mination of a national emergency and that the terms of the Sabotage Act were not unconstitutionally vague. However, the Circuit Court of Appeals rejected the U.S. Government position that the phrase "Communist aggression" as it appeared in Presidential Proclamation 2914 applied to the Vietnam situation existing in 1969. The Court remanded the case with a direction to dismiss the indictment. Portions of the opinion appear below:

The indictment charges that with intent to interfere with, and obstruct, defense activities of the United States the defendantappellant Bishop willfully injured and destroyed four high voltage line towers of the Public Service Company of Colorado by use of dynamite. The towers were part of a 230,000 volt grid furnishing electricity to the Denver Metropolitan Area. In the area, and served by the Public Service Company, were contractors, including Coors Porcelain Company, Martin-Marietta Corporation, and Dow Chemical Company, which furnished military equipment to the United States and two military installations of the United States, Lowry Air Force Base and the Rocky Mountain Arsenal. The indictment charged that the towers and the lines supported thereby were war utilities as defined in 18 U.S.C. 2151.

The purpose of the bombings was to create domestic turmoil which would require the government to bring back troops from Vietnam. . . .

The indictment charges violations of 18 U.S.C. 2153 (a) which proscribes specified conduct "when the United States is at war, or in times of national emergency as declared by the President or by the Congress. . . ." Count I of the indictment charges a violation of § 2153 (a) on "January 20, 1969, on which date there was in force and effect, at all times a state of national emergency proclaimed by the President of the United States." Defendant was convicted on this count and also on Counts II and III which, in language similar to Count I, charged offenses on January 25 and 28, 1969. The indictments do not charge that the United States was then at war. The crucial question relates to the viability in 1969 of a Presidential proclamation declaring a national emergency.

On December 16, 1950, President Truman issued Presidential Proclamation No. 2914. See 15 Fed. Reg. 9029. The proclamation recites that the need for the action taken arises from international situations, specifically events in Korea and Communist aggression. It proclaims "the existence of a national emergency" which requires the strengthening of national defenses "to the end that we may be able to repel any and all threats against our national security and to fulfill our responsibilities in the efforts being made through the United Nations and otherwise to bring about lasting peace." The proclamation summons the support of the people. There has been no Presidential termination of the proclamation.

555 F.2d 772-773.

... The question... is whether that proclamation, when applied to § 2153(a), gives fair notice to the defendant.

The sufficiency of the notice is susceptible to judicial determination and effects the consequences of the action. . . . The judicially recognized test is whether a person of ordinary intelligence is given fair notice that contemplated conduct is forbidden. United States v. Harriss, 347 U.S. 612, 617, 74 S. Ct. 808, 98 L. Ed. 989. . . . The justification for the 1950 proclamation was the Korean conflict and Communist aggression. Korean hostilities ended in the Panmunjon Armistice of July 27, 1953. The 1969 viability of the proclamation depends on "Communist aggression." The reliance of the government on the Vietnam situation existing in 1969 is not impressive. We know of no national emergency which was proclaimed because of the Vietnam crisis. The indictment does not charge that the United States was at war in 1969.

The term "Communist aggression" is vague.... The power of the Soviet Union in world affairs does not justify placing the United States in a constant state of national emergency.

Fair notice must be based on something more than visionary theorizing on world conditions. The applicability of the 18-year old proclamation to a 1969 offense may not be predicated on an individual's appraisal of then existing world conditions. Reasonable men of ordinary intelligence may well differ on whether the unexplicit phrase "Communist aggression" as used in the 1950 proclamation had continuing pertinence in 1969.

The 1950 proclamation did not give the defendant fair notice that his conduct was proscribed by § 2153 (a). . . .

The text of 18 U.S.C. 2153 (a) appears below:

(a) Whoever, when the United States is at war, or in times of national emergency as declared by the President or by the Congress, with intent to injure, interfere with, or obstruct the United States or any associate nation in preparing for or carrying on the war or defense activities, or, with reason to believe that his act may injure, interfere with, or obstruct the United States or any associate nation in preparing for or carrying on the war or defense activities, willfully injures, destroys, contaminates or infects, or attempts to so injure, destroy, contaminate or infect any war material, war premises, or war utilities, shall be fined not more than $10,000 or imprisoned not more than thirty years, or both.

