I believe with this young Marine that the flag still means so much to so many. I also believe that it is a non sequitur to state that in a nation of 200 million people the cases of flag abuse have been comparatively rare.

Who will deny that it took but one incident, the flag-burning incident on April 15 in Central Park in New York City to rekindle public resentment against this abuse While the incidents have been limited to a few states, the reaction has been national. National organizations such as the Veterans of Foreign Wars & Amer. Legion have called for federal legislation. The Central Park incident had nationwide repercussions simply because a national symbol was held up for ridicule. Some strong supporters of the principle of states' rights have been the very ones to propose the severest Federal penalties.

The legislation that I proposed in the 89th Congress and have again submitted this year states:

"Whoever publicly mutilates, defaces, defiles, defies, tramples upon or casts contempt, either by word or act, upon any flag, standard, colors, or ensign of the United States shall be punished by imprisonment of not more than one year and a fine or not more than $1,000.00."

I realize that the phrases "casts contempt" and "either by word" have been the subject of concern. Perhaps, in the light of the recent ruling by the United States Court of Appeals for the First Circuit in Boston, Massachusetts, regarding a draft-card burning case, and the Attorney General's recent comments on possible violations of the First Amendment by Federal flag legislation, in view of these recent developments the Judiciary Committee will perhaps deem it advisable to alter the wording of the legislation. However, I am primarily concerned with willful acts of flag desecration.

As in the case of the draft-card burning case which may be eventually presented to the Supreme Court, any questions concerning the First Amendment in its relation to flag legislation should be fully explored in the highest court of the land if necessary. Meanwhile Congress can take the first step by providing appropriate legislation. If the U.S. Supreme Court rules such legislation unconstitutional, then a constitutional amendment can be considered. In the past history of this country we have judged it necessary at times to change the Constitution to cope with changing conditions. Who can deny that the practices of draft-card and flag burning are not a new and radical development in recent years. The case which caused me to submit flag legislation last year concerned a play at the off-Broadway theater, the Bridge Theater in New York City in which, according to the press, "the dialog bristled with obsence denunciations of the President, the U.S. and the flag. The flag-burning was the grand climax." As I understand it, some states have laws which carry a comparatively small penalty for abuse of the flag. In such cases the effect of lenient treatment of flag abusers on the morale of other citizens should be considered. In the case of the reactions of the five wounded soldiers mentioned previously, one had this to say "The guys would sit around and we would conclude something like this: Someone would say, 'When I get out, if I see a guy mess up the flag or burn his draft card, I'll punch him.' I think all of us felt the sameway."

Another stated "I'd hate to catch someone burning a draft card or flag in front of me. In Viet Nam, we would talk about getting together back in the States and expressing as a group our resentment for the creeps that demonstrate."

Of course, we can't condone physical action as the proper remedy. But one can easily imagine the latent resentment among the American people if those who desecrate the flag are not dealt with promptly and firmly.

I believe that the flag still means so much to so many. For this reason I believe that a Federal law should be enacted to provide uniformity throughout the land to punish willful desecration of the flag.

Mr. WHITENER. We will now recess until 2 p.m. today, at which time we will hear the Honorable Fred M. Vinson, Jr., Assistant Attorney General, Department of Justice.

(Whereupon, at 11:30 a.m., the subcommittee recessed, to reconvene at 2 p.m., the same day.)

Afternoon Session

The hearing was reconvened at 2 p.m.

Present: Hon. Byron G. Rogers (chairman) presiding, Representatives Jacobs and Poff.

Staff present: Benjamin L. Zelenko, counsel; Donald G. Benn, associate counsel.

Mr. ROGERS of Colorado. The subcommittee will come to order. Our witness is the Honorable Fred M. Vinson, Jr., Assistant Attorney General in charge of the Criminal Division, Department of Justice.

The Attorney General has already filed a statement.

I understand that you have a short statement, Mr. Vinson.

STATEMENT OF ASSISTANT ATTORNEY GENERAL
FRED M. VINSON, JR.

Mr. VINSON. Yes, Mr. Chairman.

It is a pleasure to be with you and the committee here today. As you stated, the Attorney General, by letter of May 8, 1967, in response to a request for the views of the Department, expressed the position of the Department on H.R. 271 and the related bills. That letter, which I understand is part of the record, includes various technical suggestions as well as the general views of the Department. To avoid repetition, I will restrict my remarks to a point which has been raised and then will be happy to answer any questions you may have. The question has been posed regarding the territorial application of H.R. 271, or, more specifically, whether it would have extraterritorial application.

