[Congressional Record Volume 145, Number 98 (Tuesday, July 13, 1999)]
[Senate]
[Pages S8384-S8385]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEAHY:
  S. 1360. A bill to preserve the effectiveness of Secret Service 
protection by establishing a protective function privilege, and for 
other purposes; to the Committee on the Judiciary.


            SECRET SERVICE PROTECTION PRIVILEGE ACT OF 1999

  Mr. LEAHY. Mr. President, I rise today to introduce the Secret 
Service Protective Privilege Act of 1999. This legislation is intended 
to ensure the ability of the United States Secret Service to fulfill 
its vital mission of protecting the life and safety of the President 
and other important persons.

  Almost five months have passed since the impeachment proceedings 
against President Clinton were concluded, and the time has come for 
Congress to repair some of the damage that was done during that 
divisive episode. I refer to the misguided efforts of Independent 
Counsel Kenneth Starr to compel Secret Service agents to answer 
questions about what may have observed or overheard while protecting 
the life of the President.
  Few national interests are more compelling than protecting the life 
of the President of the United States. The Supreme Court has said that 
the nation has ``an overwhelming interest in protecting the safety of 
its Chief Executive and in allowing him to perform his duties without 
interference from threats of physical violence.'' [Watts v. United 
States, 394 U.S. 705, 707 (1969).] What's at stake is not merely the 
safety of one person. What's at stake is the ability of the Executive 
Branch to function in an effective and orderly fashion, and the 
capacity of the United States to respond to threats and crises. Think 
of the shock waves that rocked the world in November 1963 when 
President Kennedy was assassinated. The assassination of a President 
has international repercussions and threatens the security and future 
of the entire nation.
  The threat to our national security and to our democracy extends 
beyond the life of the President to those in direct line of the Office 
of the President--the Vice President, the President-elect, and the Vice 
President elect. By Act of Congress, these officials are required to 
accept the protection of the Secret Service--they may not turn it down. 
This statutory mandate reflects the critical importance that Congress 
has attached to the physical safety of these officials.
  Congress has also charged the Secret Service with responsibility for 
protecting visiting heads of foreign states and foreign governments. 
The assassination of a foreign head of state on American soil could be 
catastrophic from a foreign relations standpoint and could seriously 
threaten national security.
  The Secret Service Protective Privilege Act of 1999 would enhance the 
Secret Service's ability to protect these officials, and the nation, 
from the risk of assassination. It would do this by facilitating the 
relationship of trust between these officials and their Secret Service 
protectors that is essential to the Service's protective strategy.
  The Service uses a ``protective envelope'' method of protection. 
Agents and officers surround the protectee with an all-encompassing 
zone of protection on a 24-hour-a-day basis. In the face of danger, 
they will shield the protectee's body with their own bodies and move 
him to a secure location.
  That is how the Secret Service averted a national tragedy on March 
30, 1981, when John Hinckley attempted to assassinate President Reagan. 
Within seconds of the first shot being fired, Secret Service personnel 
had shielded the President's body and maneuvered him into the waiting 
limousine. One agent in particular, Agent Tim McCarthy, positioned his 
body to intercept a bullet intended for the President. If Agent 
McCarthy had been even a few feet farther from the President, history 
might have gone very differently.
  For the Secret Service to maintain this sort of close, unremitting 
proximity to the President and other protectees, it must have their 
complete, unhesitating trust and confidence. Secret Service personnel 
must be able to remain at the President's side even during confidential 
and sensitive conversations, when they may overhear military secrets, 
diplomatic exchanges, and family and private matters. If our Presidents 
do not have complete trust in the Secret Service personnel who protect 
them, they could try to push away the Service's ``protective envelope'' 
or undermine it to the point where it could no longer be fully 
effective.
  This is more than a theoretical possibility. Consider what former 
President Bush wrote last April, after hearing of the independent 
counsel's efforts to compel Secret Service testimony:

       The bottom line is I hope that [Secret Service] agents will 
     be exempted from testifying before the Grand Jury. What's at 
     stake here it the protection of the life of the President and 
     his family and the confidence and trust that a President must 
     have in the [Secret Service].
       If a President feels that Secret Service agents can be 
     called to testify about what they might have seen or heard 
     then it is likely that the President will be uncomfortable 
     having the agents near by.
       I allowed the agents to have proximity first because they 
     had my full confidence and secondly because I knew them to be 
     totally discreet and honorable. . . .
       . . . I can assure you that had I felt they would be 
     compelled to testify as to what they had seen or heard, no 
     matter what the subject, I would not have felt comfortable 
     having them close in
       . . . I feel very strongly that the [Secret Service] agents 
     should not be made to appear in court to discuss that which 
     they might or might not have seen or heard.
       What's at stake here is the confidence of the President in 
     the discretion of the [Secret Service]. If that confidence 
     evaporates the agents, denied proximity, cannot properly 
     protect the President.

