AM N E S T Y

D 'M E N T S

“ t t

OCT 41974

T l- l - H E A R IN G S

K A N S A S STATS U N IV E R S IT Y ___

BEF ORE TH E

SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES, 

AND THE ADMINISTRATION OF JUST ICE

OF THE

A llbO O b b 4 0 0 3

COMMITTEE ON THE JUDICIARY

HOUSE OF REP RESEN TATIV ES

NIN ETY-THIR D CONGRESS

SECOND SESSION

ON

H.R . 236, H .R. 674, H.R. 2167, H.R. 3100, H.R. 5195, 

H.R . 10979, H.R. 10980, H.R. 13001, H. Con. R es. 144, 

an d H. Con. Res. 385

REL ATING TO AMNESTY

MARCH 8, 11, AND 13, 1074

Serial No. 35

Printed for the use of the Committee ou the Judiciary

A M N E S T Y

H E A R IN G S

BEF ORE THE

SUBCOMMITTEE ON COURTS, CIV IL LIBERTIES, 

AND THE ADMINISTRATION OF JUSTICE

OF TH E

COMMITTEE ON THE JUD ICIARY 

HOUSE OF REP RESEN TATIV ES

NIN ETY-THIR D CONGRESS 

SECOND SESSION

H .R . 236, H .R . 674, H .R . 2167, H.R . 3100, H .R . 5195, 

H .R 10979, H.R . 10980, H .R . 13001, H. Co n. Res . 144, 

and H. Co n. Res . 385

REL ATING TO AMNESTY

MA RCH 8, 11, AND 13, 1974

Serial No. 33

Printed for the use of the Committee on the Judiciary

31-658

U.S, GO VE RN ME NT PR IN TING OF FICE 

WA SHING TON : 1074
CO MMIT TEE ON TH E JU D IC IA R Y

PETE R W. RO DI NO , JR., Ne w Je rsey , C h a ir m a n

HAR OLD D. DO NO HU E, M as sa ch us etts 

JA CK BR OOKS , Te xa s 

R O BER T W. K A ST E N M E IE R , Wisc on sin 

DON EDW AR DS, Cal ifor nia 

W IL LIA M L. H UNGAT E, Miss ou ri 

JO HN CO NYE RS, J r., Mich igan 

JO SH U A E IL B E R G , Pen nsy lv an ia 

JE RO M E R. W A LD IE , Cal ifor nia 

W A L TE R FL O W ER S, Al ab am a 

JA M ES It. MA NN , So uth Ca ro lin a 

P A U L S. SA R BA N ES, M arylan d 

JO HN F. SIE B ER LIN G , Ohio 

GEORGE E. DANIE LS ON , Cal ifor nia 

R O BER T F. DRIN AN , M as sa ch us etts 

C H A R LE S B. RANGEL, New Yo rk 

B A R B A R A JO RD AN , Te xa s 

R A Y TH ORN TO N, Ar ka ns as 

E L IZ A B E T H HOLT ZM AN , New Yo rk 

W A YN E OW EN S, Ut ah 

EDW AR D M EZVIN SK Y, Iowa

EDW AR D HUTC H IN SO N. Mich iga n 

R O BERT M cC LORY, Illin oi s 

H EN RY P. SM IT H II I. New Yo rk 

C H A R LE S W. SA NDM AN . J r., New Je rsey 

TOM R A IL SB A C K , Illin oi s 

C H A R LE S E. W IG GIN S. Ca lif or ni a 

D A VID W. DENNIS . In dian a 

HAM IL TO N FIS H . J r., New Yo rk 

W IL E Y M AY NE. Iowa 

LA W R EN CE J. HO GA N. Maryla nd 

M. C A LD W E L L B U TLE R , Vir gi nia 

W IL LI AM S. CO HE N, Ma ine 

TR E N T LO TT , M iss iss ippi 

HAR OLD V. FR O E II LIC H , Wisc onsin 

CARLO S J. M OO RH EA D. Ca lif or ni a 

JO SE PH J. M A R A ZIT I, New Je rsey 

D E L B E R T L. LA TT A , Ohio

J erom e M. Ze ip m a n, G e n e ra l C o u n se l

Gar ne r J. Cl in e, A s s o c ia te G e n e ra l C o unsel

Her be rt F u c h s, C o u n se l

H er be rt E. Hoffm an, C o u n se l

Wil lia m P. Sh a t t u c k, C o u n se l

H. C h r is to ph er N ol de , C o u n se l

A la n A. P ar ker, C o u n se l

Jam es F. F alc o, C o unsel

Mau ri ce A. B ar bo za, C o u n se l

F r an k lin G. P o l k, C o u n se l

Roger A. P au le y, C o u n se l

T h om as E. Mooney , C o u n se l

P et er T . Str aub, C o u n se l

Mic h ael W. B lo m m er , C o u n se l

A le xa nder B . Co o k, C o u n se l

Co n stantin e J. Ge k a s , A s s o c ia te C o u n se l

Sub co mm itte e on Cou rt s, Civ il Lib er ties, an d th e A dm in istr at io n of

Jus ti ce

R O BER T W . K A STE N M E IE R . W isc on sin . C h a ir m a n

GEORGE E. DANIE LS O N , Cal if or nia 

R O B E R T F. DR IN AN , M as sa ch us etts 

W A YN E OW EN S, Ut ah

EDW AR D M EZVIN SK Y, Iowa

TOM R A IL SB A C K , Il lin oi s

H ENRY P. SM IT H II I, Ne w Yo rk 

C H A R LE S W. SA NDM AN , Jr., New Jersey 

W IL LIA M S. CO HEN , Ma ine

Her be rt F u c h s, C o u n se l

Wil lia m P. Dix o n, C o u n se l

B ru ce A. L eh m an, C o u n se l

T h om as E. Mooney , A s s o c ia te C o unsel

(II)
C O N T E N T S

Text of— Page

H.R. 236_________________ 2

II. R. 674_____________________________________________________ 6

II. R. 2167________________________________ 

II. R. 3100_____________ 8

H.R. 5195_______________________________________ 

II.R . 10979_____________________________________________ . . 15-

II. R. 10980_______________________________________________ 18

II.It. 13001___________________________________________________ 19

H. Con. Res. 144______________________________________________ 21

II. Con. Res. 385______________________________________________ 22'

Testimony of—

Abzug, Hon. Bella, a Representative in Congress from the State of

New York________________________________________________ 594

Armstrong, Hon. O. K., in behalf of Veterans of World War I ______ 305

Barger, Rev. Robert New ton__________________________________ 313

Benade, Lt. Gen., Leo E., Deputy Assistant Secretary of Defense for

Military Personnel Policy; accompanied by Col. Victor A. DeFiori,

Office of Secretary of Defense for Military Personnel Policy_____ 533

Bowles, Glenn, Manager of Operations, Selective Service System___ 157

Brown, Ronald II., director, Washington Bureau, National Urban

League--------------------------------------------------------------------- ------- 410

Cary, Dr. W. Sterling, president, Natio nal Council of Churches of

Christ in the U.S. A.; accompanied by Rev. Richard Killmer, 

Director of Special Ministry, Vietnam Generation, member, National 

Council of Churches sta ff; and E. William D. Galvin, Jr., Emergency 

Ministry on Conscience and War, United Presbyterian Church___ 380

Cavin, H. Lynn, immediate past national commander, Marine Corps

League----------------------------------------------------------------------------- 394

Charles, Hopkins, D., Dep uty General Counsel, Selective Service

System___________________________________________________ 157

Credle, James, Clergy and Laity Concerned_____________________ 279

Damato, Edward, natio nal coordinator, Vietnam Veterans Against the

War, Chicago, Ill__________________________________________ 471

Darling, E. Fred, executive coordinator, Military and Veterans Affairs,

Non-Commissioned Officers Association of the U.S.A.; accompanied 

by II. Lynn Cavin, immediate past national commander, Marine 

Corps League_____________________________________________ 394

DeFiori, Col., Victor A., Office of Secretary of Defense for Military 

. Personnel Policy, Departm ent of Defense_____________________ 533

Dellums, Hon. Ronald V., a Representative in Congress from the State 

of Califo rnia________________________________________ 559

Ensign, Tod, counsel for Lewis Simon__________________________ 401

Freeman, Ilarro p A., Friends Committee on National Legislation;

accompanied by Raoul Kulberg _____________________________ 430

Froehlke, Hon. Robert F., president of the Sentry Corp., and former

Secretary of Defense_______________________________________ 371

Galvin, E. William D., Jr., Emergency Minstry on Conscience and

War, United Presbyterian Chu rch___________________________ 380

Gruening, Hon. Ernest, former U.S. Senator from th e S tate of Alaska . 216 

Ilehir, Rev. J. Bryan, Director, Division of Justice an d Peace, United

States Catholic Conference__________________________________ 168

Hoover, Warren, Church of th e Brethre n_______________________ 480

Jones, F. P., Colonel USA (retired), director, National Security and

Foreign Affairs, Veterans of the Foreign Wars of the U nited S tates. 267 

Killmer, Rev. Richard, Director of Special Ministry, Vietnam Generation, Member, Natio nal Council of Churches Staff______________ 380

(ixi)
IV

T es tim ony of— Con tinu ed

Koch, lion. Edward I., a Representative in Congress from the State P»ee 

of New York_____________________________________________ 603

Kulberg, Raoul_____________________________________________ 430

Levine, Ms. Jacqueline, co-chairman, Governing Council, American

Jewish Congress___________________________________________ 201

Morse, Esq., Walter II., General Counsel, Selective Service System;

accompanied by Glenn Bowles, Manager of Operations: Hopkins,

Charles, Deputy General Counsel; and S. R. Shaw, L and L Officer. 157

Mott, Jeremy, Midwest secretary, the Central Committee for Conscientious Objectors________________________________________ 239

Mullen, Mrs. Peg, State chairman, Iowa Gold Sta r Families; accompanied by Rev. John Smith, professor of history, St. Ambrose College, Davenport, Iowa______________________________________ 527

Musil, Robert K., Associate Secretary, the Central Comm ittee for Conscientious Objectors; accompanied by Jeremy Mott, Midwest Secreta ry _____________________________________________________ 239

Norton, Jerry W., Young Americans for Freedom.,_______________ 415

O’Neil, James F., past n ational commander, the American Legion; accompanied by Herald E. Stringer, Director, National Legislative 

Commission; and James R. Wilson, Director, National Security 

Commission___________________ -------- -------------------------------- 224

Pearle, Lynn, Americans for Democratic Action__________________ 422

Poling, James N., on behalf of the Church of the Brethren, general

Board; accompanied by Ralph E. Smetzer, Church of the Brethren, 

and Warren Hoover_______________________________________ 4SO

Rau h, Esq., Joseph, Jr., vice chairman, Americans for Democratic Action; accompanied by Lynn Pearle------------------------------------------ 422

Rutherford, Ms. Sandra, Vancouver American Exsolve Association__ 471

Schardt, Arlie, associate director, American Civil Liberties Union, and

co-author, Amnesty? The Unsettled Question of Vietnam__________ 38

Schwarzschild, Henry, Director, Project on Amnesty, American Civil 

Liberties Union Foun datio n; accompanied by Arlie Schardt, Associate Director, ACLU, and co-author, Amnesty? The Unsettled

Question of Vietnam________________________________________ 38

Shaw, S. R., L and L Officer, Selective Service System____________ 157

Siegel, Larry, Legislative Assistant, on behalf of Hon. Howard W.

Robison, a Representative in Congress from th e State of New York. 617

Simon, Abe, on behalf of Lewis Simon; accompanied by Tod Ensign,

counsel for Lewis Simon____________________________________ 401

Simon, Mrs. Patricia, on behalf of Gold S tar Families for Am nesty .. 309

Smetzer, Ralph E., Church of th e Brethren_____________________ 480

Smith, Rev. John, professor of history, St. Ambrose College, Dave nport, Iowa________________________________________________ 527

Spencer, Wayne, Clergy and Laity Concerned___________________ 279

Stringer, Herald E., Director, National Legislative Commission, the

American Legion__________________________________________ 223

Struve, James, representing the Wisconsin Amnesty Project; accompanied by Edward Damato, natio nal coordinator, Vietnam Veterans 

Against the War, Chicago, Ill., and Sandra Rutherford, Vancouver 

American Exsolve Association_______________________________ 471

Taft, Hon. Robert, Jr., a U.S. Senator from the State of Ohio______ 337

Ulman, Hon. Leon, Deputy Assistant Attorney General; accompanied

by Rob ert W. Vayda, Criminal Division, Departme nt of Jus tice. _ 29

Vayda, Robert W., Criminal Division, Department of Ju stice______ 29

Wells, Rev. John, Major USAF (retired), atto rney, former special

consultant, U.S. Department of Defense 1964-1969, SANE--------- 210

Wilson, James R., Director, National Security Commission, The 

American Legion__________________________________________ 224

Young, Ms. Trudi, natio nal coordinator, Clergy and Laity Concerned; 

accompanied by James Credle and Wayne Spencer_____________ 279

Additional inform ation—

Adm inistrative Office of th e U.S. Courts:

Chart from 1973 Semi-Annual Report of the Director, showing 

disposition of defendan ts charge with Selective Service Act 

violations_____________________________________________ 350

Table, convictions for violations of Selective Service ac ts______ 348
V

Additional information—Continued 

Articles:

Amnesty: An Act of Grace, by Julian C. Carey, St. Louis Univer- Page 

sity Law Journal, vol. 17, No. 4, summ er 1973_______________ 56

Amnesty Must Not Be Forgotten, by Hon. Ronald V. Dellums,

Congressional Record, October 23, 1973___________________ 5G6

American Deserters and Draft Evaders: Exile, Punishment, or

Amnestyf by Douglas W. Jones and Davis L. Raish, the 

Harvard Intcrnation Law Review, vol. 13, No. 1, Winter 1970._ 81

Amnesty, Questions and A nswers, American Civil Liberties Union__ 562

Amnesty: The Record and the Need, by Joh n M. Swomley, Jr_____ 575

An Historical Justification and Legal Basis for Amnesty Today,

by Harrop A. Freeman, Law and Social Order, Arizona State

University Law Journal, vol. 1971, No. 3 ___________________ 438

Congressional Amnesty for IFar Resisters; Policy Considerat ions and

Constitutional Problems, by Louis Lusky, Vanderbilt Law Review, vol. 25, No. 3, April 1972___________________________ 126

The Truth About Deserters by Rob ert K. Musil, the Nation,

April 16, 1973_________________________________________ 331

Canadian Departm ent of Manpower and Immigration, table, U.S.

males age 15-25 granted landed imm igrant status in Canada______ 610

Comparison of amnesty bills, Congressional Research Service, Library of Congress, March 1, 1974_____________________________ 25

Dep artm ent of Defense:

Agency report, March 8, 1974_____________________________ 22

Benade, Lt. Gen., Leo E., Deputy Assistant Secretary of Defense :

Lette r, d ated November 2, 1973, to S enator Robert Taft, J r . . 346

Letter, date d March 1, 1974, to Hon. Robert W. Kastenmeier____________________________________________ 557

Niederlehner, L., acting General Counsel, letter, date d March 4,

1974, to Hon. Robert W. Kastenm eier____________________ 401

Table of Desertion Rate (Unauthorized Absence of 30 days or

more)________________________________________________ 541

Table of Absentee Incident Rate (Absentee Incidents of less th an

30 days)______________________________________________ 541

Table of conscientious objectors, sta tus of in-service applications for discharge or noncombatant service________________ 545

Dep artm ent of Justice:

Peterson, Hon. Henry E., Assistant Attorney General:

Lette r, dated November 9, 1973, to S enator Robert Taft, Jr. _ 344

Lette r, dated March 1, 1974, to Hon. Robert W. Kasten ­

meie r________________________,____________________ 36

Traylor, Esq. Lawrence M., Pardon Attorney, letter, dated

February 26, 1974, to Rev. W. Sterling C ary________________ 390

Friends Committee:

Statem ent of Some Quaker Bodies on Amnesty_______________ 433

AFSC Policy Statem ent on Amnesty_______________________ 433

Philadelphia Yearly Meeting of the Religious Society of Friends

Introduction __________________________________________ 434

Southeastern Yearly Meeting of Friends____________________ 435

New York Yearly Meeting of th e Religious Society of F rien ds ._ 435

New England Yearly Meeting of Friends____________________ 435

Baltimore Yearly Meeting of the Religous Society of F rien ds__ 436

Western Yearly Meeting of Friends Church_________________ 436

Wilmington (Ohio) Yearly Meeting_________________________ 437

Kastenmeier, Hon. Robert W., chairman, Subcommittee on Courts,

Civil Liberties, and the Administration of Justice:

Lette r, dated February 15, 1974, to Hon. Henry E. Peterson, Assistant Attorney General, Dep artm ent of Justice___________ 37

Letter, dated February 20, 1974, to Hon. Melvin It. Laird____ 339

Letter, date d February 20, 1974, to lio n. James R. Schlesinger,

Secretary of Defense___________________________________ 558

Letter, dated February 28, 1974, to Hon. James It. Schlesinger,

Secretary of Defense___________________________________ 339

Laird. Hon. Melvin It., letter, dated February 22, 1974, to Hon.

