C. ASSAULT AND HARASSMENT

Pursuant to the conventions, section 5 of the bills amends section 112 of title 18, United States Code, to include internationally protected persons within the reach of the assault provision of that section and provides for the appropriate extraterritorial jurisdiction.

The bill as introduced would make no other significant change to 18 U.S.C. 112. However, when he introduced H.R. 12942, Congressman Wiggins expressed some reservations concerning subsection 112(c), which the bill would carry forward. After reflection and consultation with the Congressman's staff, the Department of Justice has concluded that the subsection could and should be redrafted so as to obviate a potential first amendment concern.

Current subsection 112(c) enacted in 1972, provides:

"(c) Whoever within the United States but outside the District of Columbia and within one hundred feet of any building or premises belonging to or used or occupied by a foreign government or by a foreign official for diplomatic or consular purposes, or as a mission to an international organization, or as a residence of a foreign official, or belonging to or used or occupied by an international organization for official business or residential purposes, publicly

(1) parades, pickets, displays any flag, banner, sign, placard, or device, or utters any word, phrase, sound, or noise, for the purpose of intimidating, coercing, threatening, or harassing any foreign official or obstructing him in the performance of his duties, or

(2) congregates with two or more other persons with the intent to perform any of the aforesaid acts or to violate subsection (a) or (b) of this section, shall be fined not more than $500, or imprisoned not more than six months or both."

The proposed redraft takes the form of striking present subsection (c) and adding new paragraphs to subsection (b). The first paragraph denounces, as does present subsection (b), intimidating, coercing, threatening, harassing, or obstructing foreign officials.

The new second paragraph covers attempts to intimidate, coerce, threaten, harass, or obstruct. This replaces the present limited list of certain activities which are unlawful under section 112(c)(1) if done for the purpose of intimidating, coercing, etc. The difficulty with the present statute is that it appears susceptible to the interpretation that it reaches mere expression when coupled with a prohibited form of intent. For example, a banner reflecting a protected first amendment message might, if held for the purpose of harassing a foreign official, be deemed within the ambit of the statute, although it must be noted that subsection (c) would bar any construction or application of subsection (c) that would "abridge the exercise" of first amendment rights. Notwithstanding this prophylactic provision in the law, the problem is to draft a substantive prohibition that clearly does not infringe upon protected speech but yields maximum protection to foreign officials. We believe that by the proposed device of prohibiting attempts the statute would move substantially beyond pure intent plus protected speech into the area of prohibiting intent plus overtly objectionable conduct outside the protection of the first amendment.

At the same time, the attempt prohibition would suitably broaden the law to cover, for example, discharge of a stink bomb at an embassy entrance. Such activity cannot be a violation under present section 112(c) since stink bombs are not listed therein. Further, we believe that when conduct constitutes an attempted intimidation, coercion, threat, harassment, or obstruction, it should be punishable not only if it occurs within 100 feet of a protected premises but wherever the action occurs. Thus the attempt provision we propose is broader in certain respects than subsection 112(c) (1), yet narrower in its elimination of a possible interpretation in conflict with the first amendment.

Only in the new proposed third paragraph of section 112(b) is prohibited activity dependent upon distance from the premises of foreign officials. This paragraph prohibits congregating with two or more persons within one hundred feet of a protected premises with intent to violate any other provision of the section. As with conspiracy, the numbers in a "congregation" enhance the risk of harm and, given the requisite unlawful intent, intervention by the government is warranted even though action has not progressed to the attempt stage. In practice, we envision a police warning to persons within one hundred feet of the protected premises who become unduly rowdy that their actions evince an unlawful intention and that they are subject to arrest if they do not remove themselves beyond a

hundred feet from the premises. Once beyond the hundred feet, such persons may gather and act as they please, at least until their conduct rises to the level of an attempt prohibited by the section.

The revised section 112(b) would read as follows:

(b) Whoever willfully

(1) intimidates, coerces, threatens, or harasses a foreign official or an official guest or obstructs a foreign official in the performance of his duties;

(2) attempts to intimidate, coerce, threaten, or harass a foreign official or an official guest or obstruct a foreign official in the performance of his duties;

or

(3) within the United States but outside the District of Columbia and within one hundred feet of any building or premises in whole or in part owned, used, or occupied for official business, or for diplomatic, consular, or residential purposes by

(A) a foreign government, including such use as a mission to an international organization; (B) an international organization; (C) a foreign official; or (D) an official guest,

congregates with two or more other persons with intent to violate any other provision of this section,

shall be fined not more than $500 or imprisoned not more than six months, or both.

In keeping with the sections on murder and kidnapping, provision is made in enforcing the assault prohibitions for the Attorney General to request assistance from any Federal, State, or local agency.

D. PROTECTION OF PROPERTY

Section 7 of the bills adds a new subsection to section 970 of title 18, United States Code.