  As President Bush's letter makes plain, requiring Secret Service 
agents to betray the confidence of the people whose lives they protect 
could seriously jeopardize the ability of the Service to perform its 
crucial national security function.
  The possibility that Secret Service personnel might be compelled to 
testify about their protectees could have a particularly devastating 
affect on the Service's ability to protect foreign dignitaries. The 
mere fact that this issue has surfaced is likely to make foreign 
governments less willing to accommodate Secret Service both with 
respect to the protection of the President and Vice President on 
foreign trips, and the protection of foreign heads of state traveling 
in the United States.
  The recent court decisions, which refused to recognize a protective 
function privilege, could have a devastating impact upon the Secret 
Service's ability to provide effective protection. The courts ignored 
the voices of experience--former Presidents, Secret Service Directors, 
and others--who warned of the potentially deadly consequences. The 
courts disregarded the lessons of history. We cannot afford to be so 
cavalier; the stakes are just too high.
  The security of our chief executive officers and visiting foreign 
heads of state is a matter that transcends all partisan politics. I 
urge my colleagues to support this legislation and ask unanimous 
consent that the bill and a summary of the bill be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                S. 1360

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Secret Service Protective 
     Privilege Act of 1999''.

     SEC. 2. FINDINGS AND PURPOSES.

       (a) Findings.--Congress makes the following findings:
       (1) The physical safety of the Nation's top elected 
     officials is a public good of transcendent importance.
       (2) By virtue of the critical importance of the Office of 
     the President, the President and those in direct line of the 
     Presidency are subject to unique and mortal jeopardy--
     jeopardy that in turn threatens profound disruption to our 
     system of representative government and to the security and 
     future of the Nation.

[[Page S8385]]

       (3) The physical safety of visiting heads of foreign states 
     and foreign governments is also a matter of paramount 
     importance. The assassination of such a person while on 
     American soil could have calamitous consequences for our 
     foreign relations and national security.
       (4) Given these grave concerns, Congress has provided for 
     the Secret Service to protect the President and those in 
     direct line of the Presidency, and has directed that these 
     officials may not waive such protection. Congress has also 
     provided for the Secret Service to protect visiting heads of 
     foreign states and foreign governments.
       (5) The protective strategy of the Secret Service depends 
     critically on the ability of its personnel to maintain close 
     and unremitting physical proximity to the protectee.
       (6) Secret Service personnel must remain at the side of the 
     protectee on occasions of confidential conversations and, as 
     a result, may overhear top secret discussions, diplomatic 
     exchanges, sensitive conversations, and matters of personal 
     privacy.
       (7) The necessary level of proximity can be maintained only 
     in an atmosphere of complete trust and confidence between the 
     protectee and his or her protectors.
       (8) If a protectee has reason to doubt the confidentiality 
     of actions or conversations taken in sight or hearing of 
     Secret Service personnel, the protectee may seek to push the 
     protective envelope away or undermine it to the point at 
     which it could no longer be fully effective.
       (9) The possibility that Secret Service personnel might be 
     compelled to testify against their protectees could induce 
     foreign nations to refuse Secret Service protection in future 
     state visits, making it impossible for the Secret Service to 
     fulfill its important statutory mission of protecting the 
     life and safety of foreign dignitaries.
       (10) A privilege protecting information acquired by Secret 
     Service personnel while performing their protective function 
     in physical proximity to a protectee will preserve the 
     security of the protectee by lessening the incentive of the 
     protectee to distance Secret Service personnel in situations 
     in which there is some risk to the safety of the protectee.
       (11) Recognition of a protective function privilege for the 
     President and those in direct line of the Presidency, and for 
     visiting heads of foreign states and foreign governments, 
     will promote sufficiently important interests to outweigh the 
     need for probative evidence.
       (12) Because Secret Service personnel retain law 
     enforcement responsibility even while engaged in their 
     protective function, the privilege must be subject to a 
     crime/treason exception.
       (b) Purposes.--The purposes of this Act are--
       (1) to facilitate the relationship of trust and confidence 
     between Secret Service personnel and certain protected 
     officials that is essential to the ability of the Secret 
     Service to protect these officials, and the Nation, from the 
     risk of assassination; and
       (2) to ensure that Secret Service personnel are not 
     precluded from testifying in a criminal investigation or 
     prosecution about unlawful activity committed within their 
     view or hearing.

