statute's language prohibits a jury from deducing "intent. obstruct the ability of the United States. to. to engage in war or defense activities" from such circumstances. Nothing would prevent prosecution under the general criminal attempt, conspiracy, and solicitation sections of H.R. 6869 for speech encouraging such a demonstration. Since intent to impair military effectiveness could be inferred, for example, from active opposition to the development of costly weapons, editorials against the ABM, news stories exposing cost over-runs and mechanical failure, or simply a citizen's public or private remarks against the situating of nuclear stockpiles in his hometown could provide the basis for sabotage prosecution on the theory that they "damage" the objects of their disapproval. This section should therefore be narrowed to apply only to substantial physical damage. Another problem with Section 1111 is that no special knowledge is required that the property was suitable for use in the national defense and was in the control of the United States. To fall within the Section, a person only has to be aware of but disregard the risk that it is such property. The Senate worsened this aspect of Section 1111 by inserting the words "in fact" to qualify United States control or oustody. Thus, no knowledge would be required that the property is under the control of or being used for the United States. At the very least, therefore, this section should be amended to require designation of such property or facility (for example, specific military hardware) and the culpability level should be raised to "knowing." 2. Impairing Military Effectiveness As currently drafted, Section 1112 would make it a felony level offense to damage certain property with "reckless disregard" of possible national defense consequences. This is overbroad and susceptible to widely different interpretations. Dangerous conduct which 38-028 - 79 - 30 falls into this area is already proscribed elsewhere in th and should either be treated as a misdemeanor under the Destruction of Government Property section (Sec. 1703), or, if truly involving the national security, as Sabotage (Sec. 1111). The Senate narrowed the scope of the section by limiting its application to war, national emergency or major weapons systems in peacetime. It should be deleted entirely, however, because it is unnecessary and susceptible to broad abuse. 3. Espionage Through cross-referencing, Section 1121 would carry forward the language of existing espionage statutes, thereby losing a significant opportunity to reform the archaic and ambiguous privisions of existing law. If Congress is to codify the general espionage laws, it should at least make clear in the legislative history that proof of specific intent to injure the national defense is an essential element of the defense. The indictment of Daniel Ellsberg in 1973 demonstrates the vagueness, overbreadth, and adverse impact on the First Amendment of 18 U.S.C. $793. Prior to the Ellsberg prosecution for disclosing the Pentagon Papers, the general espionage laws had been interpreted by the courts to require proof of an intent to injure the national defense. See Gorin v. United States, 312 U.S. 19 (1941). Ellsberg's indictment was constitutionally deficient in that it failed to reflect this crucial element. This deficiency should be cured in codifying existing law. Unfortunately, the Senate Report resolves the ambiguity in Section 793 in favor of the dangerous interpretation which the government pressed on the Court in the Pentagon Papers prosecution. The report states that: Unlike subsections 793(a) and (b), subsections (a) This broad reading of Section 793 would permit and even encourage the prosecution of government employees who disclose and newspapers which publish classified information. It is an invitation for the government to enforce broad official secrecy through the criminal laws and should be rejected. 4. Obstructing Military Recruitment or Induction Section 1115 prohibits "incit[ing] others" to invade military service in time of war with an intent to "hinder" or "interfere with" recruitment or induction. The Section also prohibits the intentional creation of a physical interference or obstacle" to recruitment. This "incitement" offense is dangerously broad. The term "incites" is defined in Section 111 to mean "to urge other persons to engage imminently in conduct in circumstances under which there is a substantial likelihood of imminently causing such conduct." Since the term "war" is defined to include "hostilities" involving United States forces which take place in the absence of a declared war (the Senate deleted this definition but did not substitute a new one), the circumstances in which an incitement to obstruct induction could be prosecuted are nearly limitless. Counselling draft resistance, or signing a "Call to Resist" based on opposition to an undeclared war, or picketing an induction center could all fall within Section 1115 as it now stands. Safeguards against such wholesale prosecution of speech activities should be adopted by limiting the section to acts of physical interference with induction during times of declared war. 5. Inciting or Aiding Mutiny, Insutordination or Desertion Section 1116 makes it a crime to aid or abet in "incit[ing]" any number of the armed forces to engage in mutiny, insubordination, refusal of duty or desertion. Given the broad definition of "incites" quoted above, and the inclusion of "induces" within the defintion of "abets" (Section 111), this offense is also dangerously broad. Any civilian speech or writing which is critical of United States military activities and is intended or can be expected to be heard or to come to the attention of military personnel would arguably fall within the prohibition. The section would thus have a severe chilling effect on contacts between soldiers and civilians and would cut off unofficial civilian counselling activities on such sensitive subjects as race relations and counscientious objection. At the very least its applicability should be limited to times of declared war. C. Offenses Involving Government Processes 1. Demonstrating to Influence a Judicial Proceeding Section 1328 prohibits pickets, parades, display of signs or other demonstrations on the grounds or within 200 feet of a courthouse. (The Senate bill was amended to limit the distance to 100 feet.) Although the ACLU generally endorses such statutes as necessary to protect due process rights, we believe that the statute should be written so as not to apply to demonstrators who do not disrupt or intimidate the courts, and whose intent is to express opinions of the judicial process which are protected by the First Amendment. drafted, Section 1328 has no such limitation and is a form of strict liability. As The courthouse should not be treated differently from other public buildings generally open to the public. A demonstration should AN ANALYSIS OF THE CONSTITUTIONALITY ACLU Appendix The CIA and the Department of Justice hold the view that the secrecy agreements which CIA employees are required to sign at the beginning of their employment impose a lifelong requirement to submit to CIA for pre-publication review all writings relating generally to intelligence matters and that these agreements are judicially enforceable. For the reasons set forth in this memorandum, the American Civil Liberties Union disagrees. The CIA has employed several versions of this agreement since the Agency's inception in 1947. The current version of the agreement, which was adopted in 1974, is representative of previous agreements and at the same time the most explicit of any of the versions. Its central provision provides: 3. |