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INTRODUCTION
Mr. President, the recent CBS incident involving the record of President Bush's service in the Texas Air National Guard sheds light on the need for a federal statute generally criminalizing the forgery of federal government documents. I believe that when it comes to crimes involving the fabrication of federal documents or writings, the federal government has an obligation to step in and show the offenders there are serious consequences.
Many experts initially doubted the authenticity of the memos in question, which negatively and falsely characterized President Bush's time in the Texas Air National Guard. We now believe these memos were created on a modern word-processing computer, rather the 1970s era typewriter as alleged in the original CBS story.
COLONEL KILLIAN & MARION KNOX Lieutenant Colonel Jerry Killian was George Bush's commanding officer during his service in the Air National Guard in the 1970s. Unfortunately, Lt. Col. Killian passed away in 1984 and therefore could not defend his records.
However, Colonel Killian's secretary, Marion Knox, typed all of his correspondence between 1956 and 1979. Referring to the memos in question she said, "I know I didn't type 'em." It is clear that the documents CBS shared with American voters were more than suspect. After the fact-since CBS could not verify its reporting-I am pleased to see that CBS has belatedly retracted its story.
ADVANCE NOTICE TO KERRY CAMPAIGNWe also now know that the Kerry campaign was aware that CBS was planning to air the story four or five days before the fact, while the White House only received word on the eve of the story being broadcast.
This advance notice to the Kerry campaign is clear evidence of liberal bias. This bias highlights the intent of the liberal media to influence the American voters-rather than reporting objective news.
President Bush stands by his honorable service in the Air National Guard. He should not have had to worry about the threat of nefarious and petty efforts to defame his character.
CBS ACTIONSI appreciated Dan Rather's words, "I want to say, personally and directly, I'm sorry." But saying I'm sorry just doesn't cut it.
Under much pressure, CBS has appointed an independent panel to investigate its reporting of the President's service in the Texas Air National Guard. I understand this panel is to be headed by former Attorney General Dick Thornburg and former Associated Press chief executive and former Pennsylvania Governor Lou Boccardi.
I agree with many of my colleagues from the House of Representatives who were dismayed that CBS, a network that should be responsible to report objective news, involved itself in a campaign that mislead the public and slandered the President. Therefore, I am proposing legislation to criminalize this type of action in general.
GENESIS OF THE LEGISLATIONAfter learning of the CBS scandal, I was curious about the penalty for the forgery of federal documents. In seeking the answer to this question, I called the Department of Justice. Their Congressional Relations Office promptly responded, "It depends."
The Justice Department stated that similar cases were often charged under the general sections of the Fraud and False Statements Chapter of the United States Criminal Code. These sections have proven quite useful to the prosecutors at the Department of Justice.
I learned of a loophole in the existing law regarding forgery and false statements. I learned that there are no general sections of the United States Criminal Code for Forgery and Counterfeiting. Officials from the Department of Justice noted the absence of a general standalone statute that criminalizes the actions of those who would forge documents of the federal government, regardless of the end they seek to achieve or what the documents are. Currently, the prosecution of such actions depends completely on the context and how forged documents were the means to an end.
Chapter 25 of Title 18 of the United States Code addresses various offenses in Counterfeiting and Forgery. The current 45 sections of the Counterfeiting and Forgery chapter essentially fall into four broad categories:
- Financial obligations (including notes, postage, checks, securities, bonds, coins, money orders, debentures, et cetera),
- Military and naval discharge certificates or official passes,
- Transportation matters and motor vehicle documents, and
- The seals of agencies (including courts, departments, and other agencies).
PIECEMEAL ENACTMENT OF COUNTERFEITING AND FORGERY CODEThe legislative history of the forty-five sections of the Counterfeiting and Forgery Chapter indicates that the sections were enacted piecemeal without a unifying, overarching section. If forgery takes place but does not fall into one of these sections, there is no penalty.
CONTRAST WITH FRAUD AND FALSE STATEMENTS CODEChapter 47 of Title 18 of the United States Code regarding Fraud and False Statements also contains disparate sections enacted piecemeal.
In contrast, however, the Fraud and False Statements Chapter does have an overarching section, Section 1001 that unifies its disparate, piecemeal parts.
In light of the recent situation involving President Bush's record, these broad, disparate sections need to include in general the fabrication of federal writings or memos.
EXAMINING THE APPLICABILITY OF OTHER STATUTESIn speaking with officials from the Department of Justice, I have also become aware of concerns over whether the existing statute regarding fraud, 18 § USCS § 1001, can be used in this CBS incident. Chapter 47 on Fraud and False Statements specifically condemns false statements, but only those with the intent of defrauding the federal government.