     SEC. 3. ESTABLISHMENT OF PROTECTIVE FUNCTION PRIVILEGE.

       (a) Admissibility of Information Acquired by Secret Service 
     Personnel While Performing Their Protective Function.--
     Chapter 203 of title 18, United States Code, is amended by 
     inserting after section 3056 the following:

     ``Sec. 3056A. Testimony by Secret Service personnel; 
       protective function privilege

       ``(a) Definitions.--In this section:
       ``(1) Protectee.--The term `protectee' means--
       ``(A) the President;
       ``(B) the Vice President (or other officer next in the 
     order of succession to the Office of President);
       ``(C) the President-elect;
       ``(D) the Vice President-elect; and
       ``(E) visiting heads of foreign states or foreign 
     governments who, at the time and place concerned, are being 
     provided protection by the United States Secret Service.
       ``(2) Secret service personnel.--The term `Secret Service 
     personnel' means any officer or agent of the United States 
     Secret Service.
       ``(b) General Rule of Privilege.--Subject to subsection 
     (c), testimony by Secret Service personnel or former Secret 
     Service personnel regarding information affecting a protectee 
     that was acquired during the performance of a protective 
     function in physical proximity to the protectee shall not be 
     received in evidence or otherwise disclosed in any trial, 
     hearing, or other proceeding in or before any court, grand 
     jury, department, officer, agency, regulatory body, or other 
     authority of the United States, a State, or a political 
     subdivision thereof.
       ``(c) Exceptions.--There is no privilege under this 
     section--
       ``(1) with respect to information that, at the time the 
     information was acquired by Secret Service personnel, was 
     sufficient to provide reasonable grounds to believe that a 
     crime had been, was being, or would be committed; or
       ``(2) if the privilege is waived by the protectee or the 
     legal representative of a protectee or deceased protectee.
       ``(d) Concurrent Privileges.--The proximity of Secret 
     Service personnel to a protectee engaged in a privileged 
     communication with another shall not, by itself, defeat an 
     otherwise valid claim of privilege.''.
       (b) Technical and Conforming Amendment.--The analysis for 
     chapter 203 of title 18, United States Code, is amended by 
     inserting after the item relating to section 3056 the 
     following:

``3056A. Testimony by Secret Service personnel; protective function 
              privilege.''.

     SEC. 4. APPLICATION.

       This Act and the amendments made by this Act shall apply to 
     any proceeding commenced on or after the date of enactment of 
     this Act.
                                  ____


     Summary of the Secret Service Protective Privilege Act of 1999

  The proposed legislation would add a new section 2056A to title 18, 
United States Code, establishing a protective function privilege. There 
are four subsections.
  Subsection (a) establishes the definitions used in the section.
  Subsection (b) states the general rule that testimony by Secret 
Service personnel or former Secret Service personnel regarding 
information affecting a protectee that was acquired during the 
performance of a protective function in physical proximity to the 
protectee shall not be received in evidence or otherwise disclosed. The 
privilege operates only with respect to the President, the Vice 
President (or other officer next in the order of succession to the 
Office of President), the President-elect, the Vice President-elect, 
and visiting heads of foreign states or foreign governments.
  Subsection (c) creates a crime-fraud exception to the privilege, 
which applies with respect to information that, at the time it was 
acquired by Secret Service personnel, was sufficient to provide 
reasonable grounds to believe that a crime had been, was being, or 
would be committed. This subsection also provides that the privilege 
may be waived by a protectee or by his or her legal representative.
  Subsection (d) provides that the proximity of Secret Service 
personnel to a protectee shall not, by itself, defeat an otherwise 
valid claim of privilege. This addresses the situation in which Secret 
Service personnel overhear confidential communications between the 
protectee and, say, the protectee's spouse or attorney.
                                 ______