PROVIDING AUTHORITY FOR PROTECTING HEADS OF FOREIGN STATES THURSDAY, MARCH 12, 1964 HOUSE OF REPRESENTATIVES, The subcommittee met at 10 a.m., pursuant to call, in room 346, Cannon Building, Hon. Edwin E. Willis (chairman of the subcommittee) presiding. Present: Representatives Willis, Tuck, Libonati, Kastenmeier, Lindsay, and Martin. Also present: Herbert Fuchs, counsel. Mr. WILLIS. The subcommittee will please come to order. Subcommittee No. 3 is meeting to hear witnesses on H.R. 7651, a bill to provide authority to protect heads of foreign states and other officials. (H.R. 7651 is as follows:) [H.R. 7651, 88th Cong., 1st sess.] A BILL To provide authority to protect heads of foreign states and other officials Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 112 of title 18, United States Code, is amended to read as follows: "§112. Assaulting certain foreign diplomatic and other official personnel "Whoever assaults, strikes, wounds, imprisons, or offers violence to the person of a head of a foreign state or foreign government, foreign minister, ambassador, or other public minister, in violation of the law of nations, shall be fined not more than $5,000, or imprisoned not more than three years, or both. "Whoever, in the commission of any such act, uses a deadly or dangerous weapon, shall be fined not more than $10,000, or imprisoned not more than ten years, or both." SEC. 2. The analysis in chapter 7 is amended by deleting "112. Assaulting public minister" and inserting in lieu thereof "112. Assaulting certain foreign diplomatic and other official personnel". SEC. 3. Section 1114 of title 18, United States Code, is amended by inserting immediately before “while engaged in the performance of his official duties,” the following: "security officers of the Department of State and the Foreign Service,". SEC. 4. The Act of June 28, 1955 (69 Stat. 188), is amended by adding a new section at the end thereof, to read as follows: "Security officers of the Department of State and the Foreign Service engaged in the performance of the duties prescribed in section 1 of this Act are empowered to arrest without warrant and deliver into custody any person violating section 111 or 112 of title 18, United States Code, in their presence or if they have reasonable grounds to believe that the person to be arrested has committed or is committing such a violation." 1 Mr. WILLIS. This measure was introduced by Judiciary Committee Chairman Celler as the result of a request from the Secretary of State. Sections 1 and 2 would amend 18 U.S.C. 112 which makes it a Federal offense to assault "an Ambassador or other public minister, in violation of the law of nations" by adding "heads of foreign states or foreign governments and foreign ministers" to the protected class. Section 3 of the bill would amend 18 U.S.C. 1114, which makes it a Federal offense to kill certain specified Federal officials while engaged in the performance of their official duties, by adding "security officers of the Department of State and the Foreign Service" to the protected class. (Under 18 U.S.C. 111, assault on this class is also a Federal offense.) Section 4 of the bill would amend the act of June 28, 1955 (69 Stat. 188), which provides that security officers of the Department of State and the Foreign Service may carry firearms to protect heads of foreign states, high officials of foreign governments and other distinguished visitors to the United States, the Secretary of State, and the Under Secretary of State, and official representatives of foreign governments and of the United States attending international conferences, or performing special missions. Amendment would authorize these security officers to arrest without a warrant and deliver into custody any person violating 18 U.S.C. 111 or 112 in their presence, or if they have reasonable grounds to believe that the person to be arrested has committed or is committing such offense. The Secretary of State, in a letter to the Speaker, declared that State Department security officers lack the necessary authority and Federal protection to perform their functions adequately, and that they are at present not legally empowered to intervene to prevent an assault against a foreign visitor until after the commission of the act. In the 87th Congress the subcommittee heard testimony on a similar but broader bill. The first witness this morning is the Honorable Richard D. Kearney, Deputy Legal Adviser, Department of State. We are glad to have you, Mr. Kearney. STATEMENT OF RICHARD D. KEARNEY, DEPUTY LEGAL ADVISER, DEPARTMENT OF STATE, ACCOMPANIED BY G. MARVIN GENTILE, DEPUTY ASSISTANT SECRETARY FOR SECURITY Mr. KEARNEY. I have with me the newly appointed Deputy Assistant Secretary for Security in the Department, Mr. Gentile. And he is accompanied by two of his experts in this protection field in case you have any questions. Mr. WILLIS. Will both of you give your names and your capacities. Mr. KEARNEY. Richard