1. The non-ambassador
Kenneth Towsey looks like a diplomat, sounds like a diplomat, and acts like a diplomat. He works in a redbrick building, a typical converted house in the Embassy Row section of Washington, where he carries out the functions of any ambassador to the United States from a small country: following and digesting American domestic political developments, exchanging diplomatic communications with his home base, promoting his nation’s interests with the American government and public. He has most of the prerogatives of such a position, too, including a staff of four assistants and a chauffeur. He smokes good tobacco in his pipe, eats at the finest restaurants, and can usually count on being properly received when he travels to speak in distant cities. All other things being equal, he would also be entitled to a certain degree of rank and seniority in the Washington diplomatic corps, having first been assigned to this country in early 1964.
But all things are not equal for Towsey, because he represents the rebel government of Rhodesia. He is one of the 270,000 whites who—in their own domain, maintaining that they are not equal but superior—hold all the political power in a country whose population includes more than 6 million blacks. And so he is treated as a pariah in the diplomatic community. His little legation is not an embassy at all but the Rhodesian Information Office, and ever since a bomb exploded on the front steps one Saturday night a few years ago, there is no identifying nameplate on the front door.
The fact is that Rhodesia is not formally recognized as a sovereign nation by any country in the world. Towsey is not an ambassador but a resident alien, required to perform his business under the terms of the Foreign Agents Registration Act. He is not included in diplomatic functions and parties except occasionally by the South Africans, and even they have turned somewhat cool as Rhodesia’s situation has become more tenuous and isolating. The Executive Protective Service, the special police force deployed by the federal government to patrol foreign missions in the capital, excludes the Rhodesians from its list (although EPS officers have been known to cast a glance in their direction while checking out the Panamanian Embassy next door). Towsey’s is an increasingly lonely and rather precarious vigil.
Life here was not always so grim for him. Indeed, when Towsey first came to Washington, just after the dissolution of the ill-fated Central African Federation of Northern and Southern Rhodesia and Nyasaland at the end of 1963 (the British colonies of Northern Rhodesia and Nyasaland at that time became the independent, black-ruled nations of Zambia and Malawi respectively, while the Southern Rhodesians continued to negotiate over their future), he was carried on the rolls of the British Embassy, although his unit worked independently as the Office of the Minister for Southern Rhodesian Affairs. (Towsey, who is fifty-six years old. was born in Nottingham, England. He served as a pilot in the Royal Navy during World War II and then, like many others who were disillusioned with the postwar opportunities in England, recruited himself into public service in Southern Rhodesia.) But once the Rhodesians “did our thing.“ as Towsey puts it—unilaterally declaring their independence from Britain on November 11, 1965, rather than submit to a timetable for achievement of black majority rule—the real freeze began.
For a while thereafter. Towsey maintained unofficial contact with officers he knew in the U.S. State Department’s Bureau of African Affairs. The British increased their pressure for American support of their position, however, and it has now been at least seven years since Towsey’s last meaningful communication with State. Twice during that time Towsey has requested meetings with successive assistant secretaries of state for African affairs, and they have been, as he euphemistically phrases it. “unresponsive.“
Until recently Towsey and his government could nonetheless count on a measure of ambivalence in American sentiment about the volatile and, for much of the world, symbolic Rhodesian issue.
While the United States voted in 1966 and 1968 for United Nations Security Council resolutions imposing mandatory economic sanctions against Rhodesia, the Senate repeatedly approved legislation sponsored by Senator Harry F. Byrd, Jr., Independent of Virginia, and known as the Byrd Amendment, which authorized this country to buy Rhodesian chrome, thus violating those same sanctions. Neither the Johnson nor the Nixon Administration seemed disposed to lend assistance, rhetorical or actual, to liberation movements seeking to overthrow the recalcitrant regime of Rhodesian Prime Minister Ian Smith; and Gerald Ford appeared to have as little knowledge as most other Americans about the location of Rhodesia on the map of the world. Just the fact that the black rebellions in Mozambique, Angola, Rhodesia, and Southwest Africa were being supported and armed by the Soviet Union, China, Cuba, and other communist countries was reason enough for some American politicians to assume that the best interests of the United States lay in the other direction. Towsey found sympathetic audiences when he portrayed Rhodesia’s embattled white colonials as the underdogs during his talks before Kiwanis, Rotary, and other service clubs.