Rob ert W. Kastenmeier, enclosing copy of letter to Commander 

Ray It. Sodcn, Veterans of Foreign Wars, d ated J anu ary 28, 197 4.. 339
VI

Addit ional information—Cont inued 

Material subm itted for the record:

Statem ent: “The Only True Honor,” by Louise Ransom , a Gold Page 

Sta r Mother and member of Americans for Amnesty_______ 621

Statement: “ A Case for Amnesty,” by th e Amnesty Committee of

the Center for the Pursuit of Peace, Omaha, Ne br__________ 622

Stateme nt by Mr. Ronald Freund, Midwest regional coordinator,

Clergy and Laity Concerned____________________________ 626

Statement by Robert P. Chenoweth, Berkeley, Calif., a former

prisoner of war for 5 years______________________________ 626

Statem ent by the Rig ht Reverend Paul Moore, Jr., bishop, the

Diocese of New York of the Pro testan t Episcopal Church___ 627

Statem ent of Roger Neville Williams, a dra ft resister who lived

in exile for 4 years_____________________________________ 628

Statem ent of Wesley Sizemore, American exile who has lived in

Canada and Europe for over 5 ye ars______________________ 630

Mrs. Eliza beth Boardman, Acton, Mass., mother of a war resister

who was imprisoned for 19 months______________________ 631

Kathleen A. Berglund, wife of a draft resister who served 9%

months in p rison______________________________________ 632

Statement on Amnesty, adopted August 16, 1973, by the Priests

Senate of the Archdiocese of St. Paul, Minn_______________ 634

Statement on Amnesty, adopted by Minnesota Annual Conference

of th e United Methodist Church, June 14, 1973____________ 633

A Call for Reconciliation, approved by the Comm ittee on Inter ­

national Relations, Minnesota Council of Churches, December 14,

1972_______ ____ ______ _____ ________________________ 635

Statem ent of Philosophy adopted by Minnesota Clergy and Laymen Concerned Amnesty Campaign______________________ 636

Statement on Amnesty, adopted June 9, 1973, by the DEL State

Central Committee____________________________________ 637

Fact Sheet on Minnesotans Who Need Amnesty prepared by

Minnesota Clergy a nd Laity Concerned___________________ 637

Article, The Case for an Unconditional, Universal Amnesty for

Draft Evaders and, Armed Forces Deserters, by William D. Wick, 

reprinted from 22 Buffalo Law Review 311 (1972)__________ 639

Statem ent by John L. E vera rd of Cross Plains, Wis___________ 653

Statem ent of Joseph L. Sax, professor, University of Michigan

Law School___________________________________________ 654

Statem ent by Roger Baldwin, executive director emeritus,

American Civil Liberties Unio n__________________________ 655

Statem ent by Jack Calhoun, a U.S. Army deserter living in

Toronto, Ontario ___________________________________ 655

Statem ent by Attorney C urry First, attorney , reprinted from The

Milwaukee Jou rnal____________________________________ 658

Statement on Amnesty for U.S. War Resisters, adopted July 22,

1973, by Amnesty International. London__________________ 659

Statem ent and le tter from Lehigh-Pocono Committee of Concern,

Bethlehem, Pa ________________________________________ 660

Statem ent of the Union of American Hebrew Congregations 

on Amnesty, adopted November 1973 by the 52d general 

assembly______________________________________________ 661

Statem ent of Stamford-Greenwich Monthly Meeting of the

Religious Society of Friends, February 17, 1974____________ 661

Statem ent of the Coalition of American War Resisters in Canad a. 662 

Statem ent of Nicholas M. Carpinelli, entitled “A Young Man ’s

Case Against Military Indifference, Injustice, and Illegality”. 663

Statem ent Concerning Amnesty, adopted by th e Action for Social

Justice Committee of the Immaculate He art Com munity___ 666

Letter from the Social Action Secretariat, St. Louis Province,

Sisters of St. Joseph of Carondelet_______________________ 667

One Nation, Indivisible, The Legal and Historical Case for Amnesty,

a Fellowship reprint by Prof. Harrop Freeman_____________ 668

Amnesty, Why? For Whom?, by the War Resisters League_____ 679
V II

Additional information—Continued

M at er ia l su bm itte d for th e reco rd — Con tinu ed

Questions and Answeis on Amnesty, a list of am nesties in American history, 1795 to date, biblical materials and the case for 

amnesty, and resources for amnesty education, prepared by 

National Interreligious Service Board for Conscientious Page 

Objectors.................................................................... ........... ......... 695

Telegram of March 5, 1974, from Eugene Carson Blake, former

general secretary, World Council of Churche s______________ 704

Stateme nt of Nolle M. Reilly, Baltimore, Md________________ 704

Statem ent of the American Baptist Churches in th e . United

Sta tes ________________________________________________ 705

Statement and resolutions on amnesty of th e Joint Washington

Office for Social Concern________________________________ 705

Statem ent by Mrs. Kay Litchfield, Gold Star Mother, on the

subject of amn est y_____________________________________ 708

Resolution on amne sty adopted Jun e 1973, by the Unitaria n 

Universalist Association of Churches a nd Fellowships in North 

America______________________________________________ 710

Statem ent of Hamilton Gregory, chairman, American Friends

Service Committee, El Paso, 1’ex_________________________ 711

Stateme nt of Jewish Peace Fellowship, dated March 4, 1974,

submitted by Steven S. Schwarzschild____________________ 712

Statem ent of Kim McGee, Anchorage, Alaska_______________ 713

Resolution No. 2 adopted by the Natio nal Council, Reserve

Officers Association of the United States, on February 16, 1973_ 714

Statem ent of L. William Yolton, Cambridge, Mass., with sta tements about amnesty by the General Assemblies of the United 

Presbyterian Church in the United State s_________________ 714

Statement of National Assembly of Women Religious__________ 719

Amnesty statem ent by Bishop Thomas J. Gumbleton, Auxiliary

Bishop of Detroit______________________________________ 719

Statem ent of Dominic a nd Ursula Diliberto, Gold S tar Pa rents . _ 720

Reprin t: The Case for Amnesty, Ramsey Clark, Louise Ransom,

Carl Rogers and Americans for Amnesty__________________ 721

Letter and Resolution No. 9, adopted August 10, 1973, by the

Military Order of the World Wars_______________________ 736

Statem ent on Amnesty, by David Wesley Brown, Prisoner Visitation and Support Com mittee__________ _________ ________ 736

Committee statem ent on amnesty legislation; National Studen t 

Coordinating Committee for Freedom in Vietnam and Southeast Asia_____________________________________________ 744

Statem ent entitled: General Order No. 152—the General Amnesty by Morris Sherman_______________________________ 745

Statem ent by the National Council of Jewish Women_________ 746

Statem ent on Amnesty and attachm ent from the Liberty Lobby. _ 747

Lawyers Committe e on American Policy Towards Vietnam

Statem ent: The Case for Amn esty________________________ 751

Statem ent of U.S. National Stu den t Association—National

Campus Alliance for Amn esty___________________________ 756

Statement of Glenn It. Siegal, representing Vietnam Veterans for

a Ju st Peace__________________________________________ 758

Statem ent on Amnesty b y Gerard Ciarpelli__________________ 761

Statem ent entitled: A Catholic Worker on Amnesty, by Michael

De Gregory___________________________________________ 763

A Statem ent in Favor of Unconditional Amnesty, by Rev. John M.

Burgess, Roman Catholic Bishop of Massach usetts_________ 763

Testimony on Amnesty by William P. Thompson, S tated Clerk, on

behalf of the United Presbyterian Church in the United States. 764

A Proposal for Developing an Amnesty Review Procedure, by 

Rich ard J. Lorette, associate dean, School of Management,

State University of New York a t Bin gha mton______________ 767

A C hristian Declaration on Amnesty, Peace Section, Mennonite

Central Com mittee____________________________________ 769
V II I

Additional information— Continued

Material subm itted for the record—Continued

A preliminary statem ent on amnesty and race: Memorandum:

Race and the Military Services; and Troubled Peace—An 

Epilogue to Vietnam, subm itted by the American Civil Liber- Base 

ties Union Fou ndation_________________________________ 772

Letter and stat ement: Natio nal Commission for Reconciliation 

from Felix M. Putterm an, national executive director, Jewish 

War Veterans of the United Sta tes_______________________ 784

Amnesty Resolution by the Plym outh Congregational Church,

Minneapolis, Minn______________________________ _____ 785

State'ment on Amnesty, J. Stuz rt Inverst, La Jolla, Calif________ 785

Statement of Edward J. Damato, national coordinator, Vietnam

Veterans Against the War/Winter Soldier Organization, and 

position paper on amnesty______________________________ 788

Resolution by Veterans of World War I USA, Inc., board of 

adm inistratio n of the Departm ent of Oklahoma___________ 806

A Religious Cali for Amnesty by the Conference of Major Superiors of Men of the USA, Inc__________________________ 806

Statem ent on Amnesty from Fellowship of Reco nciliation_____ 808

Reconciliation and Amnesty, an address by Rev. Robert V. Moss,

president, United Church of Christ______________________ SOS

Testimony by the War Resisters League on Amnesty_________ 811

Statem ent of John F. Heilman, assistan t natio nal director of

legislation, Disabled American Veterans___________________ 812

Letter on amnesty submitted for the record by Joseph C. Jones,

Toronto, Ont., Can ada_________________________________ 814

Letter submitted for the record by Mr. and Mrs. Laurence J.

Leigh________________________________________________ 815

Statem ent submitted by Jim McClellan, Arlington, Va_______ 816

Statement by Robert D. Ford, Duncannon, Pa _______________ 817

A Statement on Amnesty, Center of Concern, Washington, D.C__ 817

Letter and excerpt from Congressional Record subm itted by

Donald L. Harlow, Director of Legislation, Air Force Sergeants 

Association___________________________________________ 819

Editorial from the Miami News submitted by Stanley M. Pred,

Miami, Fla___________________________________________ 820

Resolution on Amnesty, adopted by the executive committee,

Canadian Council of Churches__ ______ _________________ 821

Statem ent of John W. l’iercey, Vienna, V a .. i________________ 821

Statem ent of Gunnard Landers, Fall Creek, Wis_____________ 823

Statement of Charles T. Smit, Chicago, Ill__________________ 824

Statem ent on Amnesty, Women’s Internatio nal League for Peace

and Freedom_________________________________________ 825

Stateme nts adopted by the Brooklyn Diocesan Commission for

World Justice and Peace_______________________________ 825

Statement by Daniel J. Guilfoil, Madison, Wis_______________ 827

Statem ent by Edward Cuddy, chairman, Amnesty and Reconciliation of Western New York__________________________ 828

Statem ent by Jerel W. Olsen, coordinator, National Council for

Universal and Unconditional Amnesty____________________ 829

Let ter from Rev. Theodore M. Hesburgh, C.S.C., president,

University of Notre Dame______________________________ 832

Letter from the Rt. Rev. William Davidson, Bishop of Western

Kan sas______________________________________________ 833

Letter from John II. Burgess. Daytona Beach, Fl a___________ 834

Resolution of the Senate of Priests of the (Catholic) Presbytery

of St. Paul and Minneapolis, Minn.; with accompanying 

petitio n______________________________________________ 835

Letter from Norman W. Minard, president, Long Island Presbyterian Peace Fellowship________________________________ 836

Letter from Berge Avadanian, national commander AMVETS __ 836

Statem ent of Roney F. Hartley, national service and legislative

director, AMVETS (American Veterans of World War II,

Korea and Vietnam)___________________________________ 836

Letter frbm Charles L. Stewart, Gladstone, Mich____________ 837

Lett er from Zelia M. Jensen, Grandview, Te nn______________ 837
IX

Additional information—Continued

Material submitted for the record—Continued

Resolution: On Amnesty for War Resistance, the Village Independent Democrats, New York, N.Y _____________________ 83S

Letter from Thomas Harrington Cave, Virginia Beach, Va., submitted for the record by Congressman G. William W hitehurs t-_ 838

Statem ent adopted by Southern California Quarterly Meeting of

the Society of F riends__________________________________ 840

Letter and statements submitted by the Southern New England Conference Board of Church and Society _________________ 840

Resolution No. 55—Amnesty, adopted by the Deleg ite Assembly

of the Sisters of St. Joseph of Carondelet__________________ 844

Let ter from Michele C. Morley, Wayzata, Minn_____________ 844

Statement of Schenectady Area, Clergy and Laity Concerned 845

Statement of Ru th Deats, West Newton, Mass______________ 845

Statem ent of Doris Gordon an d Ja rre t Wollstein, Alexandria, V a.. 840 

Letter from Walter Adams, president, American Association of

University Professors__________________________________ 850

Editorial, Amnesty to Bind the Wound, the Boston Globe, submitted for the Record by Congressman Rob ert F. Drinan___ 851

Statem ent of the Fleet Reserve Association, presented by Robert W. Nolan, national executive secretary________________ • 851

Letter submitted for the Record by IL L. Kirk, Marquette, Mich. 853 

Statem ent of Ohio State Branch, Women’s Internation al League

for Peace and Freedom_________________________________ 853

The Amnesty Debate and the WWWIC Amnesty Proposal: Response to critics, Rob ert Pickus, president, World Without War

Council of the United Sta tes ____________________________ 854

Catholic Stateme nts on Amnesty, submitted by Edward McGowan, S.J., director, Project Reconcile__________________ 859

Letter from Loran T. Leritz, Rice Lake, Wis________________ 893

A Statement for Amnesty, Kenneth II. Burrows, Bettendorf,

Iowa_________________________________________________ 895

American Exiles in Canada: A Social and Psychological FollowUp; subm itted for the Record by Saul V. Levine, M.D.,

Toronto, Ont., Canad a_________________________________ 896

Letter from George F. Slicer, Hinsdale, N.H .; submitted for the

record by Congressman James C. Cleveland_______________ 904

Morrow, Mike, letter, dated February 28, 1968, to Mr. and Mrs.

John Morrow_____________________________________________ 311

Natio nal Council of Churches: Backgrounds: Other-th an-IIonorable Discharges—Problems, and 

Prospects for Change, released by Vietnam Era Veterans’ National Resource project, Emergency Ministries Concerning the 

War...................... ......... ................. ................................................ 290

Cary, Rev. W. Sterling:

Letter, February 13, 1974, to the President______________ 389

Letter, dated February 15, 1974, to Hon. William B. Saxbe,

Attorney General of the United State s________________ 390

Lette r, dated February 15, 1974, to Hon. James R. Schlesinger, Secretary of Defense__________________________ 390

Lette r, dated February 15, 1974, to Byron V. Pepitone,

Director, Selective Service Sy ste m.____ ______________ 390

Mailgram, dated December 13, 1973, to President Nixon, 

from W. Sterling Cary, president, Natio nal Council of 

Churches, the Bight Reverend Paul Moore, Jr., Episcopal 

Bishop of New York, William P. Thompson, Stated Clerk 

of the United Presbyterian Church in the United States,

Bishop John Wesley Lord, executive director, Bishops Call 

for Peace and Self Development of People, Washington,

D.C., Thomas J. Gumbleton, Auxiliary Bishop, Archdiocese of Detroit, and Louise Ran som ________________ 388

Mailgram, dated December 23, 1973, to President Nixon, 

from Robert V. Moss, president, U S Church of Christ,

George W. Webber, president, New York Theological

Seminary, and Louise R ansom_______________________ 389

Policy Statem ent on the Indochina War: Healing the Divisions of the Nation_________________________________ 3S4
X

Additional information— Continued

National Council of Chuches—Continued

National Interreligious Service Board: Pace Amnesty Fac t She et___________________________________ 609

Amnesty Information Service, a List of Amnesties in American history, 1795 to da te_____________________________ fill

Religious Statements on Amn esty________________________ 4S2

Newspaper articles:

New York Times:

About Those Exiles, by Edward I. Koch, November 27,

1971_________________________________________ 608

Amnesty for Draft Resisters Is Expected To Be Divisive 

Political Issue for Years, Forces Asking Pardons are 

Gathering S trength, Jan uar y 30, 1973_____________ 571

Vietnam Veterans are Critical of Discharges that

“Stigma tize” , October 19, 1973__________________ 569

A Welfare Mother, bv Kathleen A. Berglund, November

15, 1973______________________________________ 570

Fort Dix: Awaiting Trial, by Lew Simon, Feb ruary 7,

19 74 ..________ _____________ ____ ______ _____ 569

The Pardoning President, Feb ruary 13, 1974__________ 573

Recent Polls on Amnesty_____________________ 606

Washington Star-News:

Laird Airs Amnesty Plan Discussed During War,

Jan uar y 5, 1974_______________________________ 568

Non-Commissioned Officers Association of the U.S.A., position paper

on “Amnesty” ____________________________________________ 396

Prepared stateme nts:

Barger, Rev. Rob ert New ton______________________________ 314

Credle, James, Clergy and Laity Concerned___________________ 279

Dellums, Hon. Ronald V__________________________________ 559

Freeman, H arrop A ______________________________________ 430

Gruening, Ernest___________ 218 Hehir, Rev. J. Br yan____________________________________ 175

Jones, Col. F. P__________________________________________ 271

Koch, Hon. Edward I _____________________________________ 603

Kulberg, Raoul__________________________________________ 464

Levine, Ms. Jacqueline____________________________________ 204

Morse, Esq., Walter I I____________________________________ 166

Mott, Jere my ___________________________________________ 253

Musil, Robert K_________________________________________ 243

Norton, Jerry W_________________________________________ 417

Poling, James N _________________________________________ 524

Rauh, Esq. Joseph, J r____________________________________ 422

Robison, Hon. Howard W_________________________________ 619

Schwarzschild, He nry ____________________________________ 42

Spencer, Way ne_________________________________________ 279

Struve, James___________________________________________ 476

Taft, lion . Robert, J r_____________________________________ 360

Young, Ms. Trud i________________________________________ 279

Report of the President’s Amnesty Board, August 3, 1951-........... 229

Resolutions:

