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DISSENTING VIEWS OF HON. ELIZABETH HOLTZMAN, HON. DON EDWARDS OF CALIFORNIA, HON. JOHN CONYERS, AND HON. THOMAS N. KINDNESS

We regretfully dissent from the Committee's approval of H.R. 15552. This bill is primarily designed to implement U.S. treaty obligations with respect to two international conventions on terrorism;? to the extent it does so, we support it. The bill, however, goes beyond what is necessary to carry out these treaties and includes provisions that seriously infringe on constitutional freedoms. We believe that the bill should have been recommitted so its vague, unconstitutional provisions could have been redrafted.2

One of the most serious problems with the bill is that it punishes peaceable assembly. Section 5 makes it a crime for a person “to congregate with two or more persons with an intent to violate” the provisions of the bill. All that is punishable is intent, not action.

Thus, under this bill, three people who peaceably stand in a silent vigil outside the U.N. or a foreign embassy to protest events in South Africa, the Soviet Union, Arab countries or elsewhere, can be arrested.

Moreover, the “congregating” provision is hopelessly ambiguous. It is not clear how many of the three people must intend to violate the act. Further, how is a person to know what is in the mind of the person next to him?

The “congregating” provision is not required by the international conventions. It is unconstitutional and senseless and should be stricken.

A second problem is that the bill punishes innocent conduct. Section 5 makes it a crime to "obstruct a foreign official in the performance of his duties.” In addition, “foreign official” is broadly defined to include families and employees of diplomats.

Take the case of an American policeman who attempts to arrest a diplomat's chauffeur for drunken driving or the supermarket manager who detains an ambassador's cook in the supermarket for suspected shoplifting. The policeman and the store manager intend to detain the foreign chauffeur or cook and, for the time being, to stop him or her from carrying on official duties, but they are not acting for the purpose of harassment, intimidation, coercion or the like. Nonetheless, the literal terms of the bill do not preclude such a result.

Careful drafting could have avoided this absurd result. “Obstruction" that results from lawful or constitutional action should not be penalized. "Obstruction" that is the result of efforts to threaten or ħarm ought to be punished.

1 The Convention to Prevent and Punish the Acts of Terrorism Taking the form of Crimes Against Persons and Related Extortion that are of International significance was agreed to by the Organization of American States on February 2, 1971. The Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons was adopted by the United Nations Assembly and signed by the United States in December 1973. 2 Since these conventions have been signed

for three and five years respectively, an additional day or two to perfect the vague language should do no great harm.

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Furthermore, the bill by penalizing “harassment” of foreign officials, without defining the term, subjects Americans to arrest for such constitutionally protected acts as heckling or booing a foreign representative who makes a public speech. Since harassment is such a vague term, whether a person is arrested may depend on the boiling point of particular foreign officials.

The Committee's rationale for these provisions is that they are better than the present language of the present law (18 U.S.C. 112). Granted, the present provisions of Section 112 of Title 18 are terrible. Nonetheless, the Committee should have redrafted this bill to “improve” Section 112 in a way that does not abridge constitutional freedoms.

The Committee's rationale—trying to improve the present lawbreaks down, however, with respect to Section 7 of the bill. In amending Section 970 of Title 18 of the U.S. Code, the bill makes present law worse.

The current statute makes it a crime to injure, damage or destroy real or personal property belonging to a foreign government. Its scope and objective are unoffensive. But, under the guise of wanting to protect foreign officials from smoke bombs or persons who chain themselves to trees in front of the embassies, the present bill has broadened the definition of criminal activity to cover innocent or constitutionally protected actions that in no way interfere with the personal liberty, safety or official business of foreign emissaries.

Thus, Section 7 of the bill punishes anyone who "forcibly thrusts any part of himself or any object" onto premises owned by foreign governments with an intent to harass. Premises used by foreign governments for official business, including businesses like airlines or tourist offices, are covered. Thus, someone who walks into the offices of Aeroflot (the U.S.S.R.'s airline) or the South African Tourist Office, says nothing, and walks right out, could be committing a crime if he or she has the intention to harass.

We strongly deplore recent episodes of international terrorism and support international efforts to deal with these problems. The conventions involved here require the United States only to enact legislation to protect foreign officials and guests from murder, violent attack, assault, kidnaping or threats. These conventions do not require the wholesale infringement of constitutionally protected activities found in this bill. It is disingenuous to use the excuse of implementing treaties to enact statutes that punish peaceable assembly and such vague acts as "harassment”, “forcible thrusts” and “obstruction”. We hope that the bill can be amended to solve these problems.

ELIZABETH HOLTZMAN.
JOHN CONYERS.
THOMAS N. KINDNESS.
DON EDWARDS.

94TH CONGRESS

1ST SESSION

H. R. 11106

IN THE HOUSE OF REPRESENTATIVES

DECEMBER 11, 1975 Mr. Danielson introduced the following bill; which was referred to the Com

mittee on the Judiciary

A BILL To amend titles 18 and 28 of the United States Code to provide

for the use of unsworn declarations under penalty of perjury

in Federal proceedings, in lieu of affidavits under oath. 1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 3 That (a) chapter 115 of title 28, United States Code, is 4 amended by adding at the end thereof the following new

5 section:

6 " 1746. Declarations, and so forth, under penalty of

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"Whenever, under any law of the United States or

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under any rule, regulation, order, or requirement made 10 pursuant to law, any matter is required or permitted to be

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1 supported, evidenced, established, or proved by the sworn

2 declaration, verification, certificate, statement, oath, or

3 affidavit, in writing of the person making the same (other 4 than a deposition, or an oath of office, or an oath required

5 to be taken before a specified official other than a notary 6 public), such matter may, with like force and effect, be

7 supported, evidenced, established, or proved by the un

8 sworn declaration, certificate, verification, or statement, in

9 writing of such person which is subscribed by him, as true 10 under penalty of perjury, and dated, in substantially the 11 following form:

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“(1) If executed any place, within or without the

13 United States: ‘I declare (or certify, verify, or state) under

14 penalty of perjury under the laws of the United States of

15 America that the foregoing is true and correct. Executed on

16 (date).

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(Signature).', “(2) If executed within the United States, its terri

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tories, possessions, or commonwealths: 'I declare (or certify, 20 verify, or state) under penalty of perjury that the foregoing 21

is true and correct. Executed on (date).

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(Signature).'”. 23

(1) The table of sections for chapter 115 of title 28, 24

United States Code, is amended by adding at the end the 25 following new item:

“1746. Declarations, and so forth, under penalty of perjury.".

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SEC. 2. Section 1621 of title 18, United States Code,

1

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“(1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law

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of the United States authorizes an oath to be adminis

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tered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any

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material matter which he does not believe to be true;

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“(2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, willfully subscribes as true

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any material matter which he does not believe to be

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19 is guilty of perjury and shall, except as otherwise provided 20 by law, be fined not more than $2,000 or imprisoned not 21

more than five years, or both. This section is applicable 22 whether the statement or subscription is made within or 23 without the United States.".

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