The answer appears to be that it would apply extraterritorially if Congress intended it to do so. The Supreme Court in Blackmer v. United States, 248 U.S. 421 (1932), while speaking of the U.S. authority to exercise jurisdiction over a citizen residing in France, stated:

With respect to such an exercise of authority, there is no question of international law, but solely of the purport of the municipal law which establishes the duties of the citizen in relation to his own government. While the legislation of the Congress, unless the contrary intent appears, is construed to apply only within the territorial jurisdiction of the United States, the question of its application, so far as citizens of the United States in foreign countries are concerned, is one of construction, not of legislative power.

Thus, by clearly indicating in the legislative history that it is the intent that the act should apply to U.S. citizens even when they are outside of the territorial jurisdiction of the United States, this application should obtain.

Mr. ROGERS of Colorado. Mr. Poff.

Mr. PoFF. Thank you, Mr. Chairman.

May I pause, parenthetically, first, to welcome the distinguished. witness to the subcommittee and to express my personal appreciation for his willingness and that of the Attorney General to make his expertise available to us.

As I indicated to a previous witness, some points of the law_are somewhat obscure, and it occurred to me that the Department of Justice would want to be on record in a formal way with respect to those questions.

This is particularly important, I think, and I believe the witness will agree, when and if the courts later are called upon to interpret the purpose and effect and the legislative intent of the legislation.

I understand the statement that you have just now made to mean that it might be wise if the subcommittee intends that the legislation apply to an American citizen who commits an act proscribed by the

legislation on foreign soil, to include specific language expressing that intent in the statute.

Is this correct?

Mr. VINSON. That may be done, Mr. Congressman. However, it is not necessary. If the legislative history makes clear that that was the intent of Congress, there is no problem about it.

Mr. POFF. Out of an abundance of caution, it would not hurt if language to that effect were inserted.

Mr. VINSON. No, sir.

Mr. PoFF. Now, has the Justice Department arrived at a definitive decision with respect to the preemption under the supremacy clause? Mr. VINSON. We feel that it would be wise, in legislation such as this, for Congress to make clear that the Federal legislation does not preempt existing State legislation.

Mr. POFF. This means, then, that the Justice Department feels that jurisdiction should be concurrent?

Mr. VINSON. Yes, sir.

Mr. POFF. Does this means the Justice Department feels that penalties should be concurrent rather than consecutive?

Mr. VINSON. I think those are two different questions, Mr. Congressman. There are other areas of the law where there are similar penal statutes in the States and in the Federal system. Of course, it is a matter of the State legislature to determine their penalties; it is a matter for Congress to determine our penalties, our Federal penal sanctions. We do have a policy of general application against dual prosecution. Probably the best example of that is in gambling cases, where there has been a violation of a local gambling statute and also a violation of the Federal gambling statute.

Mr. POFF. Now, if jurisdiction is to be concurrent, as I understand it the Justice Department feels that there should be a Federal statute on the subject which would have application generally throughout the Nation and specifically in the District of Columbia.

Mr. VINSON. We feel that such a statute should definitely apply uniformly in the District of Columbia and in the entire country.

Mr. POFF. Under some of the bills, as the witness knows, a dual system would be erected, which would make an offense punishable in one way if committed in the District of Columbia and punishable in another way if committed elsewhere in the United States.

When you speak of uniformity, you have reference to that hiatus? Mr. VINSON. Yes, sir.

Mr. POFF. Do you care to suggest what you feel would be an appropriate penalty?

Mr. VINSON. Well, I really haven't examined into that subject deeply. The Department has taken no position on it. I think the bills submitted run all the way from the present penalty in the District of Columbia statute, 30 days and $100, all the way up to 5 years and a substantial fine.

Mr. POFF. Does the witness feel that there is any correlation between the act of mutilating a draft card and the act of desecrating a flag? Mr. VINSON. Well, there is correlation, in that both of them have been said to be under some circumstance symbolic acts. I would personally, and this is my personal view, not the Department's view, because, as I say, the Department really hasn't focused upon the penalty

aspect-I would personally feel that the 5-year penalty is much too harsh.

Mr. PoFF. For what case?

Mr. VINSON. You see, the penalty was not really independently arrived at in the draft card case. They merely amended by inserting one clause in section 462 of title 50 appendix of the United States Code. They inserted this clause, which had the necessary effect of applying the blanket penalty.

Mr. POFF. Of course, the Congress, if it cared to do so, could have fixed a specific penalty lower than that fixed generally in the act. Mr. VINSON. Definitely.