But then, in April of this year. Secretary of State Henry Kissinger, needing a diversion from other problems, made his much-postponed visit to Africa. In a speech in Lusaka, the capital of Zambia, Kissinger declared American endorsement of proposals advanced by British Prime Minister James Callaghan, among others, requiring a transition period of no more than two years until achievement of direct majority rule in Zimbabwe (the liberationists’ term for their country, which Kissinger used). “The [Rhodesian] regime must understand,“ the Secretary warned, “that it cannot expect United States support either in diplomacy or in material help at any stage in its conflict with African states or African liberation movements. On the contrary, it will face our unrelenting opposition until a negotiated settlement is achieved.“ Kissinger promised American aid to any neighbor nation that undergoes economic hardship in closing its frontier with Rhodesia to enforce sanctions, and he offered to launch a new Administration initiative on Capitol Hill to try to repeal the Byrd Amendment.
President Ford, in a move not so widely applauded in black Africa, later gave the Rhodesian regime hope by proposing to meet personally with Smith, an offer that was either a diplomatic lapse or a conscious attempt to compete with Ronald Reagan for the votes of conservative Republicans sympathetic to the white Rhodesians. Ford’s own election-year problems also assured that he would not fight particularly hard for congressional acquiescence in leveling economic sanctions against Rhodesia.
Towsey is bitter over Kissinger’s Lusaka statement. Sitting in his office— which is decorated with African sculpture, a dazzling color photograph of Salisbury, Rhodesia’s capital city, at night, and portrait pictures of Cecil Rhodes and Ian Smith—he complains, “I don’t know whether to be more impressed by its impertinence or its ineptitude . . . The whole idea of dictating the internal policies of a country where you have no [diplomatic] presence is mind-boggling.”American backing for the two-year formula, which was the last position of moderate black Rhodesian nationalists before they broke off negotiations with the Smith government, “will not bring peace, but will intensify the conflict,” Towsey insists, because, he says, white Rhodesians, even those to the left of Smith, will never accept such a brief transition period for surrender of their political power. He shakes his head: “Imagine— the United States is saving that it will stand aside for acts of aggression.“
In addition to the Kiwanians and Rotarians and others who show interest (a physician in New York recently launched a new Friends of Rhodesia group). Towsey communicates these days primarily with a dwindling band of Rhodesian sympathizers in Congress. They are, as he calls them, “the more conservative-minded”: among them senators James Allen, Democrat of Alabama, Strom Thurmond, Republican of South Carolina, Howard Cannon, Democrat of Nevada, William Brock, Republican of Tennessee, and James Buckley, Conservative of New York, and congressmen John Ashbrook, Republican of Ohio, Philip Crane, Republican of Illinois, and Lawrence McDonald, Democrat of Georgia (who is a member of the national council of the John Birch Society). But Rhodesia’s best friend in Washington is still Harry Flood Byrd, Jr., according to Towsey.
Senator Byrd, for his part, demurs in his courtly way: “I have never been to Rhodesia . . . I have never seen Mr. Smith, and I do not endorse his government at all. That’s not our determination to make.” He insists that his interest in the matter has only to do with chrome, a metal on the strategic materials list that is used in all stainless steel products, including jet aircraft and missiles. Chrome is obtainable in significant quantity only from Rhodesia. South Africa, and the Soviet Union. It is one of the world’s worst-kept trade secrets that the Soviets, for all of their espousal of pro-Third World principles, obtain part of their own chrome supply from Rhodesia by a circuitous route and then sell it off at a profit to American and other customers.
