As a small-town lawyer, handling a variety of cases, I have been trying to deal wtih this problem for a long time. In my years in the Oregon legislature, I labored on this issue, at that time seeking to do so by an interstate compact. The further I explored each solution, the more I became convinced that while answering some questions, new ones were inevitably created.

It is a complex and delicate question of conflict of laws. What court should have jurisdiction? Should the Federal Government involve itself in a situation in which a parent is punished for moving his own child without harm, across a State line? How far should Government go into social policy? Should Government intervene in a private marital problem? When does it become a public problem? Should the FBI be injected into it at the expense perhaps of its other functions? Should we break with a statutory exemption explicitly included in both the Lindbergh Act of 1932 and its 1934 amendment exempting parents from the definition of "kidnaping"? Are we truly protecting the best interest of the child by tearing him away from a parent with whom he may have lived for several years because that parent violated a State court decree? What are the best interests of a child?

Now these are difficult questions. I have been involved as a lawyer, representing both snatchers and snatchees. I think we ought to realize that in each case my client believed right and justice and the best interests of the child were on their side. I have even been peripherally involved in a case of this sort that ended up in Jonestown in Guyana. And, of course, the answer to that problem was clear. Initially, it was much more clouded.

I have long believed that social problems should be handled at the lowest appropriate level of government. Though I would prefer to have this question addressed at the State level, it has not been. For this to happen would require all 50 States to subscribe to the interstate compact, both in letter and spirit, and make it impossible for any parent to find a safe haven to harbor a child taken contrary to a court order across a State line. I don't believe we can except this level of cooperation. In one sense, we have an interstate compact already called the Constitution of the United States. We have an interstate compact commission called the Congress of the United States, and we can handle this problem here.

We must not fear to use the Federal Government at an appropriate level when necessary. Requiring full faith and credit be given to an extant State court decree before the Federal law swings into effect, saves this measure from Federal imbalance in a State problem. By reserving the Federal role to the creation of a Federal Parent Locator Service and FBI investigation after a sufficient lapse of time, we hold Federal interference to the minimum. At the same time, we must be careful not to compound the problems that already exist. Traps may be and probably inadvertently are built into this bill.

In that connection, I would like to suggest that your staff might want to look at page 5, in line 5, and consider striking the word "any," and replacing it with the words, "the first." Similarly, on page 8, in line 5, add the word "first," between the word "has" at the end of 5, and "made," at the start of line 6.

Now I am not sure that we can solve all these problems. Only Solomon completely succeeded in settling a custody dispute between two

mothers. We have neither the vision, the wisdom of Solomon, nor have we the inclination to enact any such dramatic and drastic solution. But our fear of failure must not deter our effort to succeed. With this bill, I believe we have a means by which to maintain the dynamic Federal equilibrium without severe intrusion or imbalance at any level. I thank you for letting me express my views to you.

Senator CRANSTON. Thank you very much. We appreciate your interest, your testimony, and look forward to working with you on this. Thank you very much.

Mr. DUNCAN. Thank you.

Senator CRANSTON. We will now proceed to our first panel. We will break it up into two parts, calling first the representatives of the administration, Paul Michel, Deputy Attorney General, Department of Justice Lee Colwell, Executive Assistant Director, FBI; Louis B. Hays, Deputy Director, Office of Child Support Enforcement, Department of HEW; Larry Lippe, Criminal Division, Department of Justice; and W. D. Gow, FBI, section chief.

PANEL OF LAW ENFORCEMENT OFFICIALS:

STATEMENTS OF PAUL R. MICHEL, ACTING DEPUTY ATTORNEY GENERAL, DEPARTMENT OF JUSTICE; LARRY LIPPE, DOJ; LEE COLWELL, EXECUTIVE ASSISTANT DIRECTOR, FBI; W. D. GOW, FBI; AND LOUIS B. HAYS, DEPUTY DIRECTOR, OFFICE OF CHILD SUPPORT ENFORCEMENT, HEW

but

Senator CRANSTON. We welcome you and appreciate your presence. You may proceed in whatever order you choose among yourselves. Mr. MICHEL. Good morning, Mr. Chairman. I am Paul Michel. I am the Acting Deputy Attorney General. Not that it is important, the witness list inadvertently promoted me to being the permanent Deputy Attorney General. As the chairman knows, the nomination of Judge Charles Renfrew is before the Judiciary Committee now. He will shortly, I trust, become the Deputy Attorney General.