Mr. PoFF. Which could be interpreted that the Congress intended the greater penalty to apply.

Mr. VINSON. Yes, sir.

Mr. POFF. If the Congress makes both acts, that is to say, elimination of a draft card and desecration of the flag, criminal conduct, do you feel the need for any differentiation in the amount of penalty attached to each?

Mr. VINSON. Well, as I say, the Department really hasn't taken a position on what the penalty should be. We pointed out one technical problem in the penal language of some of the bills submitted, but actually, as you know, Mr. Congressman, you are a member of the Commission on the Revision of Federal Criminal Laws, and one of the mandates of that committee is to examine the whole structure of penalties and try to rationalize them.

Mr POFF. But for the sake of consistency and orderly administration of the laws, if for no other reason, would it be objectionable to the Department if the penalty affixed for one was that affixed for the other?

Mr. VINSON. I am not sure that the penalties for the two should be the same, Mr. Congressman. That is a matter for Congress to determine.

Mr. POFF. Now, another reason I asked that the Justice Department make a witness available was that certain testimony was given by the gentleman from New York, Mr. Halpern, which, for the purpose of laying a predicate for my questioning, I would like to read for the record at this point.

On page 161 of the temporary transcript of the record for May 10, 1967, we find the following:

For some strange reason, the police of the city of New York, I understand, and I get this on good authority, were informed not to make an arrest, and evidently, and from what I gather, this was as a result of consultation with certain officials here in Washington, and one of the officers who was on duty spoke to me after it, and be deplored the fact that such instructions were given to the police department of the city of New York, and there was no action taken. At that point I interposed:

Would the gentleman care to be more particular or specific, or to name the names of the people in Washington who gave those instructions?

And in reply, Mr. Halpern said:

No, I cannot be particular because I do not have that information. It is purely hearsay, but the rumor, or the information I received, was that there were consultations between representatives of the State Department and the city of New York.

My question to the witness is: Do you have any knowledge, or to your knowledge does anyone in the Department of Justice have any knowledge, which would support or refute that statements? That statement bears upon the incident which occurred in Central Park in New York on April 15 of this year.

Mr. VINSON. NO, Mr. Congressman. Today is the first I have heard of that. I have absolutely no information to that effect, and I would be very surprised if it were true.

Mr. POFF. I am sure you must welcome the opportunity, do you not, to make that statements?

Mr. VINSON. Indeed I do, Mr. Congressman.

Mr. POFF. If there were a foundation to that rumor, and if some authority, either the Justice Department or the State Department or for that matter any other agency of the Federal Government, had in any manner brought influence to bear upon an officer of the police department of the city of New York, would that have been proper, would it have been grounded in Federal statute, or would it have been grounded in constitutional authority?

Mr. VINSON. Well, that question really could be broken down into several parts, and it is a little broad to answer yes or no. But I can certainly conceive of hypothetical examples where it would be not only appropriate but desirable for Federal and local authorities to consult together.

Mr. POFF. Well, I am asking you specifically: Was it possible, on any legal foundation, for an official to instruct the police department of the city of New York not to prosecute a violation of a New York statute?

Mr. VINSON. Generally, I think you are correct. Again, I can think of hypotheticals within my own operation, for instance, where we do consult closely with local officials with respect to matters of interest to both of us. This is particularly true in the organized crime area, for instance.

Mr. PoFF. Yes. The witness is aware of the law in the State of New York concerning the desecration of the American flag? Mr. VINSON. Yes, I think I recall reading about a prosecution under it last year, I believe, in 1966.

Mr. POFF. And you are familiar with the conduct that was alleged to have occured in Central Park, April 15, 1967. If the police department of the city of New York, or any other law enforcement authority of the State, saw fit to arrest a suspect and make charges against the suspect under the State law, can you imagine any justification for Federal officials instructing the State or local officer or consulting with a State or local officer with respect to that prosecution?

Mr. VINSON. No. And I would add to that that I hardly see how it would happen. As I understand-I haven't actually read or studied the transcript that you referred to, but if I understood the comment correctly it was directed toward a Federal official requesting or instructing the local policeman not to make an arrest.

Mr. POFF. They were informed not to make an arrest. Yes, sir. Mr. ROGERS of Colorado. In order to make it clear: We had testimony, here, on Monday, from Mr. Laurence Tower of the Flag Foundation. The city of New York was having difficulty identifying exactly who the flag burners were. And they were pursuing it to see if prosecution may be instituted.