Paragraph (1) is intended to reach those instances in which an offender thrusts an object or himself into the premises occupied by foreign officials or official guests and, for whatever reason, no damage to property occurs. Since the introduction of the bill, the Department has become aware of objections raised against paragraph (1) because of possible overbreadth. We suggest that these difficulties might be surmounted by the simple addition of words describing mental intent, such as "intentionally" or "intentionally and unlawfully," at the beginning of the paragraph. Thus an offender would have to intend his intrusion and do it without legal justification or excuse before offending the provisions of the paragraph.

Paragraph (2) prohibits the refusal to vacate premises occupied by a foreign official or official guest if a lawful demand is made upon the intruder. Experience in administering the protection of foreign officials legislation has revealed that often the aim of intruders in premises occupied by foreign officials is simply to annoy by remaining on the premises. Occasionally they have made that aim particularly manifest by chaining themselves to immovable objects. This paragraph gives Federal authorities a directly applicable statute which can be used to charge such offensive conduct.

An apparent typographical error in proposed subsection (b) needs to be rectified by drafting the penalty provision so that it applies to both paragraphs (1) and (2).

E. THREATS AND EXTORTION

Section 8 of the bills prohibits threats to kill, kidnap, or assault foreign officials, official guests, or internationally protected persons. The section also prohibits extortion related to such threats. Provision is made for the requisite extraterritorial jurisdiction if the threat is directed against an internationally protected person.

F. MISCELLANEOUS

Section 10 of the bills expressly provides (1) that the act is not intended to preempt State law and (2) that local officials have the right and obligation to arrest for Federal as well as local crimes.

Occasionally we have discovered that local police officials, upon whom we must rely in most instances for control of demonstrations, have found enforcement of their own disorderly conduct or trespass statutes hampered by technicalities such as requirement for a signed complaint from the victims-a requirement difficult at times to explain to a distraught foreign official. These same law enforcement officials have sometimes doubted their power to arrest for Federal

violations also being committed in their presence. This section eliminates the difficulty and allows the implementation of the ordinary preference for local rather than Federal prosecution of such matters within the competence of both authorities. Section 11 of the bills amends the general definition of "foreign government" in section 11 of title 18, United States Code, so that the more specific definition in sections 112, 878, 970, 1116, and 1201 applies.

TESTIMONY OF JAY C. WALDMAN, DEPUTY ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, U.S. DEPARTMENT OF JUSTICE

Mr. WALDMAN. Thank you, Mr. Chairman.

Mr. Chairman and members of the subcommittee, I am pleased to appear today to testify concerning the views of the Department of Justice on H.R. 12942, H.R. 13709, H.R. 11106, and H.R. 11217.

H.R. 12942 and H.R. 13709 are identical bills prepared by the Departments of State and Justice to amend title 18, United States Code, to implement the Organization of American States Convention to Prevent and Punish the Acts of Terrorism that are of International Significance, and the United Nations Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons Including Diplomatic Agents. The Senate gave its advice and consent to the former convention on June 12, 1972, and the latter on October 28, 1975.

The need for the conventions and legislation will be highlighted by the representative here from the Department of State. For our purposes the need can be expressed best by quoting from the letter from President Ford to the Senate transmitting a copy of the United Nations convention:

"The effective conduct of international relations depends in large part on the ability of diplomatic agents to travel and live freely and securely while representing the interests of their respective countries.” Mr. HUNGATE. Pardon me. We have a quorum call. We will proceed until the second bell and then we will recess until about 10:35. Please proceed.

Mr. WALDMAN. "We have witnessed in recent years an unprecedented increase in acts of violence directed against diplomatic agents and other internationally protected persons. This development has demonstrated the urgent need to take affirmative action to minimize the threats which can be directed against diplomatic agents. Although the legal obligation to protect these persons was never questioned, the mechanism for international cooperation to insure the perpetrators of serious attacks against them are brought to justice, no matter where they may flee, was lacking."

The recent brutal assassination of Ambassador Francis E. Meloy, Jr., in Lebanon-as well as those other assassinations to which my colleague has referred-well demonstrates that the dangers addressed by the President are all too real and present.

Signatories of both conventions are required either to extradite or to prosecute offenders against internationally protected persons whether or not the crimes occur within the territorial jurisdiction of a state party. To provide legislation giving Federal courts the appropriate jurisdiction, the Departments of State and Justice have drafted these bills. Several other minor changes in existing provisions for protection of foreign officials reflect lessons learned from the administration of the relatively new Federal law on that subject.

Each convention provides for the punishment of murder and kidnaping of, as well as assault upon, internationally protected persons. Additionally the United Nations Convention condemns attacks upon the premises or means of transportation of such persons, and condemns threats and attempts as well. The Organization of American States Convention also condemns extortion in connection with murder, kidnaping, and assault.