Resolution on Amnesty, adopted by the governing council, American Jewish Congress, June 10, 1973________________________. 208

Resolution on draft evaders and/or deserters, adopted by the

American Legion, August 21-23, 1973_____________________ 224

Resolution No. 459. Oppose Amnesty, adopted by the Veterans of

Foreign Wars, August 17-24, 1973________________________ 274

SANE policy on amnestv, adopted by the National Board of SANE,

June 24, 1972______ ______ ____ ___________________________ 212

Selective Service System:

Morse, Esq., Walter IL, General Counsel, letter, dated February 26, 1974, to Rev. W. Sterling Cary___________________ 391

Complaints to U.S. Attorneys; Selective Service System prosecutions, etc., 1974-73__________________________________ 607

Live Male Births and Draft Reg istrants____________________ 607

Soden, Commander, Ray R., Veterans of Foreign Wars, letter, dated

Jan uary 7, 1974, to the Presiden t_____________________________ 275
XI

Additional information—Continued Paso

Statem ent on Amnesty, October 1973___________________________ 32s

Statem ent of Purpose, Wisconsin Amnesty Pro ject__________________ 478

Statem ent of the Church of the Brethren on Amnesty, Conference

Statem ent 1973_____________________________________________ 566 Stateme nts submitted for the record:

Bevill, lion. Tom., a Representative in Congress from the Sta te of

Alab ama _____________________________________________ 593

Corman, Hon. James C., a Represe ntative in Congress from the

State of California, x____________________________________ 589

Flynt, lion. John J., Jr., a Represe ntative in Congress from the

State of Georgia_______________________________________ 594

Hogan, Hon. Lawrence J., a Represe ntative in Congress from the

State of Maryla nd______________________________________ 588

Mitchell, Hon. Parren J., a Representative in Congress from the

State of Maryland ____________________________________ 615

Murtha, Hon. John P., a Represe ntative in Congress from the

State of Pennsylv ania ___________________________________ 590

Taft, Ron. Robert, Jr. :

Letter, date d October 24, 1973, to Hon. Robert IL Bork, Acting

Attorney General of the United Sta tes ____________________ 345

Lette r, date d October 24, 1973, to Hon. James R. Schlesinger,

Secretary of Defense___________________________________ 345

S. 2382, to provide persons who unlawfully failed to register for 

the draft, or who unlawfully avoided military service, with an 

opportu nity to earn immunity from prosecution and punishment for such offenses, and for o ther purposes____ _________ 352

Section-by-section analysis of “The Earned Imm unity Act of

1974“ __________________________ _____________________ 355

U.S. Catholic Conference:

A Historical Perspective on Selective Conscientious Objection, by 

LeRoy Walters, Journal of the American Academy of Religion, 

vol. XLI, No. 2, Ju ne 1973__________________ _x_________ 189

Declaration on Conscientious Objection and Selective Conscientious Objection, October 21, 1971________________________ 179

Resolution on Imperatives of Peace, Natio nal Conference of

Catholic Bishops, November 16, 1972_____________________ 185

Resolution on Southeast Asia, National Conference of Catholic

Bishops, November 1971________________________________ 187

The Catholic Conscientious Objector, October 15, 1969________ 182

White House:

O’Donnell, Terrece, staff assistan t to the President, letter, dated

December 18, 1973, to William Galvin____________________ 388

Nixon, Hon. Richard M., President, letter, dated Jan uary 23,

1974, to Commander Soden_____________________________ 275

Wisconsin Amnesty Project___________________________________ 478

Hearing dates—

March 8:

Armstrong, O. K ________________________________________ 305

Barger, Robert Newto n___________________________ 313

Bowles, Glenn___________________________________________ 157

Charles, Hopkins, D _____________________________________ 157

Credle, James___________________________________________ 279

Gruening, Er ne st________________________________________ 216

Hehir, J. Bryan _________________________________________ 168

Jones, F. P _____________________________________________ 267

Levine, Jac que line _______________________________________ 201

Morse, Walter H ________________________________________ 157

Mott, Jeremy___________________________________________ 239

Musil, Robert K _________________________________________ 239

O’Neil, James F _________________________________________ 224

• Schardt, Arlie ___________________________ 38

Schwarzschild, He nry ____________________________________ 38

Shaw, S. R ________ .____________________________________ 157

Simon, Patricia__________________________________________ 309

Spencer, Wayn e_________________________________________ 279

Stringer, Herald E _______________________________________ 223

Ulman, Leo n____________________________________________ 29

Vayda, Robert W________________________________________ 29.
XII

Hearing dates —Continued

March 8—Continued Page

Wells, J o h n .. _____________________________________________ 210

Wilson, James I t__________________________________________ 224

Young, Trudi_____________________________ »____________ 279

March 11:

Brown, Ronald II _______________________________________ 410

Cary, W. Sterling_______________________________________ 380

Cavin, II. Lynn_________________________________________ 394

Damato, Ed wa rd---------------------------•.______________________ 471

Darling, E. Fr ed _________________________________________ 394

Ensign, To dd___________________________________________ 401

Freeman, Harrop A .. ____________ 430

Froehlke, Rob ert F______________________________________ 371 Galvin, E. William I)., J r_________________________________ 380

Hoover, Wa rren_________________________________________ 480

Killmer, Ric hard___ _____________________________________ 380

Kulberg, Raoul_________________________________________ 430

Mullen, Peg____________________________________________ 527

Norton, Jer ry W________________________________________ 415

Pearle, Ly nn __________________________________ 422

Poling, James N _________________________________________ 480

Itauh, Joseph, J r__________ 422

Rutherford, Sa nd ra______________________________________ 471

Simon, Abe_____________________________________________ 401

Smetzer, Ralph E _______________________________________ 480

Smith, Jo hn ____________________________________________ 527

Struve, James___________________________________________ 471

Taft, Rob ert J r_________________________________________ 337

Marc h 13: 556

Abzug, Bella____________________________________________ 594

Benaae, Leo E __________________________________________ 533

DeFiori, Victor A________________________________________ 533

Dellums, Ronald V______________________________________ 556

Koch, Edward I _____________________________ 603

Siegel, Larry, on behalf of lion. Howard W. Robison__________ 617
A M N EST Y

FRID A Y , M A RCH 8, 19 74

H ouse of Representatives,

Subcommittee on Courts, Civil Liberties,

and the Administration of J ustice

of the Committee on the J udiciary,

Washing ton, D.G.

The subcommittee met, pursuant to notice, at 10:10 a.m., in room 

2141, Rayburn House Office Building, Hon. Robert M. Kastenmeier, 

chairman, presiding.

Present: Representatives Kastenmeier, Drinan, Mezvinsky, Railsback, and Smith.

Also present: William P. Dixon, Counsel; Bruce A. Lehman, Counsel ; and Thomas E. Mooney, Associate Counsel.

Mr. Kastenmeier. The subcommittee will come to order.

It has now been more than 1 year since the signing of the Paris 

agreements bringing the long, direct military involvement of the 

United States in Vietnam to an end. One year ago this month the last 

American prisoner of war was released from captivity and allowed to 

return home.

Now tha t some time has elapsed since the end of our country’s direct 

military involvement in the Vietnam conflict, it ought to be possible to 

examine rationally the question of whether or not amnesty should be 

granted to those who refused to serve.

The subcommittee has before it a number of measures providing for 

several different legislative approaches to the problem of amnesty. 

These measures raise a question of whether amnesty should be granted 

at all, and if granted, under what terms.

In addition to seeking answers to these basic questions, the subcommittee hopes to hear testimony which will help to define the legal authority of Congress to grant amnesty legislatively. We would also like 

to determine the administration’s position on the question. President 

Nixon stated in .January 1972, th at he would be liberal with amnesty 

once our troops and prisoners of war were out of Southeast Asia. However, in March 1973, the President stated tha t he could think of no 

greater insult to the memory of those who had fought and died in 

Vietnam than to grant amnesty to those who refused to serve. We 

would like to establish the administration position as of today, more 

than a year after the end of direct military involvement in the conflict.

In preparation for these hearings the subcommittee has attempted 

to obtain information which would define the scope of the problem. 

We wrote to the Department of Justice requesting data on the number 

of individuals who had been convicted, indicted or referred for prosecution under the Selective Service Act in the years between 1963 and 

(1)
2

1973. The De partm ent has resp onded with figures sho wing t ha t 9,167 

ind ivi duals have been convicted of dra ft law violations , and 206,775 

men have been refer red to various U.S . att orneys as dra ft law delinquent du rin g this period of time.

We requested sim ilar inf orma tio n from the Defense De partm ent 

rega rding militar y deserters. The De pa rtm en t respon ded th at from 

19(>3 t hrou gh 1973, alm ost 4,000 perso ns were pro sec uted fo r desertion , 

while over 28,000 dese rter s from tha t period currently remain a t large.

In addition , the Defense De pa rtm ent supplied us w ith figures showing th at 545.500 men received oth er than honor able discha rges from 

1903 throug h 1973. While not all of these other th an hon orab le dis ­

cha rges are wa r-related , all would come under the purview of the 

leg isla tion before the subcommittee.

'I'hese figures ind icate th at the question of amn esty is one affecting 

larg e numbers of Am ericans, and hopefully these heari ngs will pr ovide a comprehensiv e overview of the pro s and cons before the committee which will affect the lives of so man y.

Ou r comm ittee has be fore it 10 measures relatin g to amnesty. Eig ht 

o f these would g rant amn esty in one form or ano ther. Th e o ther measures do not have t he force of law, and if ado pte d, wou ld express the 

.sense of Congress th at no amne sty shou ld be gr anted .

Because these measure s differ in such gr ea t detail from one to 

anoth er, 1 rece ntly requ ested the Library of Congres s to pr ep are a 

com parison of the different amnesty bills. That com parison was 

rece ntly circulated to all members of the subcomm ittee. At this time , 

withou t objection. I will subm it the 10 bills, the Defense De partm ent 

rep ort on thr ee of the measures, and the ana lysis for inclusio n in the 

record.

[The documents ref erred to follow :]

[H .R . 230, 93d Cong., 1s t sess.]

A B IL L To ex on er at e an d to prov ide fo r a ge ne ral an d un co nd itio na l am ne st y fo r ce rtai n 

pe rs on s who ha ve vi ol ated or ar e all eg ed to ha ve vi ol at ed laws in th e co urse of pr ote st 

again st th e invo lvem en t of th e Uni ted S ta te s in In do ch in a, an d fo r oth er pu rpos es

Be it enacted by the Senate and House of R epresentative s of the United States

of Ameriea in Congress assembled, That this Act may be cited as the “War Resisters Exoneration Act of 1973’’.

FIN DING S AND DECLARATION

Sec. 2. (a) The Congress finds and declares th at a general and unconditional 

amnesty, with full restoration of all civil, political, property, and other righ ts is 

a necessary measure, after the cessation of United States military operations in 

Indochina, for the reconciliation and reinstateme nt of persons who have been 

prosecuted, or who may he subject to prosecution, for failing to comply with any 

requirement of, or relatin g to, service in the Armed Forces during tlie involvement of the United States in Indochina, or for engaging in any nonviolent activity 

or activ ity justified by deeply held moral or ethical belief in prote st of, or opposition to, the involvement of the United States in Indochina.

(b) The Congress furth er finds and declares that it is an immunity of citizens 

of the United States (within the meaning of section 1 of the fourteen th amendment to the Constitutio n of the United States) to enjoy the annulment of all 

legal disadvantag es tha t have been incurred or suffered by reason of opposition 

to the involvement of the United States in Indochina, to the greates t extent 

consistent with the preservation of life and property.
3

EF FECT OF GE NE RA L AM N ES TY

Sec. 3. The general amnesty granted by or under th is Act shall, with respect to 

any violation of law enum erated in section 4 or covered under section 6—

(1) restore to the grantee all civil, political, citizenship and property rights 

which have been or might be lost, suspended, or otherw ise limited as a 

consequence of such violation ;

(2) immunize the grantee from criminal prosecution for such violation;

(3) expunge all notation rela ting to such violation from the records of 

courts and law enforcement agenc ies;

(4) requ ire the granting of an honorable discharge to any person who 

received a discharge other tha n an honorable discharge from the Armed 

Forces if such violation was solely the cause, or a sub stan tial cause, of the 

granting of such other than honorable d isc harge; and

(5) nullify all other legal consequences of such violation.

AUT OM AT IC GE NE RA L A M N ESTY

Sec. 4. (a) Notwithstanding any other provision of law, general amnesty is 

hereby gran ted to any person for violation of one or more of the laws enumerated 

in this section, or regulations and policies promulgated pursua nt thereto, if such 

violation was committed between August 4, 1964, and the effective date of this 

section. Such amnesty is automatic, and no application to the Amnesty Commission or any other agency is necessary to effectuate it.

(b) General amnesty is granted for violations of any of the following law s:

(1) Section 12 of the Military Selective Service Act (50 App. U.S.C. 462) with 

respect to the following prohibited acts—

(A) evading or refusing registration, evading or refusing induction into 

the Armed Forces, or willfully failin g to perform any other duty under such 

Act, or conspiring to do so ;

(B) knowingly counseling, aiding, or abetting others to refuse or evade 

registratio n or service in the Armed Forces of the United States, or conspiring to do so ; or

(C) publicly and knowingly destroying or mutilating any reg istratio n or classification card issued or prescribed pursuant to such Act and knowingly 

violating or evading any of the provisions of such Act. or rules and regulations promulgated pursua nt thereto relating to the issuance, transfer, or 

possession of any registration or classification card.

(2) Section 882 of title 10, United States Code, which prohibits the soliciting 

or advising another, or a ttem ptin g to solicit or advise others, to desert the Armed 

Forces of the United States.

(3) Sections 885 and 886 of title 10, United States Code, which prohibit deserting or going absent without leave from the Armed Forces of the United States.

(4) Section 887 of title 10, United States Code, which prohibits missing the 

movement of a ship, aircra ft, or unit with which it is required in the course of 

duty to move.

(5) Section 88S of title 10, United States Code, which prohibits using contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of the 

Treasury, or the Governor or legislatu re of any State, terr itory, Commonwealth, 

or possession on which he is on duty or present while a commissioned officer in 

the United States Armed Forces.

(6) Section 1381 of title 18, United States Code, which prohibits the enticing 

or procuring, or conspiring or attempting to entice or procure any person in the 

Armed Forces of the United States, or who has been recruited for service therein, 

to desert therefrom, or aiding any such person in deserting, or in attempting to 

dese rt from such service; or harboring, concealing, protecting, or assisting any 

such person who may have deserted from such service, knowing him to have 

deserted therefrom, or refusing to give up and deliver such person on the demand 

of any officer authorized to receive him.

(7) Section 2387 of title 18, United States Code, which prohibits the advising, 

counseling, urging or in any manner causing or atte mpting to cause insubordination, disloyalty, mutiny, or refusal of duty by any member of the military or 

naval forces of the United States, with the inte nt to inte rfere with, impair, or 

influence the loyalty, morale, or discipline of the military or naval forces of the 

United States.
4

AMNESTY OOM M IS SIO N

Sec. 5. (a) There is established a commission to he known as the Amnesty 

Commission (hereinafter in this Act referred to as the “Commission”).

(b) The Commission shall he composed of live members, qualified to serve on 

the Commission by virtue of their education, training, or experience, as follows:

(1) One appointed by th e President.

(2) One appointed by the President pro tempore of the Senate.

(3) One appointed by the Speaker of the House of Representatives.

(4) One appointed by the minority leader of the Senate.

(5) ‘One appointed by the m inority leader of the House of Representatives. 

Individuals who are officers or employees of any government are not eligible for 

appointment to the Commission. A vacancy in the Commission shall be filled in the 

manner in which the original appointment was made.

(c) Members shall be appointed for the life of the Commission.

(d) (1) Members of the Commission shall each be en titled to receive an annual 

sala ry equal to the annu al sala ry payable to a judge of a United States district 

court.

(2) While away from the ir homes or regular places of business in the performance of services for the Commission, members of the Commission shall be 

allowed travel expenses, including per diem in lieu of subsistence, in the same 

manner as persons employed inte rmitten tly in the Government service are allowed 

expenses under section 5703(b) of titl e 5 of the United States Code.

(e) Three members of the Commission shall constitute a quorum. The Chairman of the Commission sh all be elected by the members of the Commission.

(f) The Commission may appoint and fix the pay of such personnel as it deems 

desirable, including such hearing examiners as are necessary for proceedings 

under this section. The provisions applicable to hearing examiners appointed 

under section 3105 of title 5 are applicable to hearing examiners appointed 

pursua nt to this subsection.

(g) (1) The Commission may secure directly from any departm ent or agency 

of the United States inform ation necessary to enable it to c arry out this section. 

Upon request of the Chairman of the Commission, the head of such department 

or agency shall furnish such information to the Commission.

(2) The Commission may use the United States mails in the same manner and 

upon the same conditions as other departmen ts and agencies of the United States.

(3) The Adm inistrator of General Services shall provide to the Commission 

on a reimb ursable basis such adm inistra tive supp ort services as the Commission 

may request.