The Panmunjon Armistice of July 27, 1953, is contained in the Agreement concerning a Military Armistice in Korea, with annex signed at Panmunjon on July 27, 1953, by the Commander in Chief of the United Nations Command, the Supreme Commander of the Korean People's Army, and the Commander of the Chinese People's Volunteers (TIAS 2782; 4 UST 234; entered into force July 27,

89

Military Assistance and Sales

Assistance and Sales

On August 5, 1977, President Carter signed into law H.R. 6884. the International Security Assistance Act of 1977 (Public Law 9592). In his statement on signing the bill, President Carter indicated that this legislation makes possible such programs as military assistance, international military education and training, and foreign military sales financing during the fiscal year 1978. He noted that "some two-thirds of the funds authorized by the bill, as I had requested. will be for nonmilitary programs" designed "to bring economic and political stability to troubled regions of the world."

President Carter's statement also expressed deep reservations about two provisions amending the Arms Export Control Act to permit Congress to disapprove of a Presidential action through the adop tion of a concurrent resolution of disapproval. Excerpts from this portion of his statement follow:

I must note my serious concern over sections 16 and 20 of the bill. These provisions amend the Arms Export Control Act in such a way as to let Congress prevent Presidential action authorized under law simply by adopting a concurrent resolution of disapproval. Such provisions raise major constitutional questions, since Article I, section 7 of the Constitution requires that congressional action having the force and effect of law be presented to the President for approval. These provisions also have the potential of involving Congress in the execution of the laws, a responsibility reserved for the President under the Constitution. I am approving H.R. 6884 because of its importance to our foreign relations and national security, but I must express my deep reservations about these two provisions and my intention to preserve the constitutional authority of the President.

The above quotations from President Carter's statement appear at 13 Weekly Comp. of Pres. Doc. 1186 (Aug. 8, 1977).

Portions of secs. 16 and 20 of the International Security Assistance Act of 1977 (P.L. 95–92) follow:

Sec. 16. Section 3(d) of the Arms Export Control Act is amended—

(3) by adding the following new paragraph at the end thereof: "(2) Unless the President states in the certification submitted pursuant to this subsection that an emergency exists which requires that consent to the proposed transfer become effective immediately in the national security interests of the United States, such consent shall not become effective until 30 calendar days after the date of such submission and such consent shall become effective then only if the Congress does not adopt, within such 30-day period, a concurrent resolution disapproving the proposed transfer.". 91 Stat. 622.

SEC. 20. Section 38(b) (3) of the Arms Export Control Act is amended by adding at the end thereof the following new sentence: "The prohibition contained in the first sentence of this paragraph shall not apply to the issuance of licenses under this section for the export of major defense equipment to Australia, Japan, or New Zealand, or major defense equipment sold commercially in implementation of an agreement between the United States Government and the government of a foreign country for the production of the major defense equipment to which such licenses relate if the President has submitted a certificate with respect to such proposed agreement, prior to its signature, to the Speaker of the House of Representatives and to the chairman of the Committee on Foreign Relations of the Senate in the same form as the certification required under section 36(b) of this Act and subject to the requirements of such section.".

91 Stat. 623.

Sec. 38(b) (3) of the Arms Export Control Act, 22 U.S.C. 2778, formerly read as follows:

(3) No license may be issued under this chapter for the export of any major defense equipment sold under a contract in the amount of $25,000,000 or more to any foreign country which is not a member of the North Atlantic Treaty Organization unless such major defense equipment was sold under this chapter.

Sec. 36(b) of the Arms Export Control Act requires the President to submit a certification to Congress in "the case of any letter of offer to sell any defense articles or services" under certain provision of the Act "for $25,000,000 or more, or any major defense equipment for $7,000,000 or more . . ." and such proposed sale may only be made after 30 calendar days have passed, unless during that time the Congress disapproves the proposal by concurrent resolution. For the full text of sec. 36(b) of the Arms Export Control Act, see the 1976 Digest, Ch. 14, § 9, pp. 761-762.

