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2. The Lawyers Club of Los Angeles simultaneously is recommending this proposal to the Administrative Law Section of the American Bar Association for sponsorship by the ABA. In this connection the undersigned Chairman has conferred with Marion E. Harrison, Esq. of Washington, D.Č., who is Chairman, and with Ralph Perry and Richard Keatinge, Esq. of Los Angeles who are active members of that ABA Section.
3. It will be noted that the attached proposal expressly provides that unsworn declarations in proper form may be executed anywhere within or without the territorial jurisdiction of the United States (for use under United States law). This is consistent with pre-existing federal policy. The express terms of the applicable federal criminal statutes already provide for extra-territorial application. Similarly, the Internal Revenue Code provisions permitting declarations under penalty of perjury on tax returns apply extra-territorially. This extra-territorial application is broader than the practice under California law which restricts the use of similar declarations to those actually executed within California. It was the great convenience of extra-territorial use of this procedure, and the prospect of avoiding expensive and time consuming technicalities such as obtaining certificatiors, seals, etc. of foreign officials, merely to prove authority to administer an oath, which especially gained support from the members of the Administrative Law Sectic of the ABA.
JORDAN A. DREIFUS, Chairman. Be it enacted, etc.
Sec. 1: Chapter 115 of title 28, U.S. Code, is amended by adding at the end thereof a new section, as follows, and amending the chapter analysis accordingly,
"S 1746. Declarations, etc. under penalty of perjury.
“Whenever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated; in substantially the following form
(a) if executed any place, within or without the United States: I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date).
“(b) If executed within the United States, its territories, possessions, or commonwealths: I de clare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).
Sec. 2: Section 1621 of title 18, U.S. Code, is amended to read as follows: "§ 1621. Perjury generally.
“Whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, 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 material matter which he does not believe to be true; or
“Whoever in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, U.S. Code willfully, subscribes as true any material matter which he does not believe to be true; "Is guilty of perjury, and shall
, except as otherwise expressly provided by law, be fined not more than $2,000 or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States." (new matter in italic)
STATEMENT OF REASONS At the present time affidavits or other written documents requiring verification on the part of the person signing the document must be under oath or affirmation administered in the traditional manner. As a matter of administration, this requires the cooperation and the action of not only the signatory to the document, but of the officer (usually a notary) who administers the oath or affirmation and who then by signature and seal, if necessary, certifies that the oath or affirmation was so administered. The "teeth” to compel truthfulness are the felony penalties for the crime of perjury. The presence of an additional person to the transaction arguably adds some slight solemnity to the occasion but obviously adds nothing to the penalties for deviating from the truth.
The inconvenience and expense of the notarization procedure is the necessity that another person in every instance be available to administer the oath and to sign and seal, etc. This becomes a very substantial inconvenience and expense if the document is executed in one nation for use in another. This usually requires all sorts of additional certifications and procedures to prove the authority of the officer who administered the oath, and the authenticity of his seal, etc.
Modern business and governmental administration has often dispensed with the oath administration procedure in the verification of written documents where verification is necessary and material. No doubt this was because of the sheer inconvenience and superfluity of the oath administration procedure if verification (under appropriate sanction) is otherwise assured. Beginning in the last century, the predecessors of what are now 18 USC $$ 1001 et seq. permitted signatories of documents to bypass the necessity of an oath by making an unsworn document sufficiently and reliably verified for use in governmental administration.
With the advent of mass collection of income taxes from the general population, the formal requirement of an oath on every tax return was bypassed by express statutory provision permitting the taxpayer to declare under penalty of perjury, in lieu of seeking out a notary public (26 USC $$ 6065, 7206(1) and predecessor statutes). Thus, tax returns and other documents with material statements of great importance are universally signed “under penalty of perjury” without the need of a notary public or other officer to administer an oath or affirmation. (One can imagine the problem of seeking out a notary late on each April 14 in order to take an oath to a tax return.)
Since 1957 the State of California has by statute (California Penal Code g 118; California Code of Civil Procedure $ 2015.5) generally authorized the use of a declaration or certificate under penalty of perjury in lieu of the administration of an oath or affirmation on any form of verified written document for use in any action or proceeding of any kind in California state courts and agencies. This eliminated the need for the interposition of a notary public or other officer for administration of an oath or affirmation on such documents and has been a great convenience in state practice in California.