GRANT OF GE NE RA L AM N ESTY BY T H E CO M M IS SI O N

Sec. 6. (a) Notw ithstanding any other provision of law, the Commission shall 

gra nt general amnesty as provided for in section 3 of this Act to any individual 

who, during the period beginning August 5, 1964, and ending on the effective date 

of this Act, violated any Federal law (oth er than one enumerated in section 4 

of this Act) or S tate or local law if the Commission finds th at—

(1) such violation was in substantial part motivated by the individual's 

opposition to, or protest again st, the involvement of the United States in 

Indochina ; and

(2) the individual was not personally responsible for any significant property damage or substantial personal injury to others in the course of his 

violation of any such law ;

except tha t, in any case in which the Commission finds tha t an individual was 

personally responsible for significant property damage or substan tial personal 

inju ry to others in the course of his violation of any such law, the Commission 

shall gra nt amnesty if it finds th at such conduct was justifiable on the basis of a 

moral or ethical belief deeply held by the individual.

(b )(1) Whenever the Commission grants general amnesty under this section 

to an applicant who received a discharge oth er than an honorable discharge 

from the Armed Forces, it shall make a finding as to whether any violation of 

law for which general amnesty is granted was solely the cause, or a substantial 

cause, of the gran ting of .such discharge.

(2) The Commission shall also have jurisdiction to hear and determine applications from individuals entitled to automatic amnesty under section 4 of this 

Act. and aggrieved by the refusal of the military board concerned to grant an 

honorable discharge to him under section 3(4 ) of this Act.
5

(3 ) Any fin ding or de te rm in at io n mad e by th e Co mm ission purs uant to th is 

su bs ec tio n sh al l be conclus ive up on th e m ilitar y bear d co nc erne d an d is no t 

review ab le by an y agenc y or me mb er of th e Ar me d Fo rces or an y civi lia n officer 

of the m ilitar y es ta bl ishm en t.

(c) Any in di vi du al des ir in g am ne sty un de r th is se< tion , or review of t he decisio n by a m ilitar y bo ard to deny him an ho no rable disc ha rg e, sh al l mak e 

ap pl ic at io n th ere fo r to th e Co mm iss ion in su ch form as it sh al l pr es cribe. Th e 

Comm ission sh al l no t rec eive an y ap pl ic at io n fo r am ne sty of di sc ha rg e review 

un de r th is Ac t aft e r th e clos e of th e fo rty- ei gh th mon th aft er th e mon th in wh ich 

th is s ec tio n ta kes effe ct.

(d ) Any ap pl ic at io n fo r am ne sty or d is ch ar ge review wh ich is tim ely filed sh al l 

be de term in ed on th e reco rd aft e r op po rtun ity fo r hea ri ng in ac co rd an ce with 

sections 554, 556, an d 557 of ti tl e 5, U ni te d S ta te s Code. Th e en ti re reco rd de ­

veloped at th e he ar in g o n an y ap pl ic atio n sh al l be ce rtifie d to th e Co mm ission f or 

decis ion . All de cis ions of th e Co mm ission sh al l be by m aj ori ty vote.

(e ) Any ap plica nt ma y ob ta in ju dic ia l review of a decis ion by th e Co mm ission 

which is ad ve rs e to him by filing a pet itio n fo r review in th e United Sta te s co ur t 

of ap pe als fo r th e ci rc uit whe rein he re side s w ith in si xt y da ys a ft e r th e date on 

wh ich th e de cis ion is made. Th e Co mm iss ion sh al l ther eu po n file in th e co ur t th e 

reco rd of th e proc ee ding s on wh ich th e Co mm iss ion b ased it s decis ion , as p rovided 

in se ction 2112 of ti tl e 28. The c ourt s hall ha ve juri sd ic ti on to review th e decis ion 

in ac co rd an ce w ith chap te r 7 o f ti tl e 5 an d to g ra n t appro pri at e re lief a s pro vide d 

fo r in such ch ap te r.

(f ) Any in di vi du al no t ab le to ap ply to th e Co mm ission fo r a det er m in at io n 

und er su bs ec tio n (b )(2 ) of th is su bs ec tio n be ca use th e decis ion of th e m ilitar y 

bo ar d co nc erne d to deny him an ho no ra bl e dis ch ar ge wa s mad e aft e r a dat e sixt y 

da ys pr io r to th e clos ing date si>ecified in su bs ec tio n (c ) of th is section may 

ob tain ju di ci al review of su ch decis ion by filing a pet itio n fo r review in the 

United Sta te s d is tr ic t co ur t fo r th e dis tr ic t w he re in he reside s w ith in sixty da ys 

aft e r th e dat e of such decis ion . The m il it ary bo ar d co nc erne d sh al l ther eu po n 

file in th e co urt th e reco rd of th e proc ee ding s on wh ich th e bo ar d ba sed its 

decis ion . The court sh al l ha ve ju ri sd ic tion to review th e de cis ion of th e m ilitar y 

bo ar d in ac co rd an ce w ith chap te r 7 of ti tl e 5, United S ta te s Code, an d to gra nt 

appro pri at e re lief as prov ided f or in suc h ch ap te r.

RESTORATION OF CIT IZ EN SH IP

Sec. 7. Ui»on pe tit io n to an y dis tr ic t co urt of th e U nited Sta te s, th e United 

S ta te s ci tize ns hi p of any fo rm er citi ze n who s ta te s th at he r en ou nc ed such c itiz en ­

sh ip solely or part ly be cause of di sa pp ro va l of invo lv em en t of th e U nited Sta te s 

in In do ch in a sh al l be fu lly a nd u nc on ditio na lly r es tore d.

SU ITS IN THE DISTRICT COURTS

Sec. 8. (a ) The dis tr ic t co ur ts of th e United S ta te s sh al l ha ve ju ri sd ic tion 

w ith ou t re gar d to th e am ou nt in co nt ro ve rsy to h ear ac tion s bro ug ht to re dr es s 

th e de pr iv at io n of r ig hts gra nte d by section 3 of th is Act, an d to g ra n t such leg al 

an d eq ui ta bl e re lief as m ay be a ppro pr ia te .

(b ) N ot w ith st an din g th e pr ov isions of section 2283 of ti tl e 28, U nited Sta te s 

Code, or an y su cc es so r pr ov ision th er et o, a dis tr ic t co urt hea ri ng an ac tio n 

br ou gh t p urs uant to subs ec tio n (a ) of th is section may gra nt in ju nct iv e re lief 

st ay in g proc ee ding s in a S ta te co ur t.

AUTHORIZATION OF APPR OPRIATIONS

Sec. 9. The re a re au th or iz ed to l)e a ppro pri at ed such sums as ma y be ne ce ssary 

to c ar ry ou t th e pro vi sion s o f this Act.

SEPARA BILITY OF PROVISIO NS

Sec. 10. If an y prov ision of th is Act or th e ap pl ic at io n th er eo f to an y perso n 

or circ um stan ce is he ld in va lid , th e re m ai nder of th e Ac t an d th e ap pl ic at io n of 

th e prov ision to ot her pe rson s or to oth er ci rc um stan ce s sh al l no t be aff ected 

ther eb y.

31 -6 5S— 74----- 2
6

EFFECTIVE DATES

Sec. 11. Se cti on s 4, 6, 7, an d 8 of th is Ac t sh al l ta ke effect up on th e dat e of 

ce ss ation of Un ite d Sta te s m ilitar y op er at io ns in or ov er So uth Vi etn am , North 

Vi etn am , Ca mb od ia, Laos, an d T hai la nd whic h dat e sh al l he pr oc laim ed by th e 

Pre si den t an d sh al l he no t la te r th an th re e mon ths aft e r th e date of en ac tm en t 

of th is Act.

[H .R . 674, 93d Cong., 1s t sess.]

A BIL L To ap pr ov e an d au th or iz e am ne sty or m itig at io n of pu ni sh m en t fo r ce rt ai n pe rson s 

who ha ve illeg ally m an ifes te d th eir di sa pp ro va l of U ni te d S ta te s par ti ci pat io n in th e 

Sou th ea st As ia w ar ; an d to prov ide fo r re st ora tion of civil an d po litica l ri ghts th a t have 

been lo st o r im pa ire d by re as on o f such ill eg al a ct s, an d fo r oth er pu rp os es

Be it enacted by the Senate and House of R epresentatives of the United States

of America in Congress assembled,,

DE FIN ITION S

Section. 1. (a ) Th e term “c es sa tio n of ho st ilitie s” mea ns th e dat e on which 

th e Pre si den t sh al l de cla re, by pu blic proc lamation, eit her th at ar m ed hos tilities 

in Sou th ea st As ia ha ve ended, or th a t th e level of United S ta te s invo lvem en t 

th er ei n ha s bee n redu ce d to su ch a lev el as to j ust if y th e ef fe ct ua tion of th is Act.

(b ) Th e term "p er so n” mea ns an y natu ra l or ar ti fi ci al perso n, includ ing the 

Un ite d Sta te s, th e se ve ra l Sta te s, an d ot he r co rp or at io ns publi c, mun icipal, 

ch ar itab le , or pr iv at e.

(c ) ThV term "o ffen de r” mea ns a natu ra l pe rson who has violated Fe de ra l or 

S ta te law du ring th e Viet na m w ar sol ely or par tl y be ca use of hi s di sa pp ro va l 

of United Sta te s par tici pat io n in s uch war.

(d ) Th e term ‘ n on violen t m ilitar y offend er” mea ns an offend er wh ole offense 

ha s been a violati on of th e m ilitar y law of the United S ta te s of Ame ric a an d 

ha s inv olved ne ithe r in ju ry to anoth er p erso n or s ubst anti al da m ag e to o r th eft o f 

th e pr op er ty of an oth er perso n, no r th e th re at th er eo f no r at te m pt th er ea t, in ­

clud in g off enders wh ose p un ishm en t lia s alre ad y bee n c omipleted.

(e ) The te rm "F ed er al offend er” mea ns an offend er wh ose off ense ha s been a 

viol atio n of th e law of th e United S ta te s or an y te rr it o ry or po ssessio n ther eo f, 

or th e D is tr ic t of Co lum bia , in cl ud ing offend ers wh ose pu ni sh m en t ha s al re ad y 

bee n comp leted.

(f ) The term "S ta te of fend er” mea ns an offend er wh ose offens e has been a 

vi ol atio n of the law of a ny S ta te or s ub division o r m un ic ip al ity th er eo f, in clud ing 

offend ers wh ose pun ishm en t h as al re ad y be en co mp leted.

(g ) The te rm "d ur in g th e Vietnam w ar” mea ns th e pe riod be ginn ing Aug us t 4, 

1964, an d en ding w ith th e ce ss ation of ho stili tie s.

APPROVAL AND AUT HORIZAT ION OF AMNESTY FOR CERTAIN OFFENDERS

Sec. 2. (a ) Th e Co ng res s de clar es th a t the in te re st s of th e United S ta te s 

re qu ire th e re st ora ti on of do mestic ha rm on y a t th e ea rl ie st ti m e ; th a t such 

in te re st s will be served by th e an nu lm en t of all lega l dis ad van ta ges th a t ha ve 

bee n in cu rr ed or su ffe red by reas on of op po sit ion to th e Vietnam war , to the 

gre ate st ex te nt co ns iste nt w ith na tion al se cu rity an d th e pre se rv at io n of i nte rn al 

o rd er; and th a t it is an im m un ity of citiz en s of th e U ni ted S ta te s (w ithin th e 

mea ni ng of secti on 1 of th e fo urt ee nt h am en dm en t to th e C on stitut io n of the 

United S ta te s) to en joy such an nu lm en t, to th e exte nt an d on th e co nd ition s, 

if an y, th a t may be au th or iz ed or imposed by th e P re si den t of th e U ni ted St at es .

(b ) Th e Co ng res s ex pr es se s it s ap pr ov al of such am ne sty or m itig at io n of 

pu ni sh m en t fo r no nv iolent m ilitar y offend ers an d fo r Fed er al offend ers as the 

Pre si den t of th e Un ite d S ta te s ma y, fro m tim e to tim e, g ra n t by pu blic pr oc la m atio n, un co nd itio na lly or on such co nd iti on s as he may pr es cribe.

(c ) Th e Pre si de nt of th e United Sta te s is au th ori ze d to re st ore th e United 

S ta te s ci tize ns hi p of an y or al l pe rson s who ha ve re linq ui sh ed such citiz en sh ip 

sol ely or part ly be ca use of th eir di sa pp ro va l of U nited S ta te s part ic ip at io n in 

th e Vietn am war .

(d ) Th e P re si den t of th e United Sta te s is fu rt h er au th or iz ed to gra nt, by 

pu blic pr oc la m at io n, am ne sty or m itig at io n of pu ni sh m en t to S ta te offen ders.
(e ) Any gra nt of am ne sty purs uant to th is Act sh al l ha ve th e eff ect of re st oring all civ il an d po lit ical ri ghts th a t ha ve bee n lost or im pa ired by reas on 

of (he viol atio n fo r wh ich am ne sty is gr an te d, un less th e P re si den t of th e United 

Sta te s sh al l ot he rw ise de clar e in his pu blic pr oc la m at io n gra nti ng such am ne sty.

ADMINIS TRATION

Sec. 3. The Atto rn ey Gen eral is au th orize d to issu e such ru le s an d re gu la tion s 

as may he ne ce ssary to carr y ou t eff ectiv ely th e pr ov isions of th is Act.

EFFECTIVE DATE

Sec. 4. This Ac t sh al l he eff ectiv e only up on th e ce ss atio n of hos tilities .

[H .R . 2167, 93 d Con g., 1s t sess.]

A BIL L To off er am ne sty un der ce rt ai n co nd iti on s to pe rson s wh o ha ve fa iled or re fuse d to re gis te r fo r th e d ra ft or to be in du ct ed in to th e Ar med For ce s of th e Uni te d Sta te s, 

an d fo r oth er pu rp os es

Be it en ac ted by the Sen at e an d Hou se of R ep re se nta tive s of th e United Sta te s

o f Am er ica in Co ngres s assemb led, T h at th is Ac t ma y be cite d as “T he Am nesty 

Act of 1973” .

Sec. 2. (a ) N ot w ithst an di ng an y oth er pr ov ision of law , an y pe rson wh o has 

ev ad ed or re fu se d re gis tr ati on und er th e M ilitar y Se lec tiv e Se rvice Ac t aft er 

Au gus t 4. 1964, or has ev ad ed or re fu se d in du ct io n in th e Ar med Fo rces of th e 

United S ta te s un der s uch Act s ub se qu en t to s uch dat e is h ereb y gra nte d i m mun ity 

from pr os ec ution an d pu ni sh m en t unde r section 12 of th e M ilitar y Se lec tiv e 

Se rvice Act, an d al l oth er law s, on ac co un t of an y su ch ev as ion or fa il ure to 

re gis te r unde r such Ac t or re fu sa l to be in du ct ed und er su ch Act, as th e case 

ma y be. if no t la te r th an one yea r aft e r th e dat e of en ac tm en t of th is Ac t 

su ch pe rson — (1 ) pr es en ts himse lf to th e A tto rn ey G en eral of th e U nited Sta te s or such 

ot her official or officials as may be de sign ated by th e Pre si den t, an d

(2 ) ag re es in ac co rd an ce w ith re gu la tions es ta bl is he d by th e Atto rn ey 

G en eral of th e United Sta te s to en list an d se rv e fo r a pe rio d of tw o yea rs in 

th e Ar me d Fo rces of th e United Sta te s, or ag re es to se rv e fo r a pe rio d of 

tw o ye ar s in pu blic se rv ice de scrib ed in section 6 (a ) (1 ) of th is A ct.

(b ) Th e w ill fu l fa il ure or re fu sa l of an y jie rso n to com ply w ith th e te rm s of 

his ag re em en t unde r se ction 2 (a ) of th is Act sh al l void an y gra nt of im mun ity 

mad e to su ch p erso n un de r th is Act.

Sec. 3. (a ) Any pe rson wh o ha s been co nv ict ed an d is s er vi ng a pr ison senten ce 

fo r ev ad ing or fa ilin g to re gis te r under th e M ilitar y Se lec tiv e Se rvice Act aft er 

Aug us t 4, 1964. or fo r ev ad in g or re fu si ng in du ct io n in th e Ar me d Fo rc es of th e 

United S ta te s unde r su ch Act a fte r su ch d ate sh al l be re le as ed fro m prison , an d 

th e re m aini ng po rtio n of an y pu ni sh m en t sh al l be waiv ed if such pe rson comp lies 

w ith th e pr ov isions of section 2 (a ) of th is Act, ex ce pt th a t th e tw o- ye ar perio d 

of m il it ary or pu blic serv ice re qu ired th ere under sh al l be redu ce d by an y pe rio d 

eq ua l to th e pe rio d se rv ed by such pe rson in pr ison fo r hi s co nv ict ion, bu t suc h 

pe rio d sh al l no t be redu ce d by mor e th an one ye ar . Any su ch pe rson sh al l be 

affo rd ed an op po rtun ity to pre se nt him se lf to th e A tto rn ey Gen eral purs uant to 

section 2 (a ) of this Act.

(b ) Any pe nd ing leg al proc ee ding s bro ught ag ai nst an y pe rson as a re su lt of 

his ev ad ing or fa ilin g to re gis te r unde r th e M ilitar y Se lec tiv e Se rvice Ac t a ft e r 

Aug us t 4. 1964. or fo r ev ad in g or re fu si ng in du ct io n in th e Ar med Fo rc es of th e 

United S ta te s if su ch pe rson ente rs in to an ag re em en t de scrib ed in section 2 (a ) 

of th is Act an d complete s th e pe rio d of m ilitar y or pu blic serv ice pr es cr ib ed in 

such ag reem en t.

