Naturally, the importance of safeguarding those areas frequented most often, such as the temporary residence or office, becomes significant.

At present, section 1752 of title 18 of the United States Code provides a misdemeanor offense for the violation of a secured zone established for the President of the United States.

The legislative proposal before this subcommittee would expressly permit the establishment of protective zones for all Secret Service protectees, as enumerated in section 3056 of title 18 and in Public Law 90-331 as amended.

Under those authorities, Mr. Chairman, the U.S. Secret Service is charged with the protection of, among others, the Vice President, the families of the President and Vice President, Presidential and Vice Presidential candidates, visiting heads of state or government, and distinguished foreign visitors when the President directs that such persons be accorded protection.

As I referred to briefly, in the past the Secret Service has utilized its inherent protective authority to establish the secure perimeters for all protectees other than the President in order to provide adequate protection.

In the absence of the amendment that we are seeking through H.R. 4468, the Service would continue to provide that kind of protective perimeter through its inherent authority.

However, these protective measures would be enhanced by enactment of H.R. 4468 since it would clarify the authority for what have been termed zones of protection and would provide a uniform criminal sanction for an individual who intentionally violates an established perimeter.

At present, in the absence of a specific Federal offense and depending upon the geographic locality in which the protective situation exists, a variety of Federal, State, and local statutes may be involved where there has been a physical intrusion into a secured perimeter provided for a protectee other than the President.

We believe this is undesirable in terms of the clarity of the applicability of the criminal law to those individuals who would violate the protective perimeter and in terms of the liability of Secret Service agents and the efficiency of the protective operations.

Consequently, Mr. Chairman, the Treasury Department urges the subcommittee to assist the protective efforts of the Secret Service by reporting favorably on H.R. 4468 as expeditiously as possible. At this time Mr. Bechtle and I would be glad to respond to any questions that you and Mr. Kindness may have.

Mr. DANIELSON. Thank you very much.

I appreciate the brevity as well as the validity of your statements. You hit the points without a lot of unnecessary verbiage, and really that is a lot of help around here.

I do not think that there is going to be any problem with our subcommittee.

Mr. Kindness, do you have any questions at this time? I would yield to you first. If not, I can go ahead-whatever your preference is. You were kind enough to show up, and I appreciate it, so you are first today.

Mr. KINDNESS. Thank you, Mr. Chairman.

I have some questions that are somewhat technical in nature and which may require the subcommittee to do a little study and perhaps interface with counsel on the Subcommittee on Criminal Justice.

In the process of amending this section it seems to me that there may be the necessity for clearing up some of the existing questions or problems in it, having nothing to do with the proposals that are here.

Mr. DANIELSON. If the gentleman would yield-I believe he has done his homework and has read the laws which are peripheral to this particular one. There are a lot of inconsistencies in the three laws referred to.

You go ahead. We are going to have no problem here at all. Go ahead.

Mr. KINDNESs. I would like to be sure that we are not moving in the direction of creating any potential problem or conflict of course in doing this, but I am not certain that I have found a place where "attempts" or "conspiracies" are defined. In the absence of those definitions I think we would have a problem in dealing with that

area.

I am not so sure that the Secret Service is particularly concerned with strengthening the "attempt" or "conspiracy" aspect of this. Are you able to respond to this question with that background: Is in fact the "attempt and conspiracy" reference in subsection (b) extraneous to your present concerns?

I envision the circumstance that it would be very seldom that the Secret Service would be making arrests on the basis of either a conspiracy or attempt in the context of subsection (b). Perhaps you can help illuminate that point.

Mr. McBRIEN. Mr. Kindness, I will certainly attempt to.

I would not think it would be desirable to amend the statute in such a way that attempts or conspiracies are eliminated from its coverage.

It is a conceivable act that someone would attempt to break through a protective perimeter, and it would certainly be arguable that not having actually succeeded in penetrating the perimeter— if there was not an attempt aspect of the statute there would not be a violation involved with respect to the protective perimeter or the zone of protection as it is sometimes referred to.

The general conspiracy statute-section 371 of title 18-defines conspiracies. It is also possible of course that if we were in a situation where there was a protected location a group of hostile demonstrators might plan and discuss how they were going to breach the perimeter and might do it in such a way that it became apparent to people actually in the perimeter. That would be a conspiracy-to do so.

I cannot say that we have ever encountered this situation, but we have no cases that I am aware of where anything of the sort has been done. Indeed, there are other statutes under which we might be able to prosecute in such a circumstance.

However, we have established the authority to have the perimeters and, to enforce the perimeter, the authority to arrest for a misdemeanor offense.

I think that tangential to that needs to be the inclusion of an attempt and a conspiracy, even if it is an unlikely event, within the statute as it now is.

Mr. KINDNESS. I would be very interested, Mr. Chairman, in getting from the Department of Justice such response as they might have with regard to the prosecutorial approach to this question.

"A zone of protection" seems to me to be sufficiently lacking in clear definition to make it extremely difficult to get a conviction of either an attempt or a conspiracy charge because of no knowledge on the part of the person charged as to exactly what the zone of protection is. That concerns me as a technical matter.

Do we have any past history of violations charged on an attempt or conspiracy basis in section 1752?

Mr. McBRIEN. Not that I am aware of, sir.

Mr. KINDNESS. It is a tough one. From a prosecutorial standpoint I am afraid we would have trouble. I just wonder if, in the process of dealing with this section, we ought to improve this or leave it alone.

My question was really not in order to eliminate but rather to improve, or is this not the time to attempt to do that so that from a prosecutorial standpoint it might be more workable?

Mr. McBRIEN. If we have encountered a problem to this date, I would hope that indeed we would be up here asking to improve the statute. Not having encountered a problem of course does not mean we would not.

