections, together with their intrusions into the First Amendment, not be left to the sole determination of the Executive Branch of government. It would be a substantial retrogressive step to provide that any "war," whether or not it is declared by Congress, may trigger prosecutions and affect sentences under various sections of Chapter 11. Judicial and scholarly opinion is deeply divided on the question of the legality of the Vietnam War and similar questions were appropriately raised by the engagement of our troops in the Dominican Republic in 1965. The formulation of "declared war" makes explicit what is required prior to the application of these penal sanctions particularly since many of them curtail fundamental freedoms normally protected by the First Amendment. 1. Section 1121. Espionage. The American Civil Liberties Union recognizes that genuine espionage is a serious offense against the nation, requiring criminal sanctions and punishment. Because it is subject to serious abuse in times of national crisis, it must be closely and carefully defined. See Gorin v. United States, 312 U.S. 19 (1941). Instead, Section 1121 broadly criminalizes the knowing collection or communication of "national defense information," with the "knowledge that it may be used, to the prejudice of the safety or interest of the United States, or to the advantage of a foreign power *** By eliminating specific intent as an element of the crime of espionage, S. 1 invites wholesale abuse of the First Amendment by allowing prosecution and conviction of individuals whose purpose in speaking of so-called "national defense information" is to inform the American people of governmental activities which the public has a right to know, and which they should know, in order to pass judgment on those activities. Without intent to injure, the conduct intended to be prohibited by a valid espionage statute cannot usefully be regulated for the result is to seriously invade rights protected by the First Amendment. In addition, the terms used in Sec. 1121 to define the crime are fraught with confusion. What is "national defense information"? Or, more to the point, under § 1128 (g), what is not "national defense information”? The Supreme Court held in Gorin, supra, 312 U.S. at 31-32, that under a statute listing specific places and things, this was a question for the jury to determine. Sound public policy and constitutional law alike demand a carefully confined legal definition to give advance warning of what conduct is prohibited and to guide jury deliberations. Under the present terminology a newspaper report that bad weather had delayed an Air Force airplane test, that a prominent general was hospitalized for minor surgery, that the North Vietnamese had deployed troops in South Vietnam, or that U.S. troops were using defective rifles, would all be proper subjects for invocation of the espionage provisions. Yet the first two are probably trivial, the last two are not only proper but necessary to informed public debate, and all four are protected by even the narrowest reading of the First Amendment. Granted that Congress cannot envision every prospective violation, criminal statutes which touch on First Amendment freedoms must nonetheless be 'written to forbid only the narrow class of conduct which genuinely endangers the public welfare. NAACP v. Button, 371 U.S. 415, 433, 438 (1963). The late Mr. Justice Harlan, a strict constructionist of the Bill of Rights, put it like this: * "But when a State seeks to subject to criminal sanctions conduct which, except for a demonstrated paramount state interest, would be within the range of freedom of expression as assured by the Fourteenth Amendment, it cannot do so by means of a general and all-inclusive * * * prohibition. It must bring the activity sought to be proscribed within the ambit of a statute or clause 'narrowly drawn to define and punish specific conduct as constituting a clear and present danger to a substantial interest of the State.'. . ." Garner v. Louisiana, 368 U.S. 157, 202 (1961) (concurring opinion) (citation omitted). There are similar problems with the other statutory phrases. One reason why information about the general's gallstones or the Army's misfiring M-16's (no secret, of course, to the enemy) might be brought within the statute's sanctions lies in the provision that the only required proof is "knowledge" that the information "may be used * *to the advantage of a foreign power." But any information with some relationship, no matter how tangential, to the national defense, may be to the advantage of some foreign "government, faction, party or military force, or persons purporting to act as such," or "any, international organization" (the definition of "foreign power" as given in Section 111 of S. 1). The International Red Cross may be interested to learn of our medical technology-and may use it to help the wounded enemy. A German political party may use statistics about disaffected or drug-abusing soldiers to back up a demand for removal of U.S. troops from German soil. These are among the "dangers" of free speech. The Constitution never guaranteed that free speech would protect us from the ridicule or hostility of foreign nations, or from the use of our ideas beyond our shores. Its authors claimed only that if we were willing to run these risks, we would not be free-and the opinion of others would no longer matter. Morever, there seems little reason for starting the proposed standard of harm in the disjunctive: injury to the United States or advantage to a foreign power. "[I]f a communication does not work an injury to the United States, it would seem to follow logically that no government interest can be asserted to overcome the first amendment's guarantee of freedom of speech." Nimmer, "National Security Secrets v. Free Speech: The Issues Left Undecided in the Ellsberg Case," 26 Stan. L. Rev. 311, 330 and n. 92 (1974). See United States v. Heine, 151 F.2d 813 (2d Cir. 1945), cert. denied, 328 U.S. 833 (1946), where Judge Learned Hand refused to apply a similar clause of a precursor statute to information which had never been classified. 