Byrd. a member of the Senate Armed Services Committee, justifies his amendment on the grounds that “we shouldn’t be dependent on Russia for a strategic material.”1 He argues that since Rhodesia is one of the few major sources of the best grades of chrome, the United
States must continue trading with Salisbury. notwithstanding the complaints of the United Nations and the congressional black caucus. “Certainly I favor majority rule,” he says, adding, “but what about Russia? No nation in the world is ruled by fewer people than Russia.”Byrd accuses the government of using a double standard and is still embarrassed that when the University of Virginia invited Ian Smith to speak in Charlottesville during the late 1960s, the State Department denied him a visa.
These are difficult days in Rhodesia, Towsey concedes, what with young men taken away from their families and their jobs for border duty two or three times a year, terrorism on the highways into South Africa, and economic strains so severe that 1975 was a year of negative growth. Yet he purports to share his government’s confidence that it can “take care of the guerrilla threat as we perceive it now“ and then, somewhere down the road, “find a formula [for settlement] that will satisfy black aspirations and meet the apprehensions of white Rhodesians.”
From time to time, though, he does permit himself to think about the possibility that Salisbury might fall into revolutionary hands, and to wonder what he would do in that event. It is difficult for him to imagine returning to England, especially after being denied a visa to go back there for his daughter’s wadding. (Though he is considered a rebel against the Queen, he could probably return eventually if he left the Rhodesian government service and once again swore allegiance to the Crown.) There is always white-ruled South Africa, which has shown a sentimental kinship for its brethren in Rhodesia, even white refusing to intervene militarily on their side and instead trying to build détente with black-ruled states to the north. Towsey does think occasionally that he might retire in the United States; inhospitable though Washington has been of late, “I have been here long enough to feel comfortable with the living conditions.” Even with the clumsy business of majority rule.
2. Law and order revisited
Ask Senator John McClellan, Democrat of Arkansas, what S.I is, and he will probably say, as he did on the Senate floor last year, that it is “a clear, concise, and complete statement of the criminal law carefully drafted in an attempt not only to safeguard the public welfare but also to fully preserve individual freedoms.” Ask the American Civil Liberties Union, and it will surely tell you, as it has in a series of national mailings, that S.l is a repressive piece of legislation, the legacy of former President Richard Nixon and his first attorney general, John Mitchell, designed in large part “to perpetuate secrecy and stifle protest.” Ask certain staff aides to members of the Senate Judiciary Committee, on the other hand, and they are likely to say that S.l although 799 pages long, hopelessly complex, and mired in controversy, has, through an unusual combination of electionand Bicentennial-year circumstances, become a rare vehicle for compromise, and just possibly an opportunity for the Democratic party to regain the initiative in the area of federal crime control.
It is rare for the public, the press, or even a significant number of members of Congress to show great interest in an obscure and abstruse bill “to codify, revise, and reform Title 18 of the United States Code; to make appropriate amendments to the Federal Rules of Criminal Procedure; to make conforming amendments to criminal provisions of other titles of the United States Code; and for other purposes.”This is the kind of important but tedious legislation that is ordinarily left to the experts—the law professors. Justice Department draftsmen, bar association study groups, and students of the Constitution. But S.l, which evolved from ten years of work by those experts, has been irreparably politicized and has now taken its place alongside gun control, abortion, prayer in the schools, and the death penalty as an emotional liberal-conservative litmus-test issue. It is the 1976 version of the old law-and-order prizefight, albeit posed in more sophisticated terms than were previous rounds.
