This is in response to your request for the views of the Department of Defense on the Committee Print prepared by your Subcommittee as a working draft of a bill to revise and recodify the Federal Criminal Code. These comments represent the views of the Department of Defense and are not necessarily those of the Administration.

The working draft of a bill contains a number of provisions that are adverse to Defense Department interests. It is also unsatisfactory from our point of view because it omits altogether several existing provisions of law that are important for the military generally and for its intelligence agencies in particular. This letter summarizes these objectionable features with particular emphasis on items of importance to us that are not addressed by the bill. References are to the sections of the proposed recodification of title 18.

I. Matters Not Addressed by the draft bill

1. Section 1385 of title 18, the so-called Posse Comitatus Act, has been omitted from the bill. This omission could have serious repercussions for the armed forces because, if the Federal Criminal Code is reenacted without retention of that provision, there would no longer be a statutory bar to use of the Army and Air Force to execute the laws. In that eventuality elements of the military could be diverted with impunity and used for routine law enforcement purposes to the detriment of armed forces interests and in contravention of existing public policy of long-standing. There is already some sentiment for use of the military in a routine law enforcement role and without retention of the statutory bar pressures to this end could be expected to grow.

2. The House draft does not reenact the Assimilative Crimes Statute, now codified at 18 U.S.C. $13. (Section 111 on page 5 of the draft which prescribes federal jurisdiction is apparently the pertinent part of the bill where this item might be expected to be found.) Under the existing provision of law a wide variety of relatively minor offenses not specifically designated as federal offenses are assimilated into federal substantive law by adoption of relevant provisons of state criminal law. In this way numerous misdemeanors occurring on military bases that would not otherwise be cognizable can be prosecuted under the Assimilative Crimes Statute. To omit that measure in the recodification would create a hiatus in law enforcement capability on military reservations, particularly with respect to traffic offenses and other minor criminal ordinances that will not be included in the new title 18.

3. Existing section 1382 of title 18, sometimes referred to as the Federal Trespass Statute, prohibits reentry on a military installation after involuntary removal and an order not to return. If this provision of law is not renewed, there will be no way to deal with trespassers on military An appropriate new section to be designated as 1332 could be added at the end of subchapter IV on page 29 to read as follows:

reservations.

"$1332. Entering or Remaining on Defense Property. Whoever enters or remains on a military, naval, or Coast Guard reservation, facility or installation of any sort, knowing or in reckless disregard that the entry or failure to leave is in violation of any law, lawful regulation, or order of the officer or person in command or charge of the reservation, facility or installation, commits a class E felony."

This proposed section reinserts into the Code the essential components of the present 18 U.S.c. $1382 (1976), which gives commanders of military installations the authority to bar unruly persons or law violators from entering military facilities and remove them when they have done so unlawfully. Some military installations in their entirety and parts of other installations are by necessity not open to the public. Without this new section military commanders will have no lawful authority to safeguard these restricted areas. The section as suggested above does not penalize the person who inadvertently enters a sensitive defense area.

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4. Section 1918 (3) of title 18 provides a criminal penalty for those who participate in or assert the right to strike against the Government. This existing provision of law is needed to buttress fidelity of military service. Though not the only instrument to combat possible strikes by military members, the statute should be preserved as a useful contributor to that end. It might also be needed to deal with certain categories of civilian employees whose services to the Government are essential.

5. Sections 701, 702, 703 and 704 of title 18 set forth offenses involving improper use of military uniforms and insignia. Even though there are few actual prosecutions under these statutes, the prohibitions should be perpetuated.

6. In addition to the omission of existing statutes still needed by the military, the draft bill does not include measures that have been advocated for some time for initial enactment into law. Thus the draft does not contain a provision authorizing the use of military personnel to investigate suspected offenses committed overseas by U.S. civilian employees of the military departments and dependents accompanying the armed forces. Nor does the draft include a provisison authorizing apprehension of these classes of persons, when they are accused of criminal offenses, for return to the United States for trial in the federal courts.

7. Similarly the draft does not provide authority to confine a U.S. service member overseas who is to be tried in a foreign court when foreign authorities agree to pretrial confinement in U.S. military confinement facilities.