Sec. 4. (a ) It is th e sense of th e Co ng res s th a t th e Pre si den t gra nt a pa rd on to 

an y pe rson co nv ict ed of an y offens e de scrib ed in se ction 3 (a ) of th is Act if such 

pe rson ente rs in to an ag re em en t de sc rib ed in section 2 (a ) of th is Act an d com ­

pletes th e pe riod of m ilitar y or pu blic se rv ice pr es cr ibed in su ch ag re em en t.

(b ) In an y ca se i n which a pe rson ha s been conv ict ed of a n off ens e de scrib ed in 

secti on 3 (a ) of th is Ac t an d ha s been re le as ed fro m prison , or giv en a su sp en de d 

senten ce , it is th e sens e of th e Co ng res s th a t th e P re si den t g ra n t a pa rd on to 

such pe rso n fo r such offense if su ch pe rson pe rfor m s m ilitar y or pu blic serv ice 

pr es cr ibed in se ction 2 (a ) of th is Act, re du ce d by a pe riod eq ua l to th e pe riod
8

se rv ed by such pe rson in prison fo r his co nv ict ion (b ut such pe rio d of service not 

to b e redu ce d by more th an o ne y ear) , pro vide d su ch pe rson un de rtoo k to i>erfonn 

su ch se rv ice be fore th e ex pi ra tion of one yea r a ft e r th e dat e of th e en ac tm en t 

of th is Act.

Sec. 3. The pr ov isions of sections 3 an d 4 of th is Act sh al l no t ap ply in the 

ca se of an y pe rson ot he rw ise eligible fo r th e benefits of su ch pr ov isions if suc h 

pe rson (1 ) is se rv in g a pr ison senten ce fo r an offens e no t de scrib ed in secti on 3 

of th is Act or is sche du led to ser ve, im med iately a ft e r co mpleti on of his senten ce 

fo r an offense de scrib ed in section 3 of th is Act, a pr ison te rm fo r an y ot he r 

off ense fo r wh ich he has bee n conv ict ed or (2 ) is w an te d fo r tr ia l fo r an y ot he r 

allege d offe nse, un les s th e Pre si de nt de term in es th a t th e pu blic in te re st would 

be bett er serv ed by af fo rd ing such pe rson th e be ne fits of th is Act.

Sec. 6. (a )(1 ) As used in th is Act, th e te rm "p ub lic se rv ice" mea ns —

(A ) Volun tee rs in Se rvice to Am eri ca (V IS T A ), an y Veter an s' Ad mi nis tr ati o n med ical fa ci lity , an y Pu bl ic H ea lth Se rvice fa ci lity , an d an y ot he r 

Fed er al em plo ym ent inv olving service in th e in te re st of th e publi c hea lth 

and w elfa re if such serv ice is ap prov ed fo r th e pu rp os es of th is Act by the 

Se cr et ar y of De fense, aft er co ns ul ta tion with th e Sec re ta ry of H ea lth , Edu ­

ca tio n, an d W elf are ; or

(B ) an y region al, Sta te , or loc al em ploy men t inv olving service in the 

in te re st of th e pu blic healt h an d w el fa re if such em ploy men t is ap prov ed 

fo r th e pu rpos es of th is Ac t by th e Se cr et ar y of De fen se, a ft e r co ns ul ta tion 

w ith th e Sec re ta ry of H ea lth . Edu ca tio n, an d W elfare.

(2 ) The Sec re ta ry of Defen se sh al l pr om ulga te, an d sh al l from tim e to tim e 

revise, a list in g of pu blic serv ice em ploy men t ap pr ov ed by him fo r th e pu rpos es 

of th is Act.

(b ) Th e Atto rn ey Gen eral is au th orize d to issu e su ch ru le s an d re gu la tion s 

as ma y be ne ce ssary to carr y ofit eff ectively th e pr ov isions of th is Act.

Sec. 7. All re fe re nc es in th is Act to th e M ilitar y Se lec tiv e Se rvice Act sh all 

be deem ed to includ e a re fe re nc e to pr ev ious co rres po nd in g Acts.

Sec. 8. (a ) No nat io nal of th e U ni ted Sta te s (w het her by bir th or by n atu ­

ra li zati on) sh al l los e hi s U nited Sta te s nat io nali ty und er th e pr ov isions of 

chap te r 3 of ti tl e III of th e Im m ig ra tion an d N at io nal ity Act (8 U.S.C. 148 1- 

1489), or un de r an y oth er prov ision of la w re la ti ng to los s of nat io nal ity, un les s 

an d un til he sh al l ha ve ob tain ed nat io na lity or pe rm an en t re si den t sta tu s in 

anoth er co un try .

(b ) Thi s se ction sh al l ta k e eff ect w ith re sp ec t to an y nat io nal of th e Un ite d 

S ta te s who, on or aft e r Ja n u ary 1, 1960, doe s an y ac t wh ich , un de r th e pr ovi sion s of chap te r 3 of ti tl e III of th e Im m ig ra tion an d N at io nal ity Act, or 

un der an y oth er prov isi on of law re la ting to loss of nat io nal ity, wi ll re su lt in 

th e loss of hi s United S ta te s nat io na lity .

[H .R . .3100, 93d Cong., 1s t se ss.]

A B IL L To ex on er at e an d to prov ide fo r a ge ne ra l an d un co nd itio na l am ne st y fo r ce rtai n 

pe rs on s wh o ha ve vi ol ated or ar e alleg ed to ha ve vi ol at ed laws in th e co urse of pro te st 

again st th e invo lvem en t of th e United S ta te s in In do ch in a, an d fo r oth er pu rpos es

lie it enacted by the Senate and House of Representatives of the United

S ta te s of Am er ica in Co ngress assemb led , T hat th is Ac t ma y be cited as the 

“W ar R es is te rs Exon er at io n Ac t of 1973’’.

FIN DING S AND DECLARATION

Sec. 2. (a ) Th e Co ng res s finds an d de clar es th a t a ge ne ral an d un co nd iti on al 

am ne sty, w ith fu ll re st ora tion of all civ il, po lit ic al, pr op er ty , an d oth er righ ts 

is a ne ce ss ary mea su re, aft e r th e ce ss ation of United Sta te s m ilitar y op er at io ns 

in In do ch in a, fo r th e reco nc ili atio n anf re in st at em en t of pe rson s who ha ve been 

pr os ec uted , or wh o may be su bj ec t to pr os ec ution, fo r fa ilin g to com ply with 

an y re qu irem en t of, or re la ting to, serv ice in th e Arme d Fo rces du ring th e 

invo lv em en t of th e United Sta te s in In do ch ina, or fo r en ga ging in an y no nv iolent 

act iv ity or ac tivity ju stified by deeply held mor al or et hi ca l be lie f in pro te st 

of, or op po sit ion, to th e invo lvem en t of th e United Sta te s in Indo ch ina.

(b ) Th e Co ng res s fu rt h er finds an d de clar es th a t it is an im mun ity of citiz en s 

of th e U nited S ta te s (w ithin th e mea ning of section 1 of th e fo ur te en th amend -
9

men t to th e Con stitut io n of th e United S ta te s) to enjoy th e an nulm en t of all 

leg al di sa dv an ta ge s th a t ha ve been in cu rr ed or suffered by reas on of op po sit ion 

to th e invo lvem en t of th e United S ta te s in In do ch in a, to th e gre ate st ex te nt 

co ns istent w ith th e pre se rv at io n of life an d prop ery.

EFFECT OF GENERAL AMNESTY

Sec. 3. Th e ge ne ra l am ne sty gra nte d by or und er th is Act sh al l, w ith resp ec t 

to an y vi ol atio n of law en um er at ed in se ction 4 or covered unde r section 6—

(1 ) re st or e to th e gra nte e al l civ il, po lit ic al, citize ns hi p an d pr op er ty 

ri ghts which ha ve bee n or mig ht be lost, susp en de d, or ot he rw ise lim ite d 

as a consequence of such v io la ti o n ;

(2 ) im mun ize th e gra nte e from cr im in al pr os ec ution fo r such vio la tion:

(3) ex pu ng e al l nota tion re la ti ng to su ch viol atio n from th e re co rd s of 

co ur ts an d law en fo rc em en t agencie s;

(4) re qu ire th e gra nti ng of an ho no ra bl e di sc ha rg e to an y pe rson who 

received a di sc ha rg e oth er th an an ho no ra bl e di sc ha rg e from th e Armed 

Fo rces if such vi ol atio n was solely th e ca us e, or a su bst anti al cause, of 

th e gra nting of such oth er th an ho no ra bl e dis ch ar ge: an d

(5 ) nu llify al l oth er lega l consequences of such violation.

AUTO MATIC GENERAL AM NESTY

Sec. 4. (a ) N ot w iths ta nd in g an y oth er pr ov ision of law , ge ne ra l am ne sty is 

he reby gr an te d to an y perso n fo r violation of one or mo re of t he l aw s en um er at ed 

in th is secti on , or re gu la tion s an d polic ies pr om ul ga te d purs uant th er et o, if suc h 

viol atio n was co mmitted be tw een Aug us t 4, 1964, an d th e eff ectiv e dat e of th is 

section. Such am ne sty is au to m at ic , an d no ap pl ic at io n to th e Amne sty Com ­

mission or any ot her ag ency is ne ce ss ary to e ff ec tu at e it.

(b ) Gen eral am ne sty is gra nte d fo r vi ol atio ns of an y of th e follo wing la w s:

(1 ) Section 12 of th e M ilitar y Se lec tiv e Se rvice Ac t (50 App. U.S.C. 462) 

with resp ec t to ( he fo llo wing pr oh ib ite d ac ts —

(A ) ev ad in g or re fu sing re gi st ra tion , ev ad in g or re fu sing in du ct io n in to 

th e Ar me d Fo rces, or will fully fa ilin g to pe rfor m an y oth er dut y und er such 

Act. or c on sp iring to do s o ;

(B ) kn ow ingly coun selin g, aid ing, or ab ett in g ot her s to re fu se or evade 

re gis tr at io n or serv ice in th e Ar me d Fo rces of th e United Sta te s, or co ns pi ring to do s o : or

(C ) pu bli cly an d kn ow ingly de stro yi ng or m uti la ti ng an y re gis tr ati on or 

clas sifica tio n ca rd issued or pres cribed purs uant to su ch Ac t an d kn ow ingly 

viol atin g or ev ad ing an y of th e prov isions of such Act, or ru le s an d re gula ­

tio ns pr om ulga te d purs uant th er et o re la ti ng to th e issu an ce , tr an sf er, or 

po ssessio n of an y re gis tr at io n or cla ss ific at io n ca rd.

(2 ) Secti on 882 of titl e 10, Un ited S ta te s Code, wh ich pr ohib its th e so lic iti ng 

or ad vi sing an ot he r, or at te m pti ng to so lic it or ad vi se othe rs , to des er t th e Arme d 

Fo rc es of the United Sta te s.

(3) Se cti on s 885 an d 886 of ti tl e 10. United S ta te s Code, wh ich pro hi bi t des er ting or going ab se nt w ith ou t lea ve fro m th e Ar me d Fo rc es of th e United St at es .

(4) Section 887 of ti tl e 10. United S ta te s Code, wh ich pr oh ib its missing the 

mov em ent of a ship, air cra ft , or unit w ith wh ich it is re qu ired in th e co ur se of 

dut y to move.

(5 ) Section 888 of ti tl e 10, U ni ted S ta te s Code, wh ich pr oh ib its us in g contem pt uo us wor ds ag ai nst th e Pre si de nt , th e Vic e Pre si de nt . Co ngres s, th e Sec ­

re ta ry of De fen se, th e Sec re ta ry of a m il it ary de par tm en t, th e Sec re ta ry of th e 

Tre as ury , or th e Gov erno r or le gis la tu re of an y St at e, te rr it ory . Co mm on we alt h, 

or posse ssion on wh ich he is on dut y or pre se nt w hile a comm iss ion ed officer in 

th e United Sta te s Ar med Fo rces.

(6 ) Section 1381 of ti tl e 18. United Sta te s Code, whic h pr oh ib its th e en ticing 

or pr oc ur in g, or co ns pi rin g or at te m pti ng to en tice or pr oc ur e an y pe rson in th e 

Ar me d Fo rces of th e United State s, or w ho ha s bee n re cr uited fo r se rv ice th er ei n, 

to de se rt th er ef ro m , or ai di ng an y such pe rson in de se rtin g, or in at te m pti ng to 

de se rt from such se rv ic e; or ha rb or in g, co ncealin g, pr ot ec tin g, or as si st in g an y 

such pe rson wh o ma y ha ve de se rted fro m such service , kn ow ing him to ha ve 

de se rted th er ef ro m , or re fu sing to give up an d de live r such pe rson on th e d em an d 

of any officer a ut ho ri ze d to rec eive him.
10

(7) Section 2387 of title 18, United States Code, which prohibits the advising, 

counseling, urging or in any manner causing or attem ptin g to cause insubordination, disloyalty, mutiny, or refusal of duty by any member of the military or 

naval forces of the United States, with the intent to interfere with, impair, or 

influence the loyalty, morale, or discipline of the military or naval forces of 

the United States.

A M N ESTY COM M IS SI ON

Sec. 5. (a) There is established a commission to be known as the Amnesty 

Commission (hereinafter in this Act referred to as the “Commission” ).

(b) The Commission shall be composed of five members, qualified to serve on 

the Commission by virtue of their education, training, or experience, as follows :

(1) One appointed by the President.

(2) One appointed by the Presiden t pro tempore of the Senate.

(3) One appointed by the Speaker of the House of Representatives.

(4) One appointed by the minority le ader of the Senate.

(5) One appointed by the minority leade r of the House of Representatives. 

Individuals who a re officers or employees of any government are not eligible for 

appointment to the Commission. A vacancy in the Commission shall be filled in 

the manner in which the original appointment was made.

(c) Members shall be appointed for the life of the Commission.

(d) (1) Members of the Commission shall each be entitled to receive an annual 

salary equal to the annual salary payable to a judge of a United States district 

court.

(2) While away from the ir homes or regu lar places of business in the performance of services for the Commission, members of the Commission shall be 

allowed travel expenses, including per diem in lieu of subsistence, in the same 

manner as persons employed interm ittently in the Government service are allowed 

expenses under section 5703(b) of title 5 of the United States Code.

(e) Three members of the Commission shall constitute a quorum. The Chairman of the Commission shall be elected by the members of the Commission.

(f) The Commission may appoint and fix the pay of such personnel as it deems 

desirable, including such hearing examiners as are necessary for proceedings 

under this section. The provisions applicable to hearing exam iners appointed 

under section 3105 of title 5 are applicable to hearing exam iners appointed pur ­

sua nt to this subsection.

(g) (1) The Commission may secure directly from any department or agency 

of the United States inform ation necessary to enable it to carry out this section. 

Upon request of the Chairman of the Commission, the head of such department 

or agency shall furnish such information to the Commission.

(2) The Commission may use the United States mails in the same manner 

and upon the same conditions as other departments and agencies of the United 

States.

(3) The Adm inistrator of General Services shall provide to the Commission 

on a reimbursable basis such adm inistrative support services as the Commission 

may request.

GRAN T OF GE NE RA L AM N ES TY BY T H E COM M IS SI ON

Sec. G. (a) Notw ithstanding any other provision of law. the Commission 

shall gra nt general amnesty as provided for in section 3 of this Act to any 

individual who, during the period beginning August 5, 1964, and ending on 

the effective date of this Act, violated any Federal law (other than one enumerated in section 4 of this Act) or State or local law if the Commission finds that—

(1) such violation was in subs tantial pa rt motivated by the individual's 

opposition to, or protest against, the involvement of the United States in 

Indochina ; and

(2) the individual was not personally responsible for any significant 

property damage or sub stan tial personal inju ry to others in the course of 

his violation of any such la w :

except tha t, in any case in which the Commission finds that an individual was 

personally responsible for significant property damage or substan tial personal 

inju ry to others in the course of his violation of any such law, the Commission 

shall grant amnesty if it finds that such conduct was justifiable on the basis 

of a moral or ethical belief deeply held by the individual.

(b) (1) Whenever the Commission g rants general amnesty under this section 

to an applicant who received a discharge other tha n an honorable discharge
11

from th e Ar me d Fo rces, it sh al l mak e a fin din g as to w het he r an y vi ol atio n of 

la w fo r wh ich ge ne ral am ne sty is gra nte d was sol ely th e cause, or a su bst anti al 

cause, of th e gra nti ng of such d isch arge .

(2 ) The Co mm ission sh al l also ha ve ju ri sd ic ti on to hear an d de te rm in e 

ap pl ic at io ns from in di vi dua ls en titled to au to m at ic am ne sty unde r section 4 

of th is Ac t an d ag gr ieve d by th e re fu sa l of t he m ilitar y bo ar d co nc erne d to gra nt 

an ho no rable di sc ha rg e to him unde r section 3(4 ) of th is Act.

(3 ) Any fin ding or de te rm in at io n mad e by th e Co mm ission purs uant to th is 

su bs ec tio n sh al l be conclus ive upon th e m ilitar y bo ar d conc erne d an d is not 

re vi ew ab le by an y ag ency or me mber of th e Ar med Fo rces or an y ci vi lian officer 

of th e m ilitar y es ta bl ishm en t.

(c ) Any in di vi du al de si ring am ne sty un de r th is section, or revi ew of th e 

decis ion by a m ilitar y bo ard to deny hi m an ho no ra bl e disc ha rg e, sh al l ma ke 

ap pl ic at io n th er ef or to th e Co mm ission in such form as it sh al l pres cribe. Th e 

Comm ission sh al l no t receive an y ap pl ic at io n fo r am ne sty or di sc ha rg e review 

un de r th is Act aft e r th e close of th e fo rty- ei gh th mon th a ft e r th e mon th in wh ich 

th is section ta kes effe ct.

