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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 (e) 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 100 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 100 feet of the protected premises who become unduly rowdy so that their actions evince an unlawful intention and that they are subject to arrest if they do not remove themselves beyond 100 feet from the premises. Once beyond the 100 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
than 6 months, or both. In keeping with the sections on murder and kidnaping, provision is made in enforcing the assault prohibitions for the Attorney General to request assistance from any Federal, State, or local agency.
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 surmoun'ed 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).
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.
Mr. HUNGATE. There is another vote going on at this time. We will stand in recess until the conclusion of the vote and then resume.
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.
That completes the testimony of the Department of Justice on those two bills.
Mr. HUNGATE. If you would proceed, we might complete this, as nearly as we can, on the unsworn declaration bills.
Mr. WALDMAN. Would that be the Chairman's desire?
Mr. WALDMAN. Mr. Chairman, I might say, having received testimony from Congressman Danielson, I would be happy just at this point, to ask that the several pages on the unsworn declaration be put into the record.
Mr. HUNGATE. Following Mr. Danielson's testimony?
Mr. LEIGH. I wonder if I might introduce my colleagues who were not previously introduced.
Mr. Louis G. Fields, Jr., Assistant Legal Adviser, Department of State; and Robert A. Fearey, Special Assistant to the Secretary and Coordinator for Combatting Terrorism, Department of State.
Mr. HUNGATE. We are pleased to have you gentlemen.
Mr. Mann. Mr. Leigh, you may have already said it, but have you studied and do you agree with the two amendments suggested by the Department of Justice?
Mr. LEIGH. Yes. We have no objection whatever to those.
counsel, you may submit them.
Could you amplify the difference between the terms "internationally protected persons" and "foreign officials” as used in the bill.
Mr. LEIGH. I think the best way to respond is to say foreign officials is the term we used in the present law which applied to officials who were foreign to the United States. The use of the term internationally protected persons covers diplomats outside their own territory wherever they may be in the world, and so in that way we acquire a jurisdictional basis and we define a crime which we can punish in the United States.
If an American diplomat is attacked abroad, this gives us a basis in the United States for taking action if we find the perpetrator of that crime within the United States.
Perhaps you would like to add to that.
Mr. WALDMAN. The only thing I would add, this would also cover in certain situations the families of foreign officials who are equally, we have learned, tragically susceptible to acts of terrorism and equally available targets and whose assault, maiming, kidnaping, and murder can interfere with the conduct of our relations almost as much as such acts against the foreign official himself.
Mr. SMIETANKA. In the definition of "internationally protected person" "any other representative who is entitled pursuant to international law to special protection” is also included as part of the definition. Who would be the people that international law would recognize are entitled to protection?
Mr. LEIGH. I think attaché personnel, military attaché. As you will remember from my testimony, they had been the victims of violence; so that is an example of the type of person we mean.
Mr. SMIETANKA. Also, the bill provides extraterritorial jurisdiction may be exercised. Under what circumstances could we refuse to exercise it?
Mr. LEIGH. We could refuse to exercise only if we extradited the perpetrator to the country that was willing to prosecute.
Mr. HUNGATE. We will continue with legislatus interruptus. That is a vote on H.R. 1383, and we will recess so the Members can go vote on it. We will return as soon as we can, gentlemen.
Mr. LEIGH. Thank you, Mr. Chairman.
Mr. Waldman, you relate in your statement that the penalty provisions of existing law are used except for first-degree murder, et cetera. What are the changes being made?
Mr. WALDMAN. These changes, at least the change in the murder penalty, merely reflects the incorporation of the case in the U.S. Supreme Court which abolishes capital punishment.
Of course, some States have passed capital statutes, the constitutionality of which is yet to be tested but that is the primary reason for the change.
Mr. HUNGATE. So it is simply wording that comports with intervening case law.
Mr. WALDMAN. It comports with intervening law; correct.
Mr. HUNGATE. I see. An internationally protected person would be whom?
Mr. WALDMAN. As I understand it, an internationally protected person would include people that now fall within the definition of an official and in addition would include members of the family, and I believe by blood and marriage, if I am not mistaken, if they are living with them in this country and would also include, as Mr. Leigh said, military and other attaché and consular personnel.
Mr. HUNGATE. Military and other consular personnel?
I am sure Mr. Leigh could amplify on that. It is anyone who is duly notified to the United States by his government.
Mr. LEIGH. To any foreign government. It would be the usual procedure by which the receiving government gets a request from the sending state saying Mr. X, wife, and so many children, is here as an attaché at the American Embassy. We request that they be accorded diplomatic privileges.
If that request is acceded to, then the names of those individuals are added to the list, usually called a “blue list”. Almost every host state publishes such a list so it is fairly easy to determine who are internationally protected persons. Generally, separate lists are published for administrative technical and consular personnel.
Mr. HUNGATE. Let's take the recent Lebanese tragedy just for an example. What would be different under this law as compared to existing law?
Mr. WALDMAN. In terms of punishing the perpetrators-of course the act is aimed at deterring. In the case of an act already perpetrated it would make it easier, one would assume, to insure justice was done. If we could not get the individual extradited from the country in which the act was committed it would be obligated to insure that some appropriate action were taken against him in the jurisdiction in which he was found.
Mr. HUNGATE. In the instant case would the perpetrators' actions constitute an offense against the law of Lebanon?
Mr. WALDMAN. I would defer to Mr. Leigh.
Mr. LEIGH. Certainly we would assume so. The difficulty is that, under our present law, we would not have jurisdiction to try the foreign assassins of Ambassador Meloy and Counselor Waring, even if they were found in the territory of the United States. We would only be able to punish perpetrators of this type of act if it had been against a foreign official in the United States, since the present law defines a “foreign official” as a "person of foreign nationality," who is in the United States on official business. Family members are also covered under the present law.
The new definition of internationally protected person would include Frank Meloy since he was a U.S. official serving outside of his own country. He becomes, from the point of view of this proposed legislation and from the point of view of the Convention, an internationally protected person. So if it happened that the perpetrators of that event were apprehended in the United States, this statute would provide a jurisdictional basis to try them for the offense of murder. We could not do that under the existing law.
Mr. HUNGATE. Take the economic adviser.
Mr. HUNGATE. Would it have been necessary that he be listed as a protected person previously? You indicated the forum to which we go, when we decide police and military personnel who would be so construed to be internationally protected persons.
Mr. LEIGH. There is no question that he would be protected.
Mr. LEIGH. If he were so designated, and there is no doubt in my mind that he was so designated.
I don't mean, however, to say there might not be disputes. We have them all the time in the State Department, in connection with various