On my right is Mr. Lee Colwell, who is Executive Assistant Director of the FBI. Mr. Colwell's responsibilities particularly include the Criminal Investigative Division, which is the portion of the FBI that would be affected by the bill before the committee.

To my far left is Mr. Larry Lippe of the Criminal Division of the Department of Justice, who has studied the problems related to criminalizing child snatching at the Federal level and may be of assistance to the committee, particularly with regard to specific problems that would confront prosecutors and questions which the committee may have.

If I might, just as a brief overview, Mr. Chairman, I would like to note that I have a prepared statement. I would ask that it be incorporated into the record.

Senator CRANSTON. It will be inserted into the record at the conclusion of the panel's oral presentation.

Mr. MICHEL. Thank you.

I would prefer not to read it in the interest of economy of time on the part of the committee.

Let me simply say that the Justice Department has the same concern that everyone in this room has for the welfare of children. The problem is obviously a real problem. We do not in any way question that. Second, the FBI and the prosecutors in the Justice Department will, of course, follow the will of Congress and fully and faithfully execute its decisions whatever they may be.

Third, I would like to suggest that historically the problem of child snatching has been addressed primarily at the State level. The issue essentially before the committee is in what way and how much the Federal Government seeks to augment and strengthen the total efforts addressed at the problem.

The bill, of course, seeks to do it in essentially two different ways: first, civilly, and second, criminally.

It seems to me that the civil provisions, both making nationwide the uniform act, to have all States honor proper custody decrees and visitation rulings, are entirely appropriate.

We have done a study of its constitutionality and have determined that under the commerce clause, it would be constitutionally permissible. Therefore, we fully support this provision of the bill.

With regard to the expanded duties of the Federal Locator Service as provided for in this bill, of course, Mr. Hays, on my left, is, if you will, the best witness. All that I would like to say with regard to the expansion of the locator service's authority and mission would be that, from what we know, it seems like it might have great promise and great utility and that it might be a very good additional solution to the problem.

I would like to say that its exact utility is difficult, I think, for anyone to estimate. It may be that Congress would want to have a trial period under an expanded mission for the locator service, and then, after that trial period, and based on the results of it, to look at the issue of Federal criminalization.

The Justice Department is strongly opposed to the Congress at this time enacting criminal statutes along the lines suggested in the bill. The more detailed reasons, of course, are in my statement, but they essentially boil down, Mr. Chairman, to three considerations.

The first is essentially that by the nature of the criminal justice process and by the training and capacity of prosecutors and investigators, we are concerned that we may not be in a very good position to be of appropriate, useful assistance. We are not trained in psychology, sociology, domestic relations disputes or family law. We are trained and experienced at collecting evidence of serious criminal violations and prosecuting people in the Federal system ordinarily with the intent and purpose of having them incarcerated in order to deter others and to safeguard society from threats which are perceived to be threats to the entire society, as opposed to primarily private matters between individual members of society. So, there is a real question whether we are trained and equipped to really make a great contribution to this problem.

Second, there is a danger, in my view, that our involvement might even be counterproductive and make the problem worse. Certainly, as you, Mr. Chairman, and Senator Mathias before you highlighted, the primary focus for everyone, including we prosecutors and investiga

tors, has to be on the best sense of the welfare of the child himself. The dangers are not insubstantial if we have investigative involvement by the FBI.

First, there is the danger of confrontations and possible violence which could, in certain circumstances, constitute a real danger to the child himself. Even if the danger does not ripen, it seems to me that it is undesirable to have a child confronted with the circumstances where the parent who has custody, in fact, is arrested, possibly, in his sight, searched, and hauled off by FBI agents.

Second, the investigative process, of course, is aimed primarily at collecting evidence. In circumstances like these the evidence collection would be through interrogation of knowledgable witnesses who would almost unavoidably include both parents and the child himself or herself. Again, the prospect of the parent and the child being interrogated by FBI agents does not seem in keeping with the intent of everyone in this room and their concern for the welfare of the child. Third, there is the further prospect, when we get to the prosecutive stage of again the parent and again the child being questioned by prosecutors in the pretrail preparation phase and the further prospect still less seemly and attractive of a child being a witness in a criminal prosecution in the Federal court.