More recently the U.S. patent office and its various administrative tribunals have, by regulation, permitted use of declarations not under oath, but with a recital that the declaration is under penalty of 18 USC § 1001. See 37 CFR $$ 1.68, 3.11a, 3.12a, 3.13a, 3.14a, 3.16a, 3.17a, 3.18a, 3.26a, 3.32a. It is understood that prior to the change in the patent office regulations, it was sometimes a severe hardship upon patent applicants to obtain sworn statements or affidavits from foreign countries due to the elaborate certifications, seals, and other formalities needed in order to establish the formal authority for, and authenticity of administration of an oath. The permitted use of a declaration, subject to the penalty of 18 USC § 1001, eliminated all of that useless formality,
The continued requirement in the federal courts (and other federal departments and agencies) that written documents can be verified only by the administration of an oath or affirmation is an anachronism and an inconvenience which should be dispensed with by permitting parties and witnesses to use an unsworn declaration procedure in lieu thereof.
The legislative proposals accompanying this statement do this in the same manner as the Internal Revenue Code, and the California statutes, by creating the declaration “under penalty or perjury” as an optional method of verification. A new section is to be added to Title 28 authorizing optional use of declarations, certificates, etc., under penalty of perjury in lieu of the administration of an oath or affirmation. This is limited, however, to writings and does not affect the requirement that oral testimony must be under oath and also does not interfere with other special oath taking requirements such as oaths of office, etc. This requires a minor amendment of the perjury section, 18 USC § 1621, in order to extend the sanction of perjury to such declarations, etc., where they are used in lieu of a document under oath.
It can be argued that the proposed new statutes, in requiring that the warning "under penalty of perjury' must actually appear on the document immediately above the signature, in order for the penalty to apply, may bring home to the layman with even greater clarity the danger in deviating from the truth (no such requirement is found in either 18 USC § 1621 or 18 USC § 1001).
STATEMENT OF JAY C. WalDMAN, DEPUTY Assistant ATTORNEY GENERAL, CONCERNING H.R. 11106 AND H.R. 11217, UNSWORN DECLARATIONS BILLS
H.R. 11106 and H.R. 11217 would 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. Under these bills, the penalty of perjury, a fine of not more than $2,000 or imprisonment for not more than five years, or both, would be triggered by unsworn declarations (as permitted under amended section 1746 of title 28) which a declarant willfully subscribes as true regarding any material matter which he does not, in fact, believe to be true. The purpose of this legislation is quite clearly to reduce the expense and to improve the efficiency of federal judicial and administrative proceedings, by removing the necessity for a formal oath or notarization whenever a party or witness submits a writing whose contents he holds forth as genuine or true. It might be thought that the current general statute punishing false statements against the government, 18 U.S.C. 1001, which carries a penalty as severe as that applicable to perjury, nullifies the need for enactment of the proposed legislation. But such is not the case. Although 18 U.S.C. 1001 has in many respects been broadly construed, it has been held not to apply to most declarations made in the course of civil and criminal litigation, see United States v. Erhardt, 381 F.2d 173 (6th Cir. 1967); United States v. D'Amato, 507 F.2d 26 (2d Cir. 1974). H.R. 11106 and H.R. 11217 would add greater flexibility to the government's enforcement efforts aimed at the protection of the integrity of the legal process. We note that, as the sponsors of these bills were undoubtedly aware, the State of California has had a very similar law on its books for nearly twenty years, see California Civil Procedure Code, $ 2015.5, and it is our understanding that that law has functioned successfully to streamline the conduct of administrative and judicial proceedings, while having no unfair impact on the class of offenders bent on mischief through the intentional falsification of a material fact in such proceedings.