We have of course protected the President with the statute in the past, and it has sufficed as is without those aspects ever having been dealt with.

Our concern though, and the immediacy of what we think is our need, is that we continue to protect all of the other persons provided for under Secret Service authority, using as what we think is a natural antecedent of protection establishing a protective perimeter. We are doing this, again on our inherent authority: This constitutes part of protection; therefore we may do it.

Since we already have a statute that specifically provides in positive law for that in the case of the President, there is at least a minor inconsistency in having that provision in the case and no provisions in the others. We think that creates some question over the legal authority of agents. It certainly raises questions in the minds of people who are having to make arrests in protective perimeter situations.

It also of course requires us to rely upon State and local laws and the varying degrees of local provisions of personnel to help enforce these things and what their laws are if they are going to make an arrest at a perimeter. We also have greater dependency upon State and local police.

The clarity in the criminal law in this area and clarity in terms of the duties, responsibilities, and authorities of Secret Service agents needs to be clarified. We need that clarity now; it is beneficial; it is probably a means by which we could prevent future litigation in this area.

With all due respect, not having encountered the problem of a conspiracy or an attempt, I at this stage do not feel that there is an overriding need to try to address that problem. Indeed, the Justice

Department-although we did not discuss that issue with them never raised a question on that with us during the consideration of this.

Mr. KINDNESS. My interest and direction of thought is very much the same as yours in terms of seeking to obtain the greatest clarity possible and the most workable tool to utilize in providing the protection that the Secret Service is charged with providing.

Because the circumstances are relatively rare circumstances, we do not have a lot of case law on which to rely and we need to look for analogous circumstances for case law I think. I just have not done it and feel a certain amount of discomfort with section 1752 as it stands, not solely related to the changes that are proposed here, but these changes do raise an aura of questioning about the zone of protection and how a prosecutor is going to handle this

case.

The concept of zone of protection when argued to the jury becomes a little fuzzy, I suspect.

Mr. BECHTLE. Mr. Kindness, when the Service established what is being referred to here as zones we were referring to perimeters. That inner perimeter with that protectee we in the Service know, and I think to the general public out there it is also known but not where a defense or prosecuting attorney could say, "Yes, it was clearly defined."

I think the mere presence of agents out there and uniformed personnel where we do use police lines, et cetera, makes it obvious what that zone really is.

But I know what you are saying: In order to prosecute that case and say there was an established zone, it could be a problem; but we have not had an occasion where we have been challenged in dealing with the President on this zone.

Mr. KINDNESS. I do not even like to think back to the day over at the Washington Hilton last spring, but the application of the concept to that setting gives me a little pause.

The area from which the assailant made his move was an area in which there were news media people. It could very readily be argued that the representatives of the news media were in an area that was not cordoned off, per se.

This could get so fuzzy that when it comes to a prosecution-I would hate to see a prosecution occurring under this section fail for the reason of our not having addressed this question now that we are looking at the section.

I would not press this point further right now; but I am suggesting, Mr. Chairman, that we perhaps have a little more inquiry into it. An inquiry of the Justice Department might be of use here.

Mr. McBRIEN. We at the Treasury Department will certainly provide any assistance we can in further clarifying this issue.

I might point out that, in regard to the reference you made to the assassination attempt, the zone that is sometimes referred to as a "press zone" was what happened to be a public zone behind the perimeter in which the press happened to be located, but it was also freely open to other members of the public; it was outside of the established perimeter.

Mr. KINDNESS. So this section as proposed to be amended would not necessarily have helped if an agent had been aware of the curious conduct on the part of the assailant in advance?

Mr. McBRIEN. The protective authority under section 3056 of title 18 to protect the President himself would of course have been used if the assailant had been detected; that would have been the authority under which he would have been suppressed.

Mr. KINDNESS. So in this section we are really talking about the breach of a physical boundary of some clarity being the basis for prosecution under this section.

Mr. McBRIEN. Yes. If an assailant had crossed through that established perimeter, that in itself without his other action would have been sufficient under this statute to make an arrest or at the very least to exclude him and to clarify that he is excluded and excludable, which is of course the most important side of the issuethat indeed the Secret Service can carry out its protective mission by excluding people from an area that in the circumstances of that particular case the Service has determined is necessary to provide adequate protection for the President, as the statute is presently situated or as we would have it amended for any other protectee such as a visiting foreign head of state.

The zone of protection would vary; the perimeter varies according to those circumstances. That of course lends itself to difficulty in definition, but I think that most protective perimeters for any protectee of the Secret Service are very visible and pretty well delineated to any normal public observer who enters the area, with police, stanchions, and people clearly posted and keeping an area clear.

Mr. KINDNESS. Are you aware of any prosecutions under section 1752 up to this point in time that have involved the defense of first amendment freedom of expression?

Mr. McBRIEN. No, sir, we are not. Section 1752 has never been challenged, that we are aware of.

Mr. KINDNESS. Mr. Chairman, I have taken quite a while. I will yield to you.

Mr. DANIELSON. I am glad that you have, Mr. Kindness. You have covered several very important points.

I have a couple of other points that I want to cover following up on your inquiry.

It is my understanding of this bill that what you are seeking to do is only to extend the list of categories of covered persons under the format of the already existing law-you simply want to expand statutorily the designations of persons to receive the protection. That is the purpose of your law, is it not?

Mr. McBRIEN. That is correct, Mr. Chairman.

Mr. DANIELSON. I do not know this, and I am only speculating because I have not researched it, but section 1752 is a part of title 18 of the Criminal Code, and it is my recollection that the first parts of title 18 do carry definitions of "attempt," "conspiracy," and many other pertinent definitions as they are used in the Code. So I would think that the definition of "attempt" in title 18 is already provided and would be incorporated by reference here since we are in the same Code.