The third problem from the perspective of the Justice Department with regard to criminalizing this offense, and as I say, the civil Federal involvement seems entirely appropriate and useful and worth a try. But just limiting the attention to making it a criminal offense, the third problem is that it would create an enormous diversion of very scarce and precious resources.

Of course, the criminal justice system has basically four key players, the investigator, the prosecutor, the judge and the jailer. All of these resources are stretched very tightly, as you know, Mr. Chairman, on matters which the Attorney General has made top Federal priority: foreign counterintelligence, organized crime, white-collar crime and governmental corruption.

We are now in a circumstance where the FBI through enormous reorganization, retraining, and focus is involved and productively involved in a series of present and contemplated undercover operations of enormous potential and importance, is involved in very difficult white-collar crime investigations of various kinds. GSA fraud is but one example. Those kinds of investigations, as you know, are enormously time consuming of the precious and limited resources we have. Indeed, the resources are not only limited, but over recent years have been shrinking. There are fewer FBI agents today than there were 3 or 4 years ago.

So, when at a time when we have fewer FBI agents and more difficult and time-consuming work, we are concerned that an additional 5,000 or 10,000 cases or whatever it would be, and to my knowledge, there is no good estimate of the number of investigations the FBI would be pushed into were S. 105 to be enacted as it is currently drafted. But, in any event, and in short, there is a substantial danger of resources being diverted.

It seems to me that, if I can make a final point, that the problem of child snatching is not one, but several problems or many problems.

Where the circumstances basically involves parents who are both seeking custody or enforcement of custody or visitation rights and there is no circumstance of basic criminality or acute physical danger, that is one matter and that is a circumstance where the FBI and the prosecutors and the rest of the criminal justice apparatus, in my opinion, ought not to be drawn into it. However, where there is criminality, where there are State criminal violations, particularly where they are State felonies and where, in addition, there is clear danger to the safety of the child, the FBI, and the rest of the criminal justice, the Federal apparatus, can become involved and do become involved. That is possible under existing laws and in no way would be assisted by the passage of the criminal portion of this bill.

Finally, it was observed by some of the earlier witnesses that the involvement of the FBI was sought to be limited by the 60-day lagtime before they would become involved. I might say that there is also perspective of the courts and the prosecutors. Our anticipation is that there would be very few cases actually brought to trial in the Federal criminal courts for violation of this criminal offense if it is enacted. The question has to be asked, if there are few if any prosecutions, how much deterrence is there by making it a Federal crime. It is also a little bit anomalous, I think, to have a Federal crime which can be wiped away by an act after the commission of the crime.

The inclusion of the absolute defense of returning the child almost supports the inference that one might draw reading the bill, that it is not intended as a vehicle for prosecution or for sentencing and that the main hope is to have the benefit at the investigative stage and not the prosecutive stage of the great effectiveness of the FBI.

And then we come to whether the timelag provision focuses and limits that involvement sufficiently. It seems to me that where there is a clear and present danger, if you will, the current circumstance, under the unlawful flight to avoid the prosecution act, which, under our current policies is triggered only where there is danger, I think, is an adequate vehicle for FBI involvement in those relatively small number of cases where aid is acutely needed.

I think that, in sum, with the uncertainly of the benefits of making it a Federal crime, that possibly it would actually be counterproductive to the best interest, particularly from a psychological standpoint, of the child and, perhaps, also the parents.

Third, with the unknown and unascertainable but troubling diversion of limited resources, particularly of the FBI, that Congress should give the civil provisions of this bill, and whatever form they might finally be enacted, a chance to work before deciding the issue instead of in addition to making it a Federal crime.

Mr. Chairman, that is the sum of my informal remarks. Perhaps, rather than go into the details of specific prosecutorial problems, you might hear from Mr. Colwell, with his perspective as a manager of FBI resources and then, Mr. Hays, and then perhaps questions. Thank you very much.

Senator CRANSTON. Fine. Thank you very much.

Mr. MICHEL. Thank you, Senator.

Senator CRANSTON. Thank you. We will now turn to Mr. Colwell. Mr. Colwell.