The net effect of both H.R. 11106 and H.R. 11217 would be to make the Federal perjury statute, section 1621 of title 18, applicable to a declarant's statement without requiring that the statement be preceded or accompanied by the ritual taking of an oath. We believe that the prescribed notice of the penalty of perjury which the declarant would acknowledge by his signature (following the form language of section 1746 of title 28 proposed by these bills) would satisfactorily place a declarant on notice that his statement will be received as a well-considered and truthful expression of his belief and that the law will deal harshly with anyone who would mislead a federal proceeding. The Department of Justice therefore supports these bills. We point out that, in addition to the general perjury statute (18 U.S.C. 1621) which these bills would amend, there exist a number of other specific or related statutes punishing false statements given under oath, to which the same kind of amendment would seem appropriate if either H.R. 11106 or 11217 is enacted. These statutes are 8 U.S.C. 1357(b), 10 U.S.C. 931, 16 U.S.C. 364, 18 U.S.C. 152, 954, 1546, 1622 and 1623, 46 U.S.C. 170 (13) and 229e, and 76 Stat. 907. We would be pleased to work with the staff of the Subcommittee, if desired, in drafting suitable language to amend these provisions.
Mr. Chairman, that concludes my prepared statement, and I and my associates would be happy to try to answer any questions of the Subcommittee at this time.
Mr. HUNGATE. Mr. Hyde, we are taking up the bill of Mr. Danielson and Mr. Wiggins whereby you could declare under penalty of perjury and thereby in some cases do away with the notary.
Mr. HYDE. He persuaded me of its merits out in the corridor earlier. Mr. HUNGATE. Thank you, sir.
The Subcommittee on Criminal Justice is taking up two different topics. We have just heard from our colleague Mr. Danielson on two bills, H.R. 11106 and 11217, proposing to permit the use of unsworn statements given subject to the penalty of perjury in lieu of an affidavit.
We would now proceed to H.R. 13709, introduced by Chairman Rodino and H.R. 12942 introduced by Congressman Wiggins.
These two bills seek to implement two international conventions: 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, and the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons.
Recent tragic events have made us aware of the need for international cooperation in dealing with terrorism directed at diplomatic agents.
The subcommittee will hear from both the Justice Department and the State Department on this legislation, and we now call upon Mr. Monroe Leigh, legal adviser, U.S. Department of State.
We welcome you, Mr. Leigh. Do you have a prepared statement? Mr. LEIGH. Mr. Chairman, we have submitted a statement.
Mr. HUNGATE. Without objection, it will be made a part of the record at this point.
[The prepared statement of Mr. Monroe Leigh follows:]
STATEMENT OF MONROE LEIGH, LEGAL ADVISER, DEPARTMENT OF STATE I appreciate the opportunity to present the views of the Department of State on H.R. 12942 and H.R. 13709 which are identical bills designed to amend title 18, United States Code. This legislation was submitted by the Departments of State and Justice and it will, if enacted, bring our criminal code into conformity with the requirements of 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 (“The 0.A.S. Convention”) and the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents (“The U.N. Convention”). As the titles suggest, these two Conventions have as their basic object the prevention and punishment of crimes against internationally protected persons. The Senate has given its advice and consent to ratify these Conventions; however, it is our policy to assure that our domestic law will permit us to discharge the obligations of an international Convention prior to the deposit of our instrument of ratification.
With the tragedy of the recent assassinations of Ambassador Francis E. Meloy, Jr. and Economic Counsellor Robert O. Waring in Beirut still fresh in our minds, we must face the grim reality that five U.S. diplomats have been brutally murdered within the last two years. The murders of Ambassador Davies in Cyprus, Consular Agent Egan in Argentina and First Secretary Welch in Greece last year outraged civilized people throughout the world, but still these senseless crimes continue.
Within this same period of time, two U.S. Air Force officers attached to our Embassy in Teheran were anıbushed and shot to death and USIA officer Alfred Laun was seriously wounded in Argentina. Seven U.S. officials qualifying as internationally protected persons were abducted in this period. Terrorists seized our Consular Offices in Kuala Lumpur and held our Consul and 50 others, including the Swedish Chargé, hostage.
Diplomats and diplomatic establishments are particularly vulnerable targets of terrorism and responsible governments must take immediate and firm measures to halt these vicious attacks upon the structure of the diplomatic process.
Obviously, neither the measures contained in this legislation nor the provisions of these Conventions can guarantee against a recurrence of acts of violence directed at diplomatic institutions. They will,
however, constitute significant steps toward deterring such outrageous conduct and demonstrate the firm conviction of the United States that it will not tolerate such acts within its territory or against its representatives abroad.