Section 2 of H.R. 12942 and H.R. 13709 revises section 1116 of title 18, United States Code, to conform with the two conventions. Killing and attempted killing of foreign officials, official guests, and internationally protected persons is prohibited. Penalty provisions in existing law are utilized except that the penalty for first degree murder is now imprisonment for life and the penalty for attempted murder is imprisonment for not more than 20 years.

The definitions largely parallel those presently found in section 1116 of title 18. The exception is the addition of the term "internationally protected person" and its appropriate use throughout the remaining definitions. The term is needed only to define that class of persons in whose favor the extraterritorial provisions of the statute operate.

Subsection (c) of section 1116 provides that if the murder or attempted murder were directed against an internationally protected person, the United States may exercise jurisdiction if the offender is present within the United States regardless of the place where the offense was committed. This provision is, of course, the crux of the bills.

The assertion of extraterritorial jurisdiction is in proper discharge of the duly adopted international obligations of the United States pursuant to the treaty power and is further supportable under the Constitution as an exercise of the power "[t]o define and punish offenses against the law of nations." There is nothing in the bills which would, in the alternative, prevent the orderly extradition of offenders when there is a legal basis for extradition. The Department believes that extradition will continue to be the normal procedure when the only nexus for jurisdiction is presence within the United States.

Subsection (d) of section 1116 permits the Attorney General to request assistance from any Federal, State, or local agency including the Army, Navy, and Air Force in enforcing the provisions against murdering a foreign official, official guest, or internationally protected person. The subsection is a response to the recognition that the forces and equipment of the Federal Bureau of Investigation may not be immediately sufficient in an emergent situation such as the terrorist takeover of an embassy. The potential consequences of an attack in the United States upon a foreign official, official guest, or internationally protected person are sufficiently grave to warrant inclusion of this provision which parallels similar provisions relating to attacks upon Members of Congress, the President, and Vice President.

Mr. HUNGATE. The committee will stand in recess until 10:30. [Recess.]

Mr. HUNGATE. The subcommittee will be in order, and you may resume your statement. The House is in session from 10 o'clock on, and quite busy, so we might as well go ahead. Please proceed.

Mr. WALDMAN. Thank you, Mr. Chairman.

Section 4 of the bills includes the class of internationally protected persons within the kidnaping provisions of section 1201 of title 18 and provides the convention-required extension of jurisdiction over extraterritorial kidnapings and attempted kidnapings.

A new subsection is proposed to make attempted kidnaping a crime. This addition to the criminal code is deemed necessary for two reasons. First, the United Nations Convention requires that attempted kidnapings of internationally protected persons be made criminal. Second, the Department believes that attempted kidnapings of any person should be made criminal.

As with murder, provision is made for the Attorney General to request assistance from any Federal, State, or local agency in enforcing the prohibitions against kidnaping of internationally protected persons. Pursuant to the conventions, section 5 of the bills amends section 112 of title 18, United States Code, to include internationally protected persons within the reach of the assault provision of that section and provides for the appropriate extraterritorial jurisdiction.

The bill as introduced would make no other significant change to 18 U.S.C. 112. However, when he introduced H.R. 12942, Congressman Wiggins expressed some reservations concerning subsection 112(c), which the bill would carry forward. After reflection and consultation with the Congressman's staff, the Department of Justice has concluded that the subsection could and should be redrafted so as to obviate a potential first amendment concern.

Current subsection 112(c), enacted in 1972, provides:

"(c) Whoever within the United States but outside the District of Columbia and within 100 ft. of any building or premises belonging to or used or occupied by a foreign government or by a foreign official for diplomatic or consular purposes, or as a mission to an international organization, or as a residence of a foreign official, or belonging to or used or occupied by an international organization for official business or residential purposes, publicly

(1) parades, pickets, displays any flag, banner, sign, placard, or device, or utters any word, phrase, sound, or noise, for the purpose of intimidating, coercing, threatening, or harassing any foreign official or obstructing him in the performance of his duties, or

(2) congregates with two or more other persons with the intent to perform any of the aforesaid acts or to violate subsection (a) or (b) of this section,

shall be fined not more than $500, or imprisoned not more than 6 months or both."

The proposed redraft takes the form of striking present subsection (c) and adding new paragraphs to subsection (b). The first paragraph denounces, as does present subsection (b), intimidating, coercing, threatening, harassing, or obstructing foreign officials.

The new second paragraph covers attempts to intimidate, coerce, threaten, harass, or obstruct. This replaces the present limited list of certain activities which are unlawful under section 112(c) (1) if done for the purpose of intimidating, coercing, et cetera. The difficulty with the present statute is that it appears susceptible to the interpretation that it reaches mere expression when coupled with a prohibited form