Few people who have bothered to look into the matter deny that the federal criminal laws are in desperate need of updating, rationalization, and a general housecleaning. Title 18, where most of those laws reside, is a hodgepodge of almost 200 years’ worth of congressional acts and judicial decisions. The code’s construction is tortured, and legal terms that mean one thing in one section may mean quite another someplace else. There are at least fifty different “false statement“ sections, making it illegal to lie to an agricultural inspector, an FBI agent, or a ship’s captain, among many others, and imposing different standards and penalties in each instance. A fiveyear prison sentence may still be given to anyone who misuses the name or symbol of Smokey the Bear, and it remains a felony to detain a U.S. government carrier pigeon from its appointed rounds or to rescue the body of an executed felon when it is on its way to dissection in the interests of medical science. Seventy separate statutes deal with theft, and eighty or more with forgery and counterfeiting, yet no law on the books addresses directly the problem of bank embezzlements. Under the mail fraud provision, if somebody steals forty-five letters, he can technically be prosecuted on forty-five separate counts, even if his crime is obviously a single act. The confusion of American laws often makes it difficult if not impossible to administer extradition treaties with other countries.
Theoretically, most of these problems could be solved by a calm and clear rewrite of the existing laws that would make them understandable to judges and lawyers, not to mention the average citizens who may end up as defendants or serving on juries in federal criminal cases. That was the task assigned to the National Commission on Reform of Federal Criminal Laws, a blue-ribbon group appointed by President Johnson in 1966 and chaired by former California Governor Edmund G. “Pat” Brown (who is the father of the present governor).
But it turns out that the character and acceptability of any such rewrite depends on whether the people doing the job have liberal or conservative ink in their pens. The process, like the product, is, in the end, judged along ideological lines. Thus, some of the more conservative members of the Brown Commission, including McClellan and Senator Roman Hruska. Republican of Nebraska, perceiving themselves to be a minority, soon lost interest in its hearings. When the commission’s final report was issued in 1971, it came to be regarded as a liberal document unsympathetic to the needs of law enforcement. Once its proposals were taken up by the Senate Subcommittee on Criminal Laws and Procedures (whose chairman is McClellan and ranking minority member is Hruska) for the drafting of legislation. it was the minority view that received more attention and higher priority.
The subcommittee’s rewrite, offered in January 1973 after two years of its own hearings, was a more conservative document. Concerned with the inevitable problem of how to get the proper attention for such a difficult and complicated measure. Robert Blakey, then chief counsel of McClellan’s subcommittee (and now a law professor at Cornell University), came up with the clever idea of engineering it into place as the first bill introduced in the Senate during the Ninety-third Congress—S.l, a syinbolic name that would get a great deal of attention indeed.
Even that bill, however, was not conservative enough for Richard Nixon, who had been re-elected by an overwhelming margin and was more determined than ever to make his name as a law-and-order man. He instructed the Justice Department to devise yet another version of the criminal code, one that would provide “tougher penalties and stronger weapons” to fight crime. In fact, the Nixon Administration proposal, introduced a few months later as S.1400, was written primarily by career Justice Department lawyers, most of them Democrats with a prosecutor’s bias. Except for requiring that the bill include a provision for the death penalty and tough obscenity laws, higherups at Justice and the White House paid it little attention. John Mitchell, implicated in the Watergate cases, had left the government more than a year earlier; but the legislation, soon merged with the McClellan version, came to be known, especially among its opponents, as the “Nixon-Mitchell criminal code.” That, too, was a symbolic designation that would stay with the codification effort.
Those were the helter-skelter days of Watergate, and through most of 1973 and 1974, the project sat on the back burner out of public view. McClellan and Hruska took more testimony and reviewed additional studies and outside contributions, but attorneys general Elliot Richardson and William Saxbe displayed little interest. Gerald Ford, after he became President, endorsed the effort in a general way but showed no concern for the details. The organized bar, for the most part, stood back, preferring to avoid the controversy. Meanwhile, a new bill was prepared by Senate staffers, a hybrid of most of the previous versions, incorporating some liberal and some conservative elements, along with suggestions from regulatory agencies and lawyers elsewhere in the executive branch. It was introduced in January 1975 as the first Senate bill in the Ninety-fourth Congress, again S.l with broad bipartisan sponsorship, including that of the Democratic and Republican leaders. Mike Mansfield of Montana and Hugh Scott of Pennsylvania. There was a feeling on Capitol Hill that this was it: revision of the federal criminal code would be completed in the Bicentennial year.