(d ) Any ap pl ic at io n fo r am ne sty or di sc ha rg e review which is tim ely filed 

sh al l be de term in ed on th e reco rd aft e r op po rtun ity fo r hea ri ng in ac co rdan ce 

w ith sections 554. 550, an d 557 of ti tl e 5. United S ta te s Code. Th e enti re rec ord 

develop ed a t th e he ar in g on an y ap pl ic at io n sh al l be ce rtified to th e Co mm ission 

fo r decis ion . All de cis ions of th e Co mm ission sh al l be by m aj ori ty vote.

(e ) Any ap pl ic an t may ob tain ju di ci al review of a de cis ion by th e Co mm ission 

which is ad ve rs e to him by filing a pet itio n fo r review in th e United Sta te s co urt 

of ap pe al s fo r th e cir cuit w he re in he re side s w ithin si xt y da ys a ft e r th e dat e 

on wh ich th e decis ion is made. Th e Co mm ission sh al l ther eu po n file in th e co ur t 

th e reco rd of th e proc ee ding s on wh ich th e Co mm iss ion ba se d it s decis ion , as 

prov ided in section 2112 of ti tl e 28. The co ur t sh al l ha ve ju ri sd ic ti on to review 

th e decis ion in ac co rd an ce w ith chap te r 7 of ti tl e 5 an d to g ra n t appro pri at e 

re lief as prov ided fo r in such ch ap te r.

(f ) Any in di vi du al no t ab le to ap ply to th e Co mm ission fo r a de te rm in at io n 

und er su bs ec tio n (b ) (2) of th is su bs ec tio n be ca us e th e decis ion of th e m ilitar y 

bo ar d co nc erne d to deny him an ho no ra bl e di sc ha rg e was mad e a ft e r a dat e 

si xty da ys pri or to th e clo sin g dat e specified in su bs ec tio n (c ) of th is section 

may ob ta in ju dic ia l review of suc h de cis ion by filing a pet itio n fo r review in 

th e U ni ted S ta te s d is tr ic t co urt fo r th e dis tr ic t w he re in he re side s w ithin sixt y 

da ys aft e r th e date of such decis ion . Th e m ilitar y bo ar d co ncern ed sh all th ere ­

up on file in th e co ur t th e rec ord of th e proc ee ding s on which th e bo ar d based 

it s decis ion . The co urt sh al l ha ve ju ri sd ic tion to review th e de cis ion of th e 

m ilitar y bo ard in ac co rd an ce w ith chap te r 7 of ti tl e 5. United S ta te s Code, an d 

to gra nt ap pro pri ate re lief as prov ided fo r in such ch ap te r.

RESTORATION OF CIT IZ EN SH IP

Sec. 7. Upon pe tition to an y dis tr ic t co ur t of th e U nited Sta te s, th e United 

S ta te s ci tize ns hi p of an y fo rm er citiz en wh o st ate s th a t he reno un ce d suc h 

ci tize ns hi p sol ely or part ly be cause of di sa pp ro va l of invo lvem en t of th e Un ite d 

S ta te s in In do ch in a sh al l be fu lly an d un co nd itio na lly re stor ed .

SU ITS IN TH E DIST RICT COURTS

Sf.c. 8. (a ) The dis tr ic t co ur ts of th e United Sta te s sh al l ha ve ju ri sd ic tion 

w ith ou t re ga rd to th e am ou nt in co ntro ve rsy to h ear ac tion s br ou gh t to re dr es s 

th e de pr iv at io n of ri ghts gra nte d by section 3 of th is Act, an d to gra nt suc h 

leg al an d eq ui ta bl e re lief as may be ap pro pri at e.

(b ) N ot w iths ta ndin g th e pr ov isions of section 2283 of ti tl e 28, U nited Sta te s 

Code, or an y succ essor prov ision th er et o, a d is tr ic t co urt hear in g an ac tio n 

br ou gh t purs uant to su bs ec tio n (a ) of th is section ma y gra nt in ju nct iv e re lief 

st ay in g proc ee ding s in a S ta te co urt.

AUT HOR IZATION OF APPROPRIATIONS

Sf.c. 9. The re are au th ori ze d to lie appr op ri at ed such sums as ma y be ne ce ss ary 

to ca rr y ou t th e pr ov isions of th is Act.
12

SE PA RABIL IT Y OF PR OV ISIO NS

Sec. 10. If any provision of this Act or the application thereof to any person 

or circum stance is held invalid, the remainder of the Act and the application 

of tlie provision to other persons or to other circum stances sha ll not be affected 

thereby.

EF FE CT IV E DATES

Sec. 11. Sections 4, 6. 7, and 8 of this Act shall take effect upon enactment 

of tliis Act.

[H .R . 5195. 93d Cong., 1s t se ss .]

A B IL L To ex on er at e an d to prov ide fo r a ge ne ra l an d un co nd itio na l am ne sty for ce rt ai n 

pe rson s wh o ha ve violated or ar e alleg ed to ha ve vi ol at ed laws in th e co urse of pr ote st 

again st th e invo lvem en t of th e Uni te d Sta te s in In do ch in a, an d fo r oth er pu rpos es

Be it enacted bp the Senate and House o f Repre sentative s of the United States

of America in Congress assembled, That this Act may be cited as the "War 

Resistors Exoneration Act of 1973”.

FIN D IN G S AND DECLARATION

Sec. 2. (a) The Congress finds and declares th at a general and unconditional 

amnesty, w ith full restoration of all civil, political, property, and other rights is a 

necessary measure, after the cessation of United States military operations in 

Indochina, for the reconciliation and reinstateme nt of persons who have been 

prosecuted, or who may be subject to prosecution, for failing to comply with any 

requirement of. or rela ting to. service in the Armed Forces during the involvement of the United States in Indochina, or for engaging in any nonviolent 

activity or activity justified by deeply lield moral or ethical belief in protest of, 

or opposition to, the involvement of the United States in Indochina.

(b) The Congress furth er finds and declares that it is an immunity of citizens 

of the United States (within the meaning Of section 1 of the fourteen th amendment to tlie Constitution of the United States) to enjoy the annulment of all legal 

disadvantages that have been incurred or suffered by reason of opposition to the 

involvement of the United States in Indochina, to the greates t extent consistent 

with the preservation of life and property.

EF FE CT OF GE NE RA L AM N ESTY

Sec. 3. The general amnesty granted by or under this Act shall, with respect to 

any violation of law enumerated in section 4 or covered under section 6—

(1) resto re to the grantee all civil, political, citizenship and property 

righ ts which have been or might be lost, suspended, or otherw ise limited as 

a consequence of such violation ;

(2) immunize the gran tee from criminal prosecution for such viola tion:

(3) expunge all notation rela ting to such violation from the records of 

courts and law enforcement a gencies;

(4) require the grantin g of an honorable discharge to any person who 

received a discharge other tha n an honorable discharge from the Armed 

Forces if such violation was solely the cause, or a substan tial cause, of the 

grantin g of such other than honorable discharge ; and

(5) nullify all other legal consequences of such violation.

AUT OM AT IC GE NE RA L A M N ESTY

Sec. 4. (a). Notwithstanding any other provision of law. general amnesty is 

hereby granted to any person for violation of one or more of the laws enumerated 

in this section, or regulations and policies promulgated pursua nt thereto, if such 

violation was committed between August 4, 1964, and the effective date of this 

section. Such amnesty is autom atic, and no application to the Amnesty Commission or any other agency is necessary to effectuate it.

(b) General amnesty is granted for violations of any of the following laws:

(1) Section 12 of the Military Selective Service Act (50 App. U.S.C. 462) with 

respect to the following prohibited acts—
13

(A) evading or refusing registration, evading or refusing induction into 

the Armed Forces, or willfully failing to perform any other duty under such 

Act, or conspiring to do s o;

(It) knowingly counseling, aiding, or abetting others to refuse or evade 

registration or service in the Armed Forces of the United States, or conspiring 

to do s o; or

(C) publicly and knowingly destroying or mutilating any registration or 

classification card issued or prescribed pursuant to such Act and knowingly 

violating or evading any of the provisions of such Act, or rules and regulations promulgated pursuant thereto rela ting to the issuance, transfer, or 

possession of any registration or classification card.

(2) Section 882 of title 10, United States Code, which prohibits the soliciting 

or advising another, or attem ptin g to solicit or advise others, to desert the Armed 

Forces of the United States.

(3) Sections 885 and 886 of title 10, United States Code, which prohibit 

deserting or going absent without leave from the Armed Forces of the United 

States.

(4) Section 887 of title 10, United States Code, which prohibits missing the 

movement of a ship, aircra ft, or unit with which it is required in the course of 

duty to move.

(5) Section 888 of title 10, United States Code, which prohibits using contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of .a military department, the Secretary of the 

Trea sury, or the Governor or legislature of any State, terr itory. Commonwealth, 

or possession on which he is on duty or present while a commissioned officer in 

the United States Armed Forces.

(6) Section 1381 of title 18, United States Code, which prohibits the enticing 

or procuring, or conspiring or attempting to entice or p rocure any person in the 

Armed Forces of the United States, or who has been rec ruite d for service therein, 

to desert therefrom, or aiding any such person in deserting, or in attempting to 

dese rt from such ser vic e; or harboring, concealing, potecting, or assisting any 

such person who may have deserted from such service, knowing him to have 

deserted therefrom, or refusing to give up and deliver such person on the demand 

of any officer authorized to receive him.

(7) Section 2387 of title 18, United States Code, which prohibits the advising, 

counseling, urging or in any manner causing or atte mpting to cause insubordination, disloyalty, mutiny, or refusal of duty by any member of the military or 

naval forces of the United States, with the inte nt to inte rfere with, impair, or 

influence the loyalty, morale, or discipline of the military or naval forces of the 

United States.

A M N ESTY COM M IS SI ON

Sec. 5. (a) There is established a commission to be known as the Amnesty 

Commission (hereinaf ter in this Act referred to as the “Com mission'').

(b) The Commission shall be composed of five members, qualified to serve on 

the Commission by virtue of the ir education, training, or experience, as follows:

(1) One appointed by the President.

(2) One appointed by the President pro tempore of th e Senate.

(3) One appointed by the Sjieaker of the House of Representatives.

(4) One appointed by the minority leader of the Senate.

(5) One appointed by the minority leader of the House of Representatives. 

Individuals who are officers or employees of any government are not eligible for 

appointment to the Commission. A vacancy in the Commission shall be filled in 

the manner in which the original appointment was made.

(c) Members shall be appointed for the life of the Commission.

(d) (1) Members of the Commission shall each be entitled to receive an annual 

salary equal to the annu al salary payable to a judge of a United States district 

court.

(2) While away from the ir homes or regu lar places of business in the performance of services for the Commission, members of the Commission shall be 

allowed trav el expenses, including i>er diem in lieu of subsistence, in the same 

manner as persons employed interm ittently in the Government service are allowed 

expenses under section 5703(h) of titl e 5 of the United States Code.

(e) Three members of the Commission shall constitute a quorum. The Cha irman of the Commission shall lie elected by the members of the Commission.
14

(f) The Commission may appoint and fix the pay of such personnel as it deems 

desirable, including such hearing examiners as are necessary for proceedings 

under this section. The provisions applicable to hea ring exam iners appointed 

under section 3105 of title 5 are applicable to hearing examiners appointed pur ­

suant to th is subsection.

(g) (1) The Commission may secure directly from any departm ent or agency 

of the United States inform ation necessary to enable it to c arry out this section. 

Upon request of the Chairman of the Commission, the head of such department 

or agency shall furnish such information to the Commission.

(2) The Commission may use the United States mails in the same manner and 

upon the same conditions as other departments and agencies of the United States.

(3) The Adm inistrator of General Services shall provide to the Commission 

on a reimbursable basis such adm inistrative support services as the Commission 

may request.

GRANT OF GE NE RA L A M N ESTY BY T II E CO M M IS SIO N

Sec. 6. (a) Notwithstanding any other provision of law, the Commission shall 

gra nt general amnesty as provided for in section 3 of this Act to any individual 

who, during the period beginning August 5, 1964, and ending on the effective da te 

of this Act, violated any Federal law (other than one enum erated in section 4 

of this Act) or State or local law if the Commission finds that—

(1) such violation was in substan tial part motivated by the individual's 

opposition to, or protest against, the involvement of the United States in 

Ind ochin a; and

(2) the individual was not personally responsible for any significant property damage or sub stan tial personal inju ry to others in the course of his 

violation of any such law ;

except tha t, in any case in which the Commission finds that an individual was 

personally responsible for significant property damage or sub stantial personal 

injury to others in the course of his violation of a ny such law, the Commission 

shall gra nt amnesty if it finds that such conduct was justifiable on the basis of 

a moral or ethical belief deeply held by the individual.

(b) (1) Whenever the Commission grants general amnesty under this section 

to an applicant who received a discharge other th an an honorable discharge from 

the Armed Forces, it shall make a finding as to whether any violation of law for 

which general amnesty is g ranted was solely the cause, or a su bst antial cause, of 

the grantin g of such discharge.

(2) The Commission shall also have jurisdiction to hea r and determ ine applications from individuals entitled to automatic amnesty under section 4 of this 

Act and aggrieved by the refusal of the military board concerned to gra nt an 

honorable discharge to him under section 3(4) of tliis Act.

(3) Any finding or determination made by the Commission pursu ant to this 

subsection shall be conclusive upon the miltary board concerned and is not reviewable by any agency or member of the Armed Forces or any civilian officer of 

the military establishment.

(c) Any individual desiring amnesty under this section, or review of the 

decision by a military board to deny him an honorable discharge, shall make 

application therefo r to the Commission in such form as it shall prescribe. The 

Commission shall not receive any application for amnesty or discharge reivew 

under this Act after the close of the forty-eighth month after the month in 

which th is section takes effect.

(d) Any application for amnesty or discharge review which is timely filed 

shall be determined on the record after opportunity for hearing in accordance 

with sections 554, 556, and 557 of title 5, United States Code. The entire record 

developed at the hearing on any application shall be certified to the Commission 

for decision. All decisions of the Commission shall be by majority vote.

(e) Any applicant may obtain judicial review of a decision by the Commission 

which is adverse to him by filing a petition fo r review in the United States court 

of appeals for the circuit wherein he resides within sixty days after the date on 

which the decision is made. The Commission shall thereupon file in the court the 

record of the proceedings on which the Commission based its decision, as provided in section 2112 of title 28. The court shall have jurisdic tion to review the 

decision in accordance with cha pter 7 of title 5 and to gra nt appropriate relie f 

as provided for in such chapter.

(f) Any individual not able to apply to the Commission for a determination 

under subsection (b) (2) of this subsection because the decision of the military
15

boa rd conc erne d to d eny him an ho no ra bl e di sc ha rg e was mad e a ft e r a date s ix ty 

day s pri or to th e clo sin g date spe cified in su bs ec tio n (c ) of th is section may obta in ju dic ia l review o f such de cis ion by filing a pet itio n fo r review in th e United 

S ta te s d is tr ic t co urt fo r th e dis tr ic t whe re in he re side s w ith in si xty da ys aft er 

th e dat e of such decis ion . Th e m ilitar y bo ar d co nc erne d sh al l th er eu po n file in 

th e court th e reco rd of t he proc ee ding s on which th e bo ar d ba se d it s decis ion . Th e 

co urt sh al l ha ve ju ri sd ic tion to review th e decis ion of th e m ilitar y bo ar d in 

ac co rdan ce w ith chap te r 7 of title 5, U ni ted S ta te s Cod e, an d to g ra n t ap pr opri ate rel ie f as p rovide d fo r in such c ha pt er .

RE STOR AT ION OF C IT IZ E N S H IP

Sec. 7. Upo n j»et ition to an y d is tr ic t court of th e U ni ted St at es , th e United 

Sta te s ci tize ns hi p of an y fo rm er citize n wh o st ate s th a t he reno un ce d such 

citize ns hi p sol ely or part ly be ca us e of di sa pp ro va l of invo lv em en t of th e United 

S ta te s in Ind oc hi na s ha ll be fu lly a nd u nc on di tion al ly res tore d.

SU IT S IN T H E DISTR IC T COURTS

Sec. 8. (a ) Th e dis tr ic t co ur ts of th e U nited S ta te s sh all ha ve ju ri sd ic tion 

w ithout re ga rd to th e am ou nt in co nt ro ve rsy to h ear ac tion s br ou gh t to re dr es s 

th e de pr iv at io n of ri ghts gra nte d by se ction 3 of th is Act, an d to g ra n t such 

leg al a nd e qu itab le rel ie f as m ay b e a pp ro pr ia te .

(b ) N ot w iths ta nd in g th e pr ov isions of se ct ion 2283 of ti tl e 28, U ni ted Sta te s 

Code, or an y succ essor prov ision th er eto, a dis tr ic t co urt hea ri ng an ac tio n 

br ou gh t purs uant to su bs ec tio n (a ) of th is se ction may gra nt in ju nct iv e re lief 

st ay in g proce ed ings in a S ta te co ur t.

AUT HO RIZ ATI ON OF APP ROPR IA TI ONS

Sec. 9. The re are au th or iz ed to be ap pr opri at ed such s um s as may be ne ce ss ar y 

to ca rr y ou t th e pr ov isions o f th is A ct.