II. Adverse Provisions of the draft bill

1. The language of sections 111, 112, and 113 (pp. 57) could be construed as to preempt military jurisidiction under the Uniform Code of Military Justice. Pursuant to Article 134, UCMJ, a service member may be tried for offenses delineated under title 18. It is suggested that a section similar to section 205 of S. 1437, which was introduced in the 95th Congress, be included in the revision of title 18 to insure that the existence of federal jurisdiction over an offense does not preclude court-martial jurisdiction. See also sections 1311 and 1312 (c) which could also be construed as preempting military jurisdiction.

Section 702 (p. 12) titled

2. "Immaturity" might be construed to bar trial by court-martial of servicemen who are under the age of 18. In this connection, 17-year olds can be and are recruited for military service. Therefore, it is recommended that subsection 702 (b) be amended by adding at the end the following provision:

"(4) The bar specified in subsection (a) of this section shall not apply to a member of the armed forces."

3. Section 707 (pp. 14-15) would not appear to toll the statute of limitations for a person outside the general jurisdiction of the United States for reasons collateral to, and innocent of, an intent to avoid prosecution. Other reasons for tolling the statute of limitations, such as absence from the territory in which the United States has authority to apprehend an individual, should be added.

4. Section 725 (p. 17), entitled "Reliance upon official misstatement," which is bracketed for possible deletion, establishes an affirmative defense to a prosecution based on a reasonable reliance on a statement of law contained in enacted legislation, court decisions, administrative orders or official interpretations by entities charged with responsibility for the law on which a prosecution is based. This provision should be retained in its entirety as a number of the substantive provisions of the code appear inconsistent with existing laws that will not be repealed by this revision. Examples of these inconsistencies include sections 2121, Eavesdropping, and 2124, Intercepting Correspondence, as contrasted with the recently enacted Foreign Intelligence Surveillance Act, 50 U.S.C. $1801-1811.

5. Section 1317 (p. 24) establishes as a felony the inciting of members of the armed forces to mutiny, insubordination, refusal of duty, or desertion. This provision should be amended to include (at line 34) inciting unauthorized absence from military duty. This addition is needed because the offense of unauthorized absence is very serious for the Services and is much more prevalent than the strictly interpreted offense of desertion. The desired amendment can be accomplished by deleting the word "or" wherever it appears before "desertion" and inserting in place thereof a comma and by adding after the word "desertion" the words "or unauthorized absence."

6. Section 1318 (p. 25) would establish a new felony of hindering military law enforcement by harboring or aiding a deserter. To avoid a possible interpretation of this provision that would limit its applicability to technical desertion as distinguished from the more easily established offense of unauthorized absence, line 11 should be amended by inserting the words "or is absent from military duty without authorization" after "deserted" and by inserting the words "or unauthorized absence from military duty" after "desertion".

7. Section 1322 (p. 26) deals with the unauthorized disclosure of classified information. In subsection (a) the words "not authorized to receive it" should be inserted (in line 21) after the word "person". Although the import of this addition may be inferred as a matter of common sense, an amendment to make the intended result clear would be appropriate. It is obvious that federal public servants frequently communicate classified national defense information to authorized persons in the normal course of conducting the Government's business. A literal application of subsection 1322(a) in its present form would make such routine communications criminal offenses.

8. Subsections 1322 (b) (2), 1323 (b) and 1827 (3) provide for a defense to a prosecution for unauthorized disclosure of classified information based on prior publication or disclosure of the information regardless of whether such publication or disclosure was officially authorized. These provisions should be modified to require that the defense be based on a prior official or authorized publication or disclosure. There are a number of instances in which information is publicly disclosed in an unauthorized manner but remains classified due to the sensitivity of the information and the requirement to avoid any official verification that information in the public domain is correct. The proposed defense would greatly hamper efforts to prevent unauthorized disclosure. Additionally, such a provision would lead inexorably to an ever-widening body of unauthorized disclosures, with each public disclosure leading to another more detailed disclosure, all of which would go unpunished due to the public nature of the prior unauthorized disclosures. With the greatly expanded dissemination of very sensitive intelligence information under the approved procedures of Executive Order 12036, the Foreign Intelligence Surveillance Act of 1978, and related matters, the establishment of permanent Intelligence Committees in the Congress, and the establishment of increased Executive Branch oversight and