As the Legal Adviser to the Department of State I am responsible to assure that the essential requirements of these Conventions are met by our implementing legislation. I am satisfied that the legislation being sought will indeed permit the United States to discharge its obligations under these Conventions.
These Conventions carry alternative obligations upon State Parties if a perpetrator of a serious crime against a protected person is within its territory, i.e., either to extradite the perpetrator or to try him under its law. Thus, State Parties are given options in dealing with perpetrators of proscribed crimes under the Conventions.
Both of these Conventions have the effect of amending existing extradition treaties between the State Parties so as to include offenses specified in the Convention as extraditable offenses. Both_also provide that such offenses shall be extraditable offenses between State Parties which do not make extradition conditional on the existence of an extradition treaty.
However, in order to exercise our option of extradition under the Conventions, there would have to be a bilateral extradition treaty between the United States and a State Party to one of these Conventions. We do in fact have bilateral extradition treaties with the parties to the OAS Convention and most of the parties to the UN Convention. We do not, however, have bilateral extradition treaties with the three Soviet Socialist Republics which are parties to the U.N. Convention. We would therefore be prevented from exercising the extradition option to one of these three Soviet Republics, or to any subsequent party to the U.N. Convention with whom we might not have an extradition treaty. We would be obligated, however, under the Convention to undertake to include these crimes as extraditable offenses in any bilateral extradition treaty which we might later conclude with another State Party to either Convention. The U.N. Convention does not require a State Party to exercise extradition authority even where there is a bilateral treaty, nor does it obligate a State Party to conclude an extradition treaty with State Parties with whom it does not presently have such a treaty.
The alternative option required in the U.N. Convention is that State Parties “take such measures as may be necessary to establish its jurisdiction over these crimes in cases where the alleged offender is present in its territory and it does not extradite him. . . .” The 0.A.S. Convention merely required that State Parties "endeavor to have the criminal acts contemplated in this Convention included in their penal laws, if not already included." Since one of the Conventions does require us to define and punish designated offenses, our legislation must accomplish this purpose if we are to fulfill our obligations under the Convention. Section 5 of these bills achieves that objective.
I agree with my Department of Justice colleague that there is clear Constitutional authority for Congress to exercise, in certain circunstances, extraterritorial criminal jurisdiction over the offenses designated under these Conventions. I subscribe to and fully support the basis upon which my colleague establishes Constitutional authority for the proposed legislation. There is no doubt that the Constitutional principle that Congress has authority to “define and punish ... (o)ffenses against the Law of Nations” is applicable.
One of the great tragedies of our time is the failure to punish terrorists who commit serious crimes against diplomats and other protected persons. We all recall the shocking act of the Sudanese Government in releasing the murderers of Ambassador Noel and DCM Moore in Khartoum after these murderers served only a few months of their life sentences. We are likewise disturbed by the fact that a few countries continue to grant asylum to terrorists who have committed crimes proscribed under these Conventions. Nor can we ignore the instances in which these criminals are never apprehended and brought to trial. In a recent symposium conducted at the Department on International Terrorism, it was reported that an alarming proportion of terrorists arrested around the world were released without ever being brought to justice for their crimes. I was appalled by the fact that it was also reported that the average sentence for terrorists who have been brought to trial was eighteen months. This deplorable situation emphasizes the need for enforcement of these Conventions to oblige State Parties to punish the perpetrators of crimes against internationally protected persons.
We have seen that concerted international action has dramatically reduced the incidents of airline highjackings. Three international Conventions and thorough airport screening procedures in most international airports were required to bring about this result. I believe that a similar result can be achieved to halt the trend in terrorism directed against diplomats and diplomatic institutions. It will require the same determination and support which responsible governments around the world gave to the problem of aircraft highjackings. The United States played a leading role in the war against air piracy and we intend to play a similar role in combatting terrorism. If that role is to be credible, we must demonstrate our determination through example. We were instrumental in the passage of both the 0.A.S. and U.N. Conventions and we were the first to sign the U.N. Convention. The Senate has recognized their importance in giving its advice and consent to