Advisory Groups and Missions

Section 7 of the International Security Assistance Act of 1977 (Public Law 95-92), approved August 4, 1977, amended section 515 of the Foreign Assistance Act of 1961, as amended, to provide various constraints on the number and functions of U.S. military assistance advisory groups and military missions in foreign countries. Section 515 (b) permits the President to assign more than six military personnel to each of Korea, Panama, Brazil, Morocco, Iran, Kuwait, Saudi Arabia, Greece, Turkey, Indonesia, Thailand, Portugal, Spain, Jordan and the Philippines to perform certain management and other functions related to U.S. military assistance and sales programs in fiscal year 1978. Up to six personnel may be assigned under section 515(c) to other countries as well. Section 515 further provides, inter alia, that no more than 865 members of the U.S. Armed Forces may be assigned under sections 515 (b) and (c) in fiscal year 1978, that these members serve under the supervision of the Chief of the U.S. Diplomatic Mission, and that defense attaches may perform security assistance management functions only if the President makes a certain determination.

257-179 O-79-64

Portions of sec. 7 follow:

SEC. 515. OVERSEAS MANAGEMENT OF ASSISTANCE AND SALES PROGRAMS— (a) No military assistance advisory group, military mission, or other organization of United States military personnel performing similar military advisory functions under this Act or the Arms Export Control Act may operate in any foreign country unless specifically authorized by the Congress. The prohibition contained in this subsection does not apply to regular units of the Armed Forces of the United States engaged in routine functions de signed to bring about the standardization of military operations and proce dures between the Armed Forces of the United States and countries which are members of the North Atlantic Treaty Organization or other defense treaty allies of the United States.

(b) (1) In order to carry out his responsibilities for the management during the fiscal year 1978 of international security assistance programs conducted under this chapter, under chapter 5 of this part, or under the Arms Expert Control Act, the President may assign members of the Armed Forces of the United States to perform necessary functions with respect to such programs in the countries specified in section 504 (a) (1) and in the Republic of Korea. Panama, Brazil, Morocco, Iran, Kuwait, and Saudi Arabia. Members of the Armed Forces assigned under this subsection shall have as their primary functions logistics management, transportation, fiscal management, and contract administration of country programs. It is the sense of the Congress that advisory and training assistance in the countries specified above shall primarily be provided by personnel who are not assigned under this subsection and who are detailed for limited periods to perform specific tasks.

(2) The total number of members of the Armed Forces assigned under this subsection to each country specified in paragraph (1) of this subsection may not exceed the number justified to the Congress in the congressional presentation materials, unless the Committee on Foreign Relations of the Senate and the Committee on International Relations of the House of Representatives are so notified.

(3) Members of the Armed Forces authorized to be assigned to Iran. Kuwait, and Saudi Arabia by paragraph (1) of this subsection may only be assigned to such countries on a fully reimbursable basis under section 21(a) of the Arms Export Control Act, except that this requirement shall apply only to the extent that the number of members of the Armed Forces assigned to each such country exceeds six.

(c) The President may assign not to exceed three members of the Armed Forces to any country not specified in subsection (b) (1) to perform accounting and other management functions with respect to international security assistance programs conducted under this chapter, chapter 5 of this part, or under the Arms Export Control Act, except that not to exceed three additional members of the Armed Forces may be assigned to a country to perform such functions when specifically requested by the Chief of the Diplomatic Mission as necessary to the efficient operation of the Mission.

(d) The total number of members of the Armed Forces assigned to foreign countries under subsections (b) and (c) may not exceed 865 for the fiscal year 1978.

(e) Members of the Armed Forces assigned to a foreign country under subsection (b) or (c) shall serve under the direction and supervision of the Chief of the United States Diplomatic Mission in that country.

(f) Defense attachés may perform overseas management functions described in this section only if the President determines that the performance of such functions by defense attachés is the most economic and efficient means of performing such functions. The President shall promptly report each such determination to the Speaker of the House of Representatives and to the chairman of the Senate Committee on Foreign Relations and the chairman of the Senate Committee on Armed Services, together with a description of the number of personnel involved and a statement of the reasons for such determination. The number of defense attachés performing overseas management functions in a country under this subsection may not exceed the number of defense attachés authorized to be assigned to that country on December 31. 1976.

91 Stat. 615-616.