D. Kearney, Deputy Legal Adviser of the Department of State. Mr. GENTILE. G. Marvin Gentile, Deputy Assistant Secretary for Security. Mr. KEARNEY. I have a statement, Mr. Chairman, which I would like to present to you if that is satisfactory. Mr. WILLIS. Yes. Proceed. Mr. KEARNEY. The purpose of H.R. 7651 is to provide the Department of State with sufficient authority to discharge its responsibilities in safeguarding distinguished foreign officials who visit the United States under the auspices of the Government of the United States. The bill has three provisions. In the first place, it amends title 18, United States Code, section 112. In its present form, section 112 makes it a felony to assault, strike, wound, imprison, or offer violence to the person of an ambassador or other public minister. This is a very old statute. It was enacted in 1791 and retains the form and terminology of a century and three-quarters past. While the statute has remained unchanged, the situation which it was intended to meet has undergone very substantial changes. In 1791 the conduct of foreign relations was carried out almost exclusively through embassies and legations. Heads of state, heads of governments, and foreign ministers did not themselves go on missions to further the international relationhips of their countries. When, for one reason or another, a matter was not handled through an established embassy or legation, special envoys were sent. Exceptions to this practice occurred only in connection with extraordinary conferences such as the Congress of Vienna. The carrying on of foreign relations through ambassadors and ministers remained the almost exclusive method of operation all through the 19th century. It was only during and after the Second World War that the practice of "personal diplomacy," that is, the carrying out of foreign relations by meetings between the heads of state, heads of government, and foreign ministers, began to assume a prominent place in diplomatic practice. In the relatively short space of time since World War II, however, this practice of personal diplomacy has grown enormously. In the case of the United States, the number of special visitors is substantially increased by the fact that we are the leading world power. As a result of these factors, in fiscal year 1955, 25 heads of state and government visited the United States. There were 21 in 1956, 14 in 1957, 18 in 1958, 21 in 1959, 29 in 1960, 41 in 1961, and 37 in 1962. In fiscal year 1963 there were 48 heads of state and government who came to the United States, but this figure is higher than normal as a result of the attendance at the funeral of President Kennedy. Moreover, in addition, approximately 25 foreign ministers visit Washington for consultation during the course of each year. Visits of foreign heads of state or government, or foreign ministers, are undertaken only with the advance agreement of the U.S. Government. The U.S. Government, in authorizing the visit or extending an invitation, assumes an obligation under international law and practice of affording special protection to these highest dignitaries of foreign states who are traveling or visiting in its territory. Obviously, any assault upon, or violent action against, a visiting head of state, a head of government, or a foreign minister, could not but have a serious effect upon our relations with that state. In view of these numerous visits of the highest dignitaries of foreign states to our shores, it is certainly appropriate to bring the 1791 statute up to date, in order to take account of this great change in circumstances. Consequently, the first provision of H.R. 7651 makes a very limited amendment to 18 U.S.C. 112 by adding a small but very important group comprising visiting heads of foreign states, heads of foreign governments, and foreign ministers. Mr. WILLIS. At this point, I would like to ask a couple of questions, if you don't mind. Sections 1 and 2 of this bill would amend title 18, United States Code, section 112. That law as it stands today makes it a Federal offense to assault "an ambassador or other public minister in violation of the law of Nations." What does the phrase "in violation of the law of Nations" mean? How do you go about proving it? I wonder whether that language should be changed, or at least have its meaning made clear to us. How do you prove the "law of Nations"? Suppose someone did assault an ambassador, which is a heinous offense, and he is prosecuted. Why shouldn't he be prosecuted under common law? Wouldn't that be easier? And why should you have to have a special statute which requires you to prove the "law of Nations"? Mr. TUCK. Another thing along that line, which concerns me, is that it is my understanding that ambassadors are exempt from arrest in this country, and yet the Federal Government would come in and arrest anyone involved in an altercation with one of these foreigners who might come in our States and insult our people, resulting