Suddenly, with other Washington crises having subsided, a variety of people sat up and took notice. The Reporters Committee for Freedom of the Press, for example, a group that had fought stubbornly against Nixon-era incursions on the First Amendment, asserted that those sections of the bill which purported to be a rewrite of existing espionage laws might actually be a vehicle for severe punishment of present or former government officials who leak classified information, in effect an Official Secrets Act on the British model. The specter of the Nixon Administration’s attempt to prevent publication of the Pentagon Papers and its prosecution of Daniel Ellsberg loomed large. Under the leadership of Jack Landau, once a press spokesman for John Mitchell but now a legal correspondent for the Newhouse newspapers. the Reporters Committee stirred up editors and publishers across the country, and even rural weeklies began to print editorials warning of the threat to freedom of the press posed by S.l.
The ACLU launched a national campaign and fund-raising effort to call attention to the legislation. “STOP S-l,” warned its bright blue pamphlet: “Did you protest the Vietnam War? S.l would put you in jail. Did you read the Pentagon Papers in your newspaper? S.l would put the paper’s editors in jail. Did you think the President’s men [indicted and convicted in the Watergate scandals] could claim they were just following orders? S.l would let them out of jail.”
The ACLU’s crusade, brilliantly orchestrated in coordination with another specially created group, the National Committee Against Repressive Legislation, contended that the bill, by making it illegal to “obstruct a government function,”would squelch peaceful political protest. It charged that S.l “demonstrates a taste for long-term prison sentences“ and would give government officials who violate the law an easy defense that they were only “following orders.“ It would abolish the insanity defense in federal courts. Further, the ACLU argued, by rewriting existing statutes and case law, the bill would encourage wiretapping, give new life to the pre-World War II anti-subversive Smith Act (weakened by the courts in the 1950s after several attempts to punish American Communists), and make it easier to obtain convictions for conspiracies and other “inchoate crimes.“
The ACLU’s efforts took hold. “Stop S.l“ committees sprang up in major cities; congressmen and senators barely familiar with the bill began to get mail and visits from liberal constituents whose opinions they respected, warning them to stay away from the dangerous code revision effort altogether. Senator Birch Bayh, Democrat of Indiana, who had originally said he was cosponsoring the legislation in order to be in a good position to help amend it, took his name off it. The ACLU drafted its own bill, a “liberal alternative“ that was introduced in the House of Representatives by Congressman Robert kastenmeier. Democrat of Wisconsin, and said that nothing else would do.
Some criticism of S.l was considerably less responsible. A cartoonist in the Washington Star, for example, implied that the bill would eliminate an arrested person’s right to make a phone call from the police station. Conservative congressmen and commentators also denounced the legislation for a period last fall after Landau wrote a story for the Newhouse newspapers which was widely syndicated, suggesting that S.l “would make it a federal crime in some instances for a citizen to shoot a nighttime prowler on the spot.“ The bill does neither of those things.
Enter Edward M. Kennedy, the Democratic senator from Massachusetts, whose name and influence can, depending on where you stand, make or break a pending piece of legislation. Kennedy and his well-respected liberal colleague on the Senate Judiciary Committee, Philip Hart, Democrat of Michigan, responded quietly but favorably last February to a proposal by Mansfield and Scott that they get together with McClellan and Hruska to work out a compromise that might save S.l from impending doom. Mansfield and Scott suggested that some thirteen controversial provisions in the bill—the death penalty, the espionage laws, penalties for the use of marijuana, among others—be either deleted or returned to the exact language of existing law and left for individual resolution later on, “in order to facilitate processing“ of the rest of the code. The two Senate leaders pointed out that old Pat Brown himself had stated that “95 percent of S.l’s provisions constitute a noncontroversial major improvement over existing federal criminal laws,”and they argued that it would be a “tragedy“ to let those improvements go down the drain because of more contentious issues.