1 There is no greater certainty in the requirement of knowledge that the information gathered or disseminated may be used "to the prejudice of the safety or interest of the United States." Are we more or less "safe" if the public knows or does not know of our defense needs? Is it in the "interest" of the United States to suppress the facts about our conduct of the war in Southeast Asia or to spread them on the public record for debate? The meaning of the First Amendment is that the government shall not have the power to limit public knowledge, save in narrow circumstances where national survival is in clear and present danger. See, e.g., Whitney v. California, 274 U.S. 357, 376-77 (1927) (Brandeis, J., concurring); cf. Brandenburg v. Ohio, 395 U.S. 44 (1969). As a former Secretary of State observed in 1822: "No nation ever yet found any inconvenience from too close an inspection into the conduct of its officers; but many have been brought to ruin and reduced to slavery, by suffering gradual imposition and abuses, which were imperceptible, only because the means of pubilicity had not been secured." 1 E. Livingston, Criminal Jurisprudence 15 (1873 ed.), quoted in Nimmer, supra, 26 Stan. L. Rev. at 333. 2. Section 1122. Disclosing national defense information Section 1122 makes criminal the knowing communication of "national defense information" to a person "he knows is not authorized to receive it.” Section 1126 defines "authorized" as meaning authority to have access to, receive, possess, or control "as a result of the provisions of a statute or executive order, or a regulation or rule thereunder ***"The statute thus delivers to Congress and the Administration the exclusive power to determine who shall, and who shall not, learn, speak, or write about a vast array of politically as well as militarily sensitive information. To state this proposition is to refute it. The Constitution permits no such law. Moreover, by failing to require a specific intent to do an unlawful act, the statute "may be a trap for innocent acts," Papachristou v. City of Jacksonville, 405 U.S. 156, 164 (1972). It is so "lacking in ascertainable standards of guilt, that *** it fail[s] to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden." Palmer v. City of Euclid, 402 U.S. 544, 545 (1971). No standard of conduct whatsoever is specified. Government officials are given a free hand to enforce their own ideas of what the law should be, and enforcement will depend on who is, or is not, annoyed by the disclosure. But criminal statutes this vague are plainly unconstitutional. Coates v. City of Cincinnati, 402 U.S. 611 (1971). In addition, § 1122 is overbroad in a constitutionally fatal sense, for it sweeps within its prohibition conduct which is not only innocent, but sanctioned by the First Amendment. Sce, e.g., Keyishian v. Board of Regents, 385 U.S. 589 (1967); Baggett v. Bullitt, 377 U.S. 360 (1964). An overbroad statute may be invalid even though it generally protects vital national interests which can on appropriate occasions outweigh First Amendment rights. United States v. Robel, 389 U.S. 258 (1967). Cf. Gorin v. United States, supra, 312 U.S. at 28, narrowing an espionage statute to apply only when scienter is established. 3. Section 1123. Mishandling national defense information. Section 1123 has similar deficiences of vagueness and overbreadth. Had this provision been law at the time of the revelation of the Pentagon Papers, every person through whose hands they passed could have been charged with this offense. Even members of Congress and their staffs might have been prosecuted. Sce Gravel v. United States, 408 U.S. 606 (1972). Reporters, editors, publishers, secretaries, and probably even printers could have been swept within the statute's reach. Indeed, the government attempted to use the similar, although perhaps not quite so voluminous, provisions of 18 U.S.C. § 793 (e) in prosecuting Daniel Ellsberg and Anthony Russo. This provision also poses a unique constitutional difficulty, by making it a felony for one in unauthorized possession or control of "national defense information" knowingly to fail "to deliver it promptly to a federal public servant who is entitled to receive it." The Fifth Amendment forbids the enforcement of statutes which infringe the privilege against self-incrimination. The Supreme Court has repeatedly struck down efforts to short-circuit the investigative process (and the Constitution) by criminalizing the failure to register oneself as a probable criminal. E.g., Haynes v. United States, 390 U.S. 85 (1968) (failure to register a firearm); Albertson v. S.A.C.B., 382 U.S. 70 (1965) (failure to register as a Communist Party member); Leary v. United States, 395 U.S. 6 (1969) (failure to comply with the Marijuana Tax Act). Cf. Leary, supra, 395 U.S. at 28, holding that the Fifth Amendment establishes a "right not to be criminally liable for one's previous failure to obey a statute which required an incriminatory act." 4. Section 1124. Disclosing classified information. Section 1124 would make it a crime for a "person" to communicate classified information to "unauthorized" persons, regardless of his intent and regardless of the probable or even possible effect of his actions. Mere disclosure, with no shadow of purpose or capacity to damage the genuine national defense interests of the nation, would be a felony punishable by a $100,000 fine and seven years in prison. Yet it has been estimated by a security consultant with more than 45 years of military and civilian experience in the field of national deefnse information, that over 992 per cent of classified documents contain information in the public domain or do not warrant protection for other reasons. Subcomm. on Criminal Laws and Procedures of the Senate Comm. on the Judiciary, 92nd Cong., 2nd Sess., Hearings on Reform of the Federal Criminal Laws, Pt. III, Subpart D, at 3045 (Comm. Print 1972) (Testimony of William G. Florence). It may be suggested that the problems Mr. Florence spoke of have been overcome by the new Executive Order No. 11,652 of March 8, 1972, ostensibly reforming the classification process. But Mr. Florence testified before a Subcommittee last year that he had tried-and failed-to obtain from the Department of Defense earlier in 1974 some of the classified documents which were |