[Congressional Record Volume 150, Number 119 (Tuesday, September 28, 2004)]
[Senate]
[Pages S9814-S9816]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. INHOFE:
  S. 2855. A bill to amend chapter 25 of title 18, United States Code, 
to create a general provision similar to provisions found in chapter 47 
of such title, to provide for criminal penalties for the act of forging 
Federal documents; to the Committee on the Judiciary.
  Mr. INHOFE. 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 than the 1970-era 
typewriter, as alleged in the original CBS story.
  LTC Jerry Killian was George Bush's commanding officer during his 
service in Vietnam. Unfortunately, Lieutenant Colonel Killian died in 
1984 and therefore he could not defend his records that he so 
accurately discussed at that time about the quality of service of our 
President.
  I would say this, though: That Colonel Killian's secretary Marion 
Knox typed all of his correspondence between the years 1956 and 1979. 
Referring to the memos in question, she said, ``I know I didn't type 
'em'.''

[[Page S9815]]

  She was very clear. She didn't qualify it. 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 cannot verify its 
reporting--I am pleased to see that CBS has belatedly retracted its 
story.
  We also now know that the Kerry campaign was aware CBS was planning 
to air the story 4 or 5 days before it was aired, while the White House 
did not know about the airing of this story until the eve of the story 
breaking. That shows an obvious bias. I don't think anyone can deny it.
  President Bush stands by his honorable service in the Air National 
Guard. He should not have to worry about the threat of nefarious and 
petty efforts to defame his character.
  I appreciated Dan Rather's words: ``I want to say personally and 
directly I am sorry,'' but saying I am 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 for 
reporting objective news, involved itself in a campaign that misled the 
public and slandered the President. Therefore, I am proposing 
legislation to criminalize this type of action in general. Most people 
believe there is already a statute on the books that would have this 
criminalized.
  After learning of the CBS scandal, I was curious about the penalty. I 
figured there had to be one 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.''
  I ask unanimous consent that a copy of that communication be printed 
in the Record at the conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. INHOFE. Mr. President, 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. Those 
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 there are no general sections of the United 
States Criminal Code for forgery in counterfeiting as there are in the 
other cases. Officials from the Department of Justice noted the absence 
of a general stand-alone 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 these 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.
  This is very important, because if forgery takes place and they do 
not fall into one of these four categories, then there is no penalty 
involved: No. 1, financial obligations. Obviously, this is not such a 
case; No. 2, military and naval discharge certificates; No. 3, 
transportation matters and motor vehicle documents; and No. 4, the 
seals of agencies, including courts, departments, and other agencies.
  What we are saying is, if it doesn't fall into forgery, it doesn't 
fall into one of these four categories; there is no general statute 
that would offer a penalty.
  The legislative history of the 45 sections of the counterfeiting and 
forgery chapter indicate 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.
  Chapter 47 of title 18 of the United States Code regarding the fraud 
and false statements chapter 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 as contrasted to the forgery statute.
  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.
  In 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 to defraud the Federal 
Government. Again, this is talking about fraud and false statements, 
not the forgery statute.
  There are questions as to 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 initially defrauded, distinguishing in certain fashion 
the ``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 incident, 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.
  As 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 
prosecution of the same does not fall through the cracks.
  Currently, there is no catchall section to address all forged Federal 
writings, such as a vote from one official to another about a 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 of the records of other military service 
members and, moreover, all Federal servants governmentwide alike.
  A civil servant at the General Services Administration, which the 
Environment and Public Works Committee which I chair has 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 
United States Code that specifically addresses protection for General 
Services Administration personnel. This omission is a problem we must 
correct.
  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 
activities 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.
  While CBS may not have taken part in the creation of the memo in 
question, and indeed I think I join all of us Americans 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.
  I draw an analogy in distinguishing between murder and negligent 
homicide. Those are crimes. Murder is intentional and negligent 
homicide is

[[Page S9816]]

not, but in both crimes someone has been 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 nevertheless.
  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 table television and talk radio 
persuasions. Rather, it is CBS which has proven itself to be even less 
than second-class journalism.

  I note that numerous pundits have been discussing recently 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.
  It can be difficult to communicate information without also conveying 
one's personal conviction on a matter. However, in a free society such 
as ours, the news media has a responsibility to work to be fair and 
balanced and to tell both sides of the story without letting a 
journalistic spin cloud their judgment.
  Television, print, and the Internet are a powerful media. They shape 
our lives. They provide some part of the education of our children, 
whether we like it or not. 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 of why journalists must hold themselves to the highest 
of standards. People can then synthesize information for themselves.
  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 documents 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. I cannot imagine anyone not supporting such a piece of 
legislation.

                               Exhibit I

       There's no stand-alone federal offense for forging 
     government documents.
       The criminal penalties for the forgery would depend upon 
     the circumstances, the context, basically the underlying 
     facts of the matter--what type of document, for what purpose, 
     what was done with it, what was intended--a lot of various 
     factors that would influence the decision about how it would 
     be charged and hence what the penalties would be.
       There is no stand-alone forgery of government documents 
     offense. It depends on the context of the matter.

  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2855

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

     SECTION 1. FORGERY OF FEDERAL DOCUMENTS.

       (a) In General.--Chapter 25 of title 18, United States 
     Code, is amended by adding at the end the following:

     ``Sec. 515. Federal records, documents, and writings, 
       generally

       ``Any person who--
       ``(1) falsely makes, alters, forges, or counterfeits any 
     Federal record, Federal document, Federal writing, or record, 
     document, or writing characterizing, or purporting to 
     characterize, official Federal activity, service, contract, 
     obligation, duty, property, or chose;
       ``(2) utters or publishes as true, or possesses with intent 
     to utter or publish as true, any record, document, or writing 
     described in paragraph (1), knowing, or negligently failing 
     to know, that such record, document, or writing has not been 
     verified, has been inconclusively verified, is unable to be 
     verified, or is false, altered, forged, or counterfeited;
       ``(3) transmits to, or presents at any office, or to any 
     officer, of the United States, any record, document, or 
     writing described in paragraph (1), knowing, or negligently 
     failing to know, that such record, document, or writing has 
     not been verified, has been inconclusively verified, is 
     unable to be verified, or is false, altered, forged, or 
     counterfeited;
       ``(4) attempts, or conspires to commit, any of the acts 
     described in paragraphs (1) through (3); or
       ``(5) while outside of the United States, engages in any of 
     the acts described in paragraphs (1) through (3), shall be 
     fined under this title, imprisoned not more than 10 years, or 
     both.''.
       (b) Clerical Amendment.--The table of contents for chapter 
     25 of title 18, United States Code, is amended by inserting 
     after the item relating to section 514 the following:

``515. Federal records, documents, and writings, generally.''.
                                 ______