SE PA RABIL IT Y OF PR OV ISIO NS

Sec. 10. If an y pr ov ision of th is Ac t or th e ap pl ic at io n th er eo f to an y pe rso n 

or circ um stan ce is held in va lid , th e re m ai nder of th e Ac t an d th e ap pl ic at io n 

of th e pr ov ision to ot her pe rson s or to oth er ci rc um stan ce s sh al l no t be affecte d 

th ereb y.

effective dates

Sec. 11. Se ctions 4, 6, 7, an d 8 of th is Ac t sh al l ta ke effect up on th e dat e of 

ce ss ation of U ni ted Sta te s m ilitar y op er at io ns in or ov er So uth Viet na m, Nor th 

Viet na m, Ca mb od ia, Laos, an d T hai la nd wh ich date sh al l be proc laim ed by 

th e P re si den t an d sh al l be no t la te r th an th re e mon ths aft e r the dat e of en ac tmen t of t his A ct.

[H .R . 109 79, 93d Cong., 1s t se ss.]

A BIL L to offe r am ne st y un de r ce rt ai n co nd itio ns to pe rson s wh o ha ve fa ile d or re fu se d to 

re gis te r fo r th e d ra ft or who ha ve fa ile d, or re fuse d in du ct io n in to th e Arme d For ce s of 

th e Uni te d Sta te s, or ha ve de se rte d th e Ar me d Fo rces , an d fo r oth er pu rp os es

Be it enacted by the Senate and House of Representatives of the United

S ta te s o f Amer ica in Congres s assemb led , T h at th is Act may be ci te d as “The 

Am nesty Ac t of 1973’’.

A M N ESTY CO M M IS SI O N

Sec. 2. (a ) Ther e is es ta bl ishe d a comm ission to be kn ow n as th e Amne sty 

Co mm ission (h ere in aft er re fe rr ed to as th e “Com miss ion ” ).

(b ) The Co mm iss ion sh al l be comp ose d of five me mbers, qu ali fie d to serve 

on th e Co mm iss ion by vir tu e of th eir ed uc at io n, tr ai nin g, or ex pe rie nc e as 

fo llow s:

(1 ) One ap po in te d by the Pre si de nt .

(2 ) One ap po in te d by t he Pre si den t pr o tem po re of th e Se na te.

(3 ) One ap po in te d by the Sp ea ke r of th e Ho use of Rep re se nt at iv es .

(4 ) One ap po in te d by t he m in or ity le ad er of th e Se na te.

(5 ) One ap po in te d by t he m in or ity le ad er of th e Hou se of R ep re se nt at iv es .

In di vid ual s wh o are officers or em plo yees of an y go ve rn m en t are not eligible 

fo r ap po in tm en t to th e Co mm ission . A va ca nc y in th e Co mm iss ion sh al l be filled 

in th e m an ne r in wh ich th e or ig in al ap poin tm en t w as made.
16

(c ) Mem bers sh al l be ap po inted fo r th e lif e of tli e Co mm ission .

(d ) (1) Me mb ers of th e Co mm iss ion sh al l each be en titled to rec eiv e an an nu al 

sa la ry eq ua l to th e an nu al sa la ry to a ju dg e of a U ni ted S ta te s dis tr ic t co urt.

(2 ) W hile a way from th eir homes or re gula r plac es of bu sine ss in the per fo rm ­

an ce o f service s fo r th e Comm ission , mem be rs of th e Co mm iss ion s ha ll b e all ow ed 

tr avel expense s, in cl ud ing per die m in lie u of su bs istenc e, in th e sa m e m an ne r 

as pe rson s emplo yed in te rm it te ntl y in th e Gov ernm en t service are all ow ed 

ex pe nses un de r section 57 03 (b) of ti tl e 5 of th e U nited S ta te s Code.

(e ) Thr ee mem bers of th e Co mm iss ion sh all const itute a qu orum fo r th e 

pu rpos e of c on du cting bu sin ess. Th e C ha irm an of th e Co mm iss ion sh all be ele cte d 

by th e me mbers of th e Comm ission .

(f ) Th e Comm ission ma y ap po in t an d fix th e pa y of su ch pe rson ne l as it 

deem s de sirable, in cl ud in g such hea ri ng ex am in er s as are ne ce ssary fo r pro ceedings un de r th is sec tio n. Th e pr ov isions ap plicab le to h eari ng e xa m in er s ap po inted 

un de r section 3105 of ti tl e 5, United Sla te s Cod e, are ap pl ic ab le to he ar in g 

ex am in er s ap po in te d p urs uant to th is subsectio n.

(g) (1 ) Th e Co mm iss ion may se cu re di re ctly from an y dep ar tm en t or agenc y 

of th e United Sta te s in fo rm at io n ne ce ss ary to en ab le it to car ry ou t th is sec tion. 

Upon re qu es t of th e C hai rm an of th e Comm ission , th e he ad of su ch dep ar tm en t 

or agency sh al l fu rn is h such in fo rm at io n to th e Comm ission .

(h ) Th e Co mm ission ma y use th e United S ta te s m ai ls in th e same m an ne r 

an d up on th e sa m e co nd iti on s as ot he r dep ar tm en ts an d ag en cies of th e Un ite d 

St at es .

(i ) Th e A dm in is tr at or of Gen eral Se rvice s sh al l pr ov ide th e Comm ission on 

a re im bu rs ab le ba sis such ad m in is tr ati ve su pp or t se rv ices as th e Comm ission 

ma y re qu es t.

(j ) P u rs u an t to th e auth ori ty ve ste d in th e Co mm ission unde r th is Act. they 

sh al l issu e re gu la tion s an d ru le s to in su re or de rly co mplian ce w ith th e te rm s 

of th is Act, an d such re gu la tion s an d ru le s sh al l bec ome effecti ve th ir ty da ys 

aft er pu bl ic atio n in th e Fed er al Re gister.

(k ) In ad di tion to th e Fed er al ag en cies spe cifica lly en um er at ed in sections 

3(2 ) an d 3 (3 ), th e Comm ission sh all ha ve th e auth ori ty to includ e oth er agencie s 

an d in st ru m enta li ti es of th e Fed er al Go ve rnme nt as ac ce pt ab le metho ds of fu lfillin g th e re qu irem en ts of th is Act.

POWERS OF TH E COMM ISSION

Sec. 3. (a ) N ot w ithst an din g an y oth er prov ision of law , an y pe rso n who ha s 

ev ad ed or re fu se d re gis tr ati on und er th e M ilitar y Se lec tiv e Se rvice Act betw een 

August. 4, 1964 an d Ja n u ary 27, 1973, or ha s ev ad ed or re fu se d indu ction in 

(h e Ar me d Fo rces of th e United Sta te s un de r such Act be tw een such da te s is 

he reby gr an te d im mun ity from pros ec ution an d pu ni sh m en t unde r section 12 of 

th e M ilitar y Se lec tiv e Se rvice Act, an d all ot he r laws, on ac co un t of an y suc h 

ev as io n or fa il ure to re gis te r und er such Act or re fu sa l to be indu cted un de r 

such Act. as th e case ma y be, an d

(b ) N ot w ith st an di ng an y oth er prov ision of th e law , an y me mber of the 

U ni te d S ta te s Ar me d Fo rces wh o de se rted fro m th e m ilitar y duri ng th e perio d 

be tw ee n Aug ust 4, 1964 an d Ja n u ary 27. 1973. is he reby gra nte d im mun ity 

from pr os ec ut io n an d pu ni sh m en t un de r th e Uniform Cod e of M ilitar y Ju st ic e 

on ac co un t of an y suc h de se rtio n or ot he r ac t. as th e case mig ht be if no t la te r 

th an on e yea r aft e r th e dat e of en ac tm en t of th is Act, such pe rson —

(1 ) pr es en ts hi m se lf to th e Co mm ission or su ch pe rs on s de sign at ed by 

th e C om mission to receive ap pl ic atio ns from affecte d pe rson s,

(2 ) ag re es in ac co rd an ce w ith regu la tio ns es ta bl is he d by th e Comm ission 

to en list an d se rv e fo r a perio d of two yea rs in th e Ar me d Fo rces of the 

U ni ted State s, or ag re es to se rv e fo r a pe rio d of tw o year s in one of the 

co mpo ne nt ag encie s of AC TIO N, a V et er an s’ A dm in is trat io n Hos pital, a 

Pub lic H ea lth Service Hos pital, o r oth er Fed er al se rv ice eligible purs uan t to 

re gu la tion s issu ed un de r s ec tio n 2 (j) of th is Act. an d

(3) ag re es to serve fo r suc h pe rio d in the lowest pa y gra de a t wh ich persons se rv e in th e Arme d Fo rces of th e U ni ted Sta te s, one of the comp onent 

ag en cies of AC TIO N, V et er an s’ A dm in is trat io n hos pi ta ls , Pu blic H ea lth 

Se rvice ho sp ita ls, or oth er Fe de ra l ser vic e, as th e ca se may be.

(c ) The will fu l fa ilure or re fu sa l of an y pe rso n to com ply w ith th e te rm s of 

his ag re em en t un de r sec tio n 2 (a ) of th is Ac t sh al l void an y g ra n t of im mun ity 

mad e to s uch pe rso n und er this Act.
17

Sec. 4. (a) Any person who has been convicted and is serving a prison sentence for evading or failing to register under the Military Selective Service 

Act between August 4. 1964 and January 27. 1973, or for evading or refusing induction in the Armed Forces of the United States under such Act between such 

dates shall lie released from prison, and the remaining portion of any punishment 

shall be waived if such person complies with the provisions of section 3 of this 

Act. except, tha t the two-year period of militar y or public service required thereunder shall be reduced by any period equal to the period served by such person in 

prison for his conviction, but such period shall not lie reduced by more than one 

year. Any such person shall be afforded an opportunity to p resent himself to the 

Commission purs uan t to section 3 of this Act.

(b) Any person who has been convicted and is serving a prison sentence for 

desertion of the Armed Forces under the Uniform Code of Military Justice for 

actions which took place between August 4, 1964 and January 27, 1973, shall 

be released from prison, and the remaining portion of any punishment shall be 

waived if such person complies with the provisions of section 3 of this Act, except that the two-year period of milita ry or public service required thereunder 

shall be reduced by any period equal to the period served by such j>erson in 

prison for his conviction, but such period shall not be reduced by more than one 

year. Any such person shall be afforded an opportu nity to present himself to the 

Commission purs uan t to section 3 of this Act.

(c) Any pending legal proceedings brought against any person as a resu lt of 

his evading or failing to register under the M ilitary Selective Service Act between 

August 4, 1964 and January 27, 1973, or for evading or refusing induction in the 

Armed Forces of the United States under such Act between such dates, or for 

desertion of the Armed Forces of the United States under the Uniform Code of 

Military Justice between such dates, shall be dismissed by the United States if 

such person enters into an agreement described in section 3 of th is Act and completes the period of military or public service prescribed in such agreement.

Sec. 5. (a) It is the sense of the Congress that the President gra nt a pardon to 

any person convicted of any offense described in section 3 of this Act if such person e nters into an agreement described in section 3 of this Act and completes the 

I»eriod of military or public service prescribed in such agreement.

(b) In any case in which a person has been convicted of an offense described 

in section 3 of this Act and has been released from prison, or given a suspended 

sentence, it is the sense of the Congress th at the President gra nt a pardon to 

such person for such offense if such person performs military or public service 

prescribed in section 3 of this Act, reduced by a period equal to the period served 

by such person in prison for his conviction (such period of service not to be 

reduced by more than one ye ar) , provided such person undertook to perform such 

service prior to the expiration of one ye ar following the effective date of th is Act.

Sec. 6. The provisions of sections 4 and 5 of this Act shall not apply in the case 

of any person otherw ise eligible for the benefits of such provisions if such person (1) is serving a prison sentence for an offense not described in section 3 of 

this Act, or is scheduled to serve, immediately after completion of his sentence 

for an offense described in section 3 of this Act, a prison term for any other 

offense for which he has been convicted or (2) is wanted for trial for any other 

alleged offense, unless the President determines th at the public inte rest would be 

better served by affording such person the benefits of this Act.

Sec. 7. All references in this Act to the Military Selective Service Act and to 

the Uniform Code of Military Justice shall be deemed to include a reference to 

previous corresponding Acts.

Sec. 8. Persons serving in a component agency of ACTION, a Veterans’ Administration hospital, a Public Health Service hospital, or other nonmilitary Federal 

service under this Act shall not be eligible to receive Federal employee benefits 

otherw ise payable to employees of such agencies.

Sec. 9. Any finding or d eterm ination made by the Commission pursuan t to this 

subsection shall be conclusive upon the military board concerned and is not 

reviewable by any agency or member of the Armed Forces or any civilian officer 

of the M ilitary Establishm ent.

Sec. 10. Upon petition to any dis tric t court of the United States, the United 

States citizenship of any former citizen who states th at he renounced such 

citizenship solely or partly because of disapproval of involvement of the United 

States in Indochina shall be fully and unconditionally restored.

Sec. 11. There are authorized to be appropriated such sums as may be necessary to carr y out the provisions of this Act.
18

Sec. 12. If any provision of this Act or the application thereof to any person 

or circum stance is held invalid, the remainder of the Act and the application 

of the provision to other persons or to other circum stances shall not be affected 

thereby.

Sec. 13. This Act shall be effective thirty days after enactmen t by the 

Congress of the United States.

[H .R . 109 80, 9 3d Con g., 1s t sess. ]

A BIL L To offer am ne sty to pe rson s wh o ha ve fa iled or re fu se d to re gis te r fo r th e dra ft 

or who ha ve faile d, or re fu se d in du ct io n in to th e Ar me d For ce s of th e Uni ted Sta te s, or 

ha ve de se rte d the Armed Fo rces, an d fo r oth er pu rp os es

Be it enacted by the Senate and House of Represen tatives of the United

States of America in Congress assembled, Th at this Act may be cited as the 

“Amnesty Act of 1973”.

Section 1. (a) Notwithstanding any other provision of law, any person who 

has evaded or refused registr ation under the Military Selective Service Act 

between August 4, 1964, and Jan uary 27, 1973, or has evaded or refused induction in the Armed Forces of the United States under such Act between such 

dates is hereby granted immunity from prosecution and punishment under 

section 12 of the Military Selective Service Act. and all other laws, on account 

of any such evasion or fa ilu re to r egister under such Act or refu sal to be inducted 

under such Act, as the case may be, and;

(b) Notwithstanding any other provision of the law. any member of the United 

States Armed Forces who deserted from the military during the period between 

August 4, 1964, and Jan uary 27, 1973, is hereby granted immunity from prosecution and punishment under the Uniform Code of Military Justice on account of 

any such desertion or other a ct, as the case might be if not later than one year 

aft er the effective date of this Act, such person presents himself to the Attorney 

General of the United States or other such official or officials as may be designated 

by the Attorney General.

Sec. 2. (a) Any person who has been convicted and is serving a prison sentence 

for evading or failing to register under the M ilitary iSelective Service Act between 

August 4, 1964, and Jan uary 27, 1973, or for evading or refusing induction in the 

Armed Forces of the United States under such Act between such dates shall be 

released from prison, and the remaining portion of any punishment shall be 

waived.

(b) Any person who has been convicted and is serving a prison sentence for 

desertion of the Armed Forces under the Uniform Code of Military Justice for 

actions which took place between August 4, 1964, and Jan uary 27. 1973, shall be 

released from prison, and the remaining portion of any punishment shall be 

waived.

(c) Any pending legal proceedings brought against any person as a result of 

his evading or failing to register under the Military Selective Service Act between 

August 4, 1964, and Jan uary 27. 1973, or for evading or refusing induction in the 

Armed Forces of the United States under such Act between such dates, or for 

desertion of the Armed Forces of the United States under the Uniform Code of 

Military Justice between such dates, shall be dismissed by the United States.

Sec. 3. (a) It is the sense of the Congress tha t the Presiden t gra nt a pardon 

to any person convicted of any offense described in section 1 of this Act.

(b) Tn any case in which a person has been convicted of an offense described 

in section 1 of this Act and has been released from prison or given a suspended 

sentence, it is the sense of the Congress that the Presiden t gra nt a pardon to 

such person for such offense.

Sec. 4. The provisions of sections 2 and 3 of this Act shall not apply in the case 

of any person otherwise eligible for the benefits of such provisions if such 

person (1) is serving a prison sentence for an offense not described in section 1 

of this Act, or is scheduled to serve, immediately after completion of his sentence 

for an offense described in section 1 of this Act, a prison term for any other 

offense fo r which he has been convicted or (2) is wanted for trial for any other 

alleged offense, unless the President determines th at the public inte rest would 

be better served by affording such person the benefits of this Act.

Sec. 5. The Attorney General is authorized to issue such rules and regulations 

as may be necesssary to carr y out effectively the provisions of this Act.
19

Sec. 6. All references in this Act to the Military Selective Service Act and the 

Uniform Code of Military Justice shall be deemed to include a reference to previous corresponding Acts.

Sec. 7. Upon petition to any dis trict court of the United State s, the United 

States citize nship of any form er citizen who states that he renounced such 

citizenship solely or partly because of disapproval of involvement of the United 

States in Indochina shall be fully and unconditionally restored.

Sec. 8. There are authorized to he a ppropriate d such sums as may he necessary 

to carry ou t the provisions of this Act.

Sec. 9. If any provision of this Act or the application thereof to any person or 

circum stance is held invalid, the remainder of the Act and the application of the 

provision to other persons or to other circumstances shall not be affected 

thereby.

Sec. 10. This Act shall be effective ninety days after enactment by the Congress of the United States.

[H .R . 13001, 93 d Con g., 1st ses s.]