Kennedy, perhaps because he is up for re-election in Massachusetts this year (or perhaps because he is interested in running for President after all), had already demonstrated his desire to lead Senate Democrats into the lawand-order breach, as his late brother Robert had once tried to do. One important step in this direction was to hire Kenneth Feinberg, a former assistant United States attorney in Manhattan who is knowledgeable on criminal law issues, as an aide to Kennedy’s Subcommittee on Administrative Practice and Procedure. In February of this year. Kennedy designated Feinberg to work with Michael Mullen, an assistant to Hart, in negotiations with representatives of McClellan and Hruska.
The initial horse trading was fast and surprisingly successful. With only minimal prodding. McClellan and Hruska agreed to eliminate the death penalty provision for this year, to drop the last vestiges of the Smith Act altogether (its main use now is that the FBI can cite it as a basis for opening “internal security“ investigations), to leave to the states the question of whether to punish simple possession of small amounts of marijuana, and to lower the authorized maximum sentences spelled out in S.l. The espionage law would be left as is for the time being. The negotiators also hammered out compromises on some seventy-five other less dramatic and more technical, but potentially significant, issues.
Strategists on all sides were beginning to feel optimistic until the ACLU and its allies again lowered the boom. National and local ACLU officials, especially in Massachusetts, denounced the Kennedy-Hart initiative as improper, unnecessarily secretive, and a betrayal of liberal interests. In correspondence, in whispering campaigns, and even in television appearances, opponents of the bill have made ad hominem attacks on Feinberg and Mullen as manipulative characters who are going far beyond the mandate they have been given by their bosses. Another target for such abuse is Ronald Gainer, director of the Justice Department’s Office of Policy and Planning, who, with the authorization of Attorney General Edward Levi—the first attorney general in years to show genuine interest in the criminal code revision—has also participated in the negotiations.
The calmer and more reasonable critics of the latest efforts, including the staffs of other liberals on the Senate Judiciary Committee, argue that S.l as it stands, even with the latest compromises, is still defective. They advocate taking a tougher line with McClellan and Hruska and, if that fails, holding out for a better legislative climate in the next Congress and, perhaps, under a new President. But liberalminded criminologists and constitutional lawyers who have looked closely at the bill insist that some of the ACLU arguments are far-fetched and, as former Watergate Special Prosecutor Archibald Cox put it in a letter to Hart, “a forced and false interpretation which would appear plausible only to one determined to find reasons for seeking to defeat the bill.“ The ACLU, onto a good fund-raising device and an emotional issue, is behaving rather as the National Rifle Association does on the subject of gun control. Theodore Voorhees, an original member of the Brown Commission who is now dean of the Catholic University Law School, has urged Kennedy to put his name on the bill as it stands and press for its adoption by both houses of Congress. Other analysts say that although further concessions may be necessary, a careful reading of the new S.l reveals that it would actually accomplish several goals dear to liberal hearts, for example, making it easier to prosecute white-collar crime and environmental pollution and setting guidelines that would restrict excessive sentences by vindictive judges. Where existing law has merely been rewritten, they argue, it can always be revised later.
As for the climate after the presidential election, congressional conservatives contend that on the law-and-order issue, if on nothing else, public opinion is likely to turn in their favor. (Hruska leaves the Senate this year; his replacement as ranking Republican on the Senate Judiciary Committee is likely to be Strom Thurmond.) Observers feel that if the liberals are wise, they will take what they have and try to pass it, though the consensus is that time has run out for getting the bill through both houses of Congress this year. As Paul Summit, now McClellan’s chief subcommittee counsel, puts it, “The prospects for compromise are better now than they’ve been in a dozen years, and probably better than they’ll be for the next dozen years.”
—SANFORD J. UNGAR
- The best government estimate is that in 1975 the United States obtained 25.5 percent of its chrome from South Africa, 20.7 percent from the Soviet Union, 17.3 percent from Rhodesia, and 36.5 percent from a number of countries with small supplies.↩