in someone making an attack on him. Then a citizen involved in such an altercation could be sent to a Federal penitentiary, and not be tried by our own State courts. Mr. WILLIS. Of course, we are talking about the law as it stands today. This bill would add heads of state, of foreign governments, and foreign ministers. But the law as it stands since 1791 is that it is a Federal criminal offense to assault "an ambassador or other public minister in violation of the law of Nations." And I would like to know what that law means before going into what is proposed to be added to it. Mr. LIBONATI. Wouldn't this descriptive proposal place jurisdiction in the International Court to try it? Mr. KEARNEY. No, sir. Mr. WILLIS. This law has been on the books, the Federal criminal statute, since 1791. And this would mean that the prosecution would be, under the statute, before the U.S. courts. That is the law of today. We didn't enact it. But I would like to know what it means. Mr. KEARNEY. Under international law, Mr. Chairman, the diplomatic representative of a foreign government is entitled to protection, from the government to which he is accredited, against any assaults or interference with him of the character described in this statute. In other words, this statute is setting forth, in effect, what is the "law of Nations" on the subject. Mr. WILLIS. And makes it a Federal offense, susceptable to prosecution before the Federal Courts? Mr. KEARNEY. That is correct, sir. Mr. WILLIS. Now, how do you go about proving that law before a Federal court-the "law of Nations"-alleged to have been violated? Mr. KEARNEY. This perhaps is a question which the Department of Justice representative is better qualified to answer than I am. Mr. WILLIS. To be frank about it, I have asked that question of Justice, and they say you know about it. Mr. KEARNEY. I will give you my opinion. All I am saying is that I am not the trial court. The Supreme Court has held on numerous occasions in a great number of cases that the "law of Nations"-the international law-is part of the law of the United States. I don't think there would be any question of having to prove what international law is. I think it is a matter of which the Court would take judicial cognizance, as it would take judicial cognizance of the common law. Mr. WILLIS. And you say it is part of the "law of Nations"? Mr. KEARNEY. Yes, sir. Mr. WILLIS. Since a nation to which an ambassador is assigned has the obligation of protecting his person, therefore an assault on the person of an ambassador violates the "law of Nations"? Mr. KEARNEY. That is correct, sir. Mr. WILLIS. Is that from textbooks, or writers on jurisprudence, or what? Mr. KEARNEY. That is from textbooks; it is from international-law writers. It is now a part of the convention on diplomatic practice which was adopted at Vienna 3 years ago, and which is currently pending before the Senate. I can, I believe, give you a statement from one of our own writers on this matter. In the publication International Law, Chiefly as Interpreted and Applied by the United States, by Charles Cheney Hyde, which is a leading international law work in the United States, Professor Hyde states: Respect for the state which he represents demands that a minister shall at all times enjoy the right to fulfill his diplomatic function without hindrance or molestation. To that end it is essential that his person be afforded complete protection. This principle for which deference has been expressed in varying forms is solidly entrenched in the law of Nations. It serves to impose a heavy burden upon every state that is receptive of a diplomatic corps. Mr. LIBONATI. But it follows this: they add in the section 2 "while engaged in the performance of his official duties," and then it states lower down in section 4 Security officers of the Department of State and the Foreign Service engaged in the performance of the duties prescribed in section 1 of this Act are empowered to arrest without warrant and deliver into custody any person violating To whom? Mr. WILLIS. I realize that. We will come back to that. Thus far we have talked about sections 1 and 2 of the bill. I would like to clarify that, and we will then pass on to the other sections. As I understand it-if I am wrong, correct me--the amendment proposed by sections 1 and 2 of the bill does no more than to add to the categories of people whose persons are to be protected, the "heads of foreign states or foreign governments and foreign ministers"; is that correct? Mr. KEARNEY. That is correct, Mr. Chairman. Mr. LIBONATI. Why not talk about the implementation subsequent thereto in the bill? Mr. WILLIS. I think we should let the witness read his whole statement, because we can't examine him before he has expressed himself on it. Proceed, sir. Mr. KEARNEY. Thank you, sir. We are not urging this amendment on a theoretical basis just in order to bring the statute in line with modern-day conditions. In |