There are questions whether the "intent to defraud the United States or any agency thereof" is applicable or whether it could successfully be argued that instead it was the voters of the United States who were intentionally defrauded, distinguishing in certain fashion "United States" from "voters" or the like.
These concerns validate the need to criminalize the specific act of forging federal documents. Technically, in the CBS instance, it could be argued that the forged federal document did not monetarily or otherwise tangibly take away from the federal government. I would argue that it did harm the federal government by infringing on the federal government's copyright on its work. It certainly did affect millions of Americans by giving them a false and misleading impression about a presidential candidate. But it needs to be clarified.
NEED TO PROTECT FEDERAL SERVANTS GOVERNMENT-WIDEAs placed under Chapter 25 of Title 18, my bill would criminalize general forgery of federal government documents, including those that characterize or purport to characterize official federal activity, service, contract, obligation, duty, or property.
If someone attempts to forge, in the name of an official of the federal government, a document or memo that addresses an official government duty or act, that person should be held accountable. There needs to be a federal law prohibiting such forgery generally so that prosecution of the same does not fall through the cracks.
Currently, there is no catch-all section to address all forged federal writings, such as a note from one official to another about federal service.
I serve on the Senate Armed Services Committee and I honor those who serve in the National Guard. Not only has the CBS incident resulted in slander to the honorable National Guard service of President Bush, it also highlights the risk to the records of other military service members and, moreover, ALL federal servants government-wide.
A civil servant at the General Services Administration, which the Environment and Public Works Committee I chair happens to oversee, is equally deserving of being protected from a forgery of his or her work records. Right now there is no section in the forgery chapter of the US Code that specifically addresses protection for General Services Administration personnel. This omission is a problem we must correct.
PUBLISHING FORGED DOCUMENTS My legislation also includes language to condemn those who, knowingly or negligently failing to know, transmit or present any such forged federal writing or record, which characterizes official federal activity or service. This general criminalization of publishing forged documents follows existing provisions of the forgery code. If a major news network broadcasts a story based on alleged federal documents, they must take the responsibility to verify those records.
WHO DID FORGE THE DOCUMENTS?
While CBS may not have taken part in the creation of the memos in question, and indeed I think I join the American people in yearning to know who did forge these memos, the network still touted them as verified and broadcast the forged memos as truthful to millions of American voters.
I look forward to a full criminal investigation of who did forge the documents.
INTENTIONAL OFFENSES VERSUS NEGLIGENT OFFENSES
I draw an analogy in distinguishing between murder and negligent homicide. Both are crimes. Murder is intentional and negligent homicide is not, but in both crimes someone was killed. While CBS may not have had the intention to deceive its audience, the false information was communicated when it was negligently not verified, and the damage was done nonetheless.
CONGRATULATING HARD WORK OF THOSE WHO DISCOVERED THE TRUTH
If it were not for the work of many astute people working through the Internet and otherwise, this travesty would not have been on its way to being exposed and fully prosecuted criminally. CBS and its surrogates pointedly disparaged the people who told the truth as mere second-class journalists of the Internet and cable television and talk-radio persuasions. Rather, it is CBS that has proven itself to be of even less than second-class journalism.
I note that numerous pundits have been discussing recently that the very vitality of the networks is faltering with the explosion of other media. Pundits have cited CBS's additional poor judgment in failing to cover the political conventions as well as other media outlets did. CBS owes a separate apology to those truth-tellers whom it slandered and who have shown better judgment than CBS.
MEDIA BIAS
I know that it can be difficult to communicate information without also conveying one's personal position on a matter. However, in a free society such as ours, the news media has a responsibility to work to be fair and balanced-to tell both sides of the story without letting journalistic spin cloud their judgment.
Television, print, and the Internet are powerful media. They shape our lives and provide some part of the education of our children, whether we like it or not. I believe the time has come for the media to take responsibility for its actions-rather than manipulate public opinion to lobby the causes and politicians the media support. Facts, not conclusions or erroneous records, should be reported. Elections are a powerful example ofwhy journalists must hold themselves to the highest of standards. People can then synthesize information for themselves.
CONCLUSION
In conclusion, I argue that the media has a grave responsibility to ensure that what it reports is a true and accurate representation of the facts.
It could be argued that if CBS either forged the documents or knowingly represented forged document as being true, there is no penalty under the law.
We need to criminalize and establish the consequences for forging federal documents. I urge my colleagues to stand with me in supporting this appropriate and long-needed federal forgery legislation, and I ask unanimous consent that the text of the legislation and other accompanying documents be included in the record at this point.
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