A BIL L To am en d ti tl e IS , Uni ted S ta te s Code, to pr ov ide fo r th e co nd itio na l su sp en sio n 

of t he ap plica tion of c er ta in p en al p ro vi sion s of la w

Be it enacted by the S enate and House of Represen tatives of the United States

of America in Congress assembled, T ha t t itle 18, United States Code, is amended 

by inserting immediately after cha pter 119 a new chapter, as follow s:

“Chapte r 121.—CONDITIONAL SUSPENSION OF THE APPLICATION OF 

CERTAIN PENAL PROVISIONS OF LAW

“Sec.

“2 610 . Amne sty ; c on ditio ns .

“2611 . Re lease of pe rson s co nv icted ; d ism is sa l of proceeding s.

“2 612 . Par do ns .

"26 13. A dm in istrat io n.

“§2610. Am nesty; conditions

“ (a) No law providing for the punishment of persons evading or refusing 

registratio n for the military service of the United States, or of persons evading or 

refusing induction in the Armed Forces of the United States, shall apply to any 

person who lias evaded or refused such reg istratio n or induction during the [teriod 

beginning A ugust 4,1904, and ending March 29,1973, if such person—

“ (1) presents himself to the Natio nal Amnesty Board, established under 

section 2014 of this title, not lat er than two years after the date of the 

enactmen t of this Act, or tha t date, as determined and publicly proclaimed 

by the President, on which all Americans missing in action who have been 

held by or known to such government or such forces have been accounted 

for, whichever d ate is la te r;

“(2) agrees, in accordance with regulations established by the National 

Amnesty Board under section 2614 of this title , to serve for a period of two 

years in the Armed Forces of the United States, or to serve for a period of 

two years in such altern ate civilian service as the Natio nal Amnesty Board 

determines will contribute to the maintenance of the national health, safety, 

environmental quality, or other in te re st; and

“(3) agrees, in accordance with regulations established by the National 

Amnesty Board under section 2614 of this title to begin such service in the 

lowest pay grade at which persons serve in the Armed Forces or eligible 

altern ate civilian service, and to continue such service at pay levels no 

gre ater than those approved by the Nation al Amnesty Board.

“ (b) The National Amnesty Board may, for good cause shown by an applicant 

for amnesty under the provisions of this chapter, waive in part or in whole the 

service requirement of subsection (a) of this section with respect to such applicant, after opportunity for a hearing on the record, if in the judgm ent of such 

Board the special circum stances of such applicant's case, such as disability to 

perform such service, merit such ex trao rdinary action.

“(c) Notw ithstanding the provisions of section 345) of tlie Immigration and 

Nationality Act (8 U.S.C. 1481), no person who makes an agreement under subsection (a) of this section shall be deemed to have lost his sta tus as a national 

of the United States.
20

“ (d) All laws providing for the punishment of persons evading or refusing 

registratio n for the military service of the United States, or of persons evading 

or refusing induction in the Armed Forces of the United State s, shall apply to 

any person who willfully fails or refuses to comply with the term s of his agreement made under this section. The period beginning with such person’s application to the National Amnesty Board under section 2610 of this title and concluding with the end of his compliance with the terms of his agreem ent shall not be 

counted toward the running of any sta tut e of limitation with respect to any 

offense for which amnesty is given under this chapter.

“ (e) Any person in prison, whether with respect to an offense for which 

amnesty may be given under the provisions of this chapter, or with respect to 

another offense, shall be afforded an opportunity to present himself to the 

National Amnesty Board pursuant to this chapter for the purpose of seeking 

the amnesty offered under this chapter. If such Board determines such person 

is eligible for amnesty under this chapter, such dete rmin ation shall not modify 

tha t person’s obligation with respect to any offense other tha n that offense or 

offenses with respect to which such Board has acted.

“§2611. Release of persons convicted; dismissal of proceeedir.gs

“ (a) Any person who has been convicted and is serving a prison sentence for 

evading or failing to register for the military service of the United States during 

the period beginning August 4, 1964, and ending March 29, 1973, or for evading 

or refusing induction in the Armed Forces of the United States during such 

period shall be released from prison, and the remaining portion of any punishment shall be waived, if such person complies with the provision of section 

2610(a) of this title, except that the two-year period of military or civilian 

service required thereunder shall be reduced by a period equal to the period 

served by such person in prison with respect to his conviction, and the service 

requirement shall be completely waived in the case of any person who has served 

at least eighteen months in prison solely with respect to such conviction.

“ (b) Any criminal proceeding brought aga inst any person as a resu lt of his 

evading or failing to register for the military service of the United States during 

the period beginning August 4, 1964, and ending March 29, 1973, or for evading 

or refusing induction in the Armed Forces of the United States during such 

period, shall be dismissed if such person enters into an agreement described in 

section 2610(a) of this title and completes the i>eriod of military or civilian 

service prescribed in such agreement, and such proceedings shall be stayed du ring 

the period of such service.

“§ 2612. Pard ons

“ (a) It is the sense of the Congress that the Preside nt gra nt a pardon to 

any person convicted of any offense described in section 2611(a) of this title 

if such person presents himself to the National Amnesty Board and enters into 

an agreement, under* section 2610 of this title, and th at such pardon shall be 

conditioned upon the completion of the service prescribed in such agreement, 

except th at with respect to any such person who has been imprisoned with 

respect, to such conviction, such service shall be reduced by a period equal to 

the period served by such person in prison solely w ith respect to such conviction. 

It is the sense of Congress that such service requirement should be waived 

entirely in the case of any person who has served at leas t eighteen months in 

prison solely with respect to such conviction.

“ (b) It is the sense of Congress that any pardon made under this chapter 

shall have the effect of restoring all civil and political righ ts which may have 

been lost or impaired as a result of any conviction for which amnesty was 

given under this chapter, and any such pardon shall have such effect to the ex tent 

not prohibited by the Constitution.

“§2613. Adm inistration

“ (a) There is established, as of the date of the proclamation referred to in 

section 2610 of this title, the Natio nal Amnesty Board (he reinaf ter referred to 

as the ‘Board’).

“ (b) The Board shall be composed of three members who shall be appointed 

by the Presiden t by and with the advice and consent of the Senate, and shall 

serve at the pleasure of the President. The President shall designate one of 

the members to serve as Chairman. The Chairman shall serve full time and be
21

an offic ial of th e U ni ted Sta te s. The C ha irm an sh al l ap po in t an Ex ec utiv e 

D irec to r of th e Boa rd wh o sh al l se rv e unde r th e di re ct io n of th e C hai rm an of 

th e Boa rd an d pe rfor m such du ties as th e C ha irm an ma y specify .

“ (c ) The Boa rd is au th ori ze d to issu e su ch ru le s an d re gu la tion s as ma y l>e 

ne ce ss ar y to ca rr y ou t eff ectiv ely th e pr ov isions of th is ch ap te r. Th e Boa rd 

is also a ut ho ri ze d to r ev iew s uc h oth er c as es inv ol ving offen ses o r all eg ed o ffense s 

ag ain st th e U ni ted Sta te s as th e Pre si den t co ns id er s ap pro pri ate fo r suc h 

review co ns is te nt w ith th e pu rpos es of th is ch ap te r, an d th e Boa rd sh al l ma ke 

a re po rt to t he Pre si de nt which s ha ll includ e it s fin din gs a nd its reco mmen da tio ns 

as to w he th er pa rd on or im m un ity from pr os ec ut io n (o r bo th ) sh ou ld be gr an te d 

or de nie d, an d, in an y case in which it reco mmen ds th a t su ch pa rd on o r im mun ity 

be gr an te d, it s re co m men da tio ns w ith re sp ec t to th e co nd ition s, if an y, of such 

pa rd on or im mun ity . “ (d ) The mem be rs of th e Bo ard, ex ce pt fo r th e Cha irm an , sh al l se rv e w ith out 

co mpe ns ati on , but sh al l be en ti tl ed to ne ce ss ar y ex pe nses in cu rr ed in th e per ­

fo rm an ce of th eir du ties und er th is chap te r, as pe rson s em plo yed in te rm it te ntl y 

in th e Gov er nm en t se rv ice und er section 57 03 (b ) of ti tl e 5 of th e U ni ted Sta te s 

Code. Th e C ha irm an of th e Boa rd sh al l be en titled to ne ce ss ary ex pe nses on th e 

same ba sis an d to th e same ex te nt as oth er me mbers, but sh al l also rece ive suc h 

co mpe ns ation as t he Pre si de nt sh al l de term in e.

“ (e ) All ex ec ut ive dep ar tm en ts an d ag en cies of th e Fed er al Gov ernm en t are 

au th or iz ed an d di re ct ed to co op er ate w ith th e Boa rd in it s wo rk, an d to fu rn is h 

th e Boa rd all a ppro pri ate i nf orm at io n a nd as sistan ce .

“ (f ) The Boa rd sh al l ce as e to exis t no la te r th an tw o yea rs a ft e r th e end 

of th e on e-ye ar pe riod follo wing th e date de term in ed by th e Pre si dent un de r 

section 26 10 (a ) (1 ) of t his t it le .” .

Sec. 2. (a ) Th e ta bl e of ch ap te rs of ti tl e 18, U nited S ta te s Code, is am en de d 

by in se rtin g a t th e e nd o f th e ta bl e of ch ap te rs f or Part I —Cri mes , th e fo llo wing: 

“ 121. Con di tion al susp en sion of th e ap plica tion of ce rt ai n pe na l pr ov isio ns of la w __26 10 ”.

(b ) Th e ta bl e of c hap te rs of p art I of t it le 18, U ni ted S ta te s Code, is am en de d 

by in se rtin g a t th e en d th er eo f th e fo llow in g:

“ 121. Con di tion al susp en sion of th e ap pl ic at io n of ce rt ai n pe na l pr ov isio ns of la w __26 10 ”.

Sec. 3. Se cti on 12(a ) of th e M ilitar y Se lective Se rvice Ac t of 1967 is am en de d 

by st ri kin g out “A ny ” a t th e be ginn ing of such se ction an d in se rt in g in lie u 

th er eo f “E xc ep t as prov ided in c hapte r 121 of ti tl e 18, U ni te d S ta te s Cod e, any”.

[I I. Con. Res . 144. 93 d Cong., 1st se ss .]

CONCURRENT RESOL UTION

W he re as more th an tw o million one hu nd re d th ou sa nd men were indu ct ed an d 

ho no rably se rv ed in th e Ar med Fo rces o f th e United S ta te s sin ce J an u ary 1, 1961, 

an dW he re as mor e th an tw o mill ion five hund re d th ou sa nd me n ha ve ho no rably 

an d ga llan tly se rv ed i n Viet na m, an d

W he reas mor e th an forty -fi ve th ou sa nd nine hu nd re d of th es e me n w er e kille d 

in ac tio n, an d

W he reas mor e th an th re e hu ndr ed an d th re e th ou sa nd of thos e who ho no rably 

an d ga llan tly ser ve d were in ju re d in s er vice to t heir co un try, an d

W he re as th e M ilitar y Se lec tiv e Se rvice Act prov id es fo r pu blic se rv ice in lie u 

of m ilitar y s ervice for tho se who h av e va lid g roun ds , an d

W he re as fo r ev ery man wh o re fu se d to ac ce pt hi s re sp on sibi lity anoth er ha d 

to ta ke hi s p la ce: Now, th er ef or e, be it

Res olve d by th e Hou se of R ep re se nta tive s (t he Sen at e co ncu rr in g), T h a t it 

is th e sens e of Co ng res s th a t no pa rd on , re pr ieve , or am ne sty be en ac te d by th e 

Co ng res s o r ex er cise d by th e Pre si den t w ith re sp ec t to pe rson s who (1 ) are in 

vi ol atio n of th e M ilitar y Se lec tiv e Se rvice Ac t be ca use of t heir re fu sa l to re gis te r 

fo r th e d ra ft a n d /o r th eir re fu sa l to be indu ct ed , or (2 ) be ing a mem be r of th e 

Ar me d Fo rces, fled to a fo re ign co un try to av oid fu rt h er m ilitar y serv ice in 

vi ol atio n of th e Uniform Cod e o f M ilitar y Ju st ic e.

31 -6 58 — 74------ 3
22

[H. Con. Res. 3S5, 93d Cong., 1st sess.]

CONCURRENT RESOLUTIO N

Whereas more than two million one hundred thousand men were inducted and 

honorably served in the Armed Forces of the United States since Jan uary 1, 

1961, and Whereas more th an two million five hundred thousand men have honorably and 

gallantly served in Vietnam, and

Whereas more than forty-five thousand nine hundred of these men were killed 

in action, and

Whereas more tha n thre e hundred and thre e thou sand of those who honorably 

and gallantly served were injured in service to their country, and

Whereas the Military Selective Service Act provides for public service in lieu 

of military service for those who have valid grounds, and

Whereas for every man who refused to accept his responsibility another had 

to ta ke his plac e: Now, therefore, be it

Resolved by the House of Representatives (the Sena te concurring), That it is 

the sense of Congress that no pardon, reprieve, or amnesty be enacted by the 

Congress or exercised by the Presiden t with respect to persons who (1) are in 

violation of the Military Selective Service Act because of their refusal to register 

for the draft an d/or the ir refusal to be inducted, or (2) being a member of the 

Armed Forces, fled to a foreign country to avoid furth er military service in 

violation of the Uniform Code of Military Justice.

General Counsel of the Department of Defense,

Washington, D.C., March 8, 797.}.

lion. Peter W. Rodino,

Chairman, Committee on the Juidiciary ,

House o f Representatives, Washington, D.C.

Dear Mr. Chairman : This is in response to your letters of January 23, 1974, 

requesting th e views of t he Depa rtment of Defense on the following related bills :

H.R. 236, 93rd Congress, a bill “To exonerate and to provide for a general and 

unconditional amnesty for certain persons who have violated or are alleged to 

have violated laws in the course of protest aga inst the involvement of the United 

States in Indochina, and fo r other purposes.”

II.R. 675, 93rd Congress, a bill “To amend Title 18, United States Code, to 

conditionally suspend the application of certain penal provisions of law.”

H.R. 10979, 93rd Congress, a bill “To offer amnesty under certain conditions to 

persons who have failed or refused to register for the draft or who have failed 

or refused induction into the Armed Forces of the United States, or have deserted 

the Armed Forces, and for other purposes.”

The provisions of H.R. 675, and H.R. 10979 are sim ilar in that both bills would 

gra nt immunity from prosecution and punishment to any person who has evaded 

or refused registration subsequent to August 4, 1964, or has evaded or refused 

induction in the Armed Forces of the United States if, not lat er than one year 

after enactement, such person presents himself to, in the case of H.R. 675, the 

Attorney General of the United States or such o ther official or officials as may be 

designated by the President, and in the case of H.R. 10979, the Amnesty Commission (established pursuant to Section 2( a) of the bill), and agree s to enlist 

and serve for a period of two years in the Armed Forces of the United States, or 

agree s to serve for a period of two years in one of the component agencies of 

ACTION, a Veteran’s Administration Hospital, a Public Health Service Hospital, 

or other Federal service, such service to be in the lowest pay grad e of the 

respective agencies.

II.R. 10979 describes how and when the Amnesty Commission would be estab ­

lished. as well as the commission's dura tion, composition, authority, limitations, 

responsibilities and method of operation.

The bills also provide for the release from prison of persons who have after 

August 4, 1974, been convicted for evading or failing to register for induction, 

or who have evaded or refused induction in the Armed Forces—and in the case 

of H.R. 10979. who have been convicted and are serving a prison sentence for 

desertion of the Armed Forces under the Uniform Code of Military Justice— 

provided such persons agree to enlist in the Armed Forces or serve with one of
23

the agencies mentioned above for a period of two years, less any time served in 

prison, but not to exceed a reduction of more tha n one year.

Further, it would be the sense of the Congress th at the President g ran t a pardon to such persons, as well as those who had been released from prison or given 

a suspended sentence if they undertook to perform the prescribed service within 

one year following th e effective date of the bills’ enactment.

II.R. 23(5, if enacted, would be cited as the “War Resisters Exoneratio n Act of 

1973.” The Congress would find and decla re that a general and unconditional 

amnesty, with full restoration of all civil, political, property, and other rights 

is a necessary measure, afte r the cessation of United States military operations in 

Indochina, for the reconsideration and rein statem ent of persons who have been 

prosecuted, o r who may be subject to prosecution, for failing to comply with any 

requirement of, or rela ting to, service in the Armed Forces during the involvement of the United States in Indochina, or for engaging in any nonviolent activity, or activity in which significant prop erty damage or substan tial personal 

inju ry resulted, i f such activ ity was justified by deeply held moral or ethical belief 

in protest of, or opposition to, the involvement of th e United States in Indochina.

Tlfe bill would furth er requ ire the granting of an honorable discharge to any 

person who received a discharge other than honorable from the Armed Forces 

if such violation was motivated by the individual's opposition to, or protest 

against, the involvement of the United States in Indochina.

In general, amnesty would be granted for violation of Section 12 of the Military Selective Service Act (50 App. U.S.C. 4(52), Sections 882, 885, 88(5; 887, and 

888 of Title 10, U.S. Code, and Sections 1381 and 2387 of Title 18, U.S. Code.

II.It. 236 would establish an Amnesty Commission identical in composition to 

that described in II.lt. 10979, The commission established by II.It. 236 would have 

the jurisdiction to hear and determine applications from individuals entitled to 

automatic amnesy under section 4 of the act and .aggrieved by the refu sal of the 

military hoard concerned to gra nt an honorable discharge. Any finding or determ ination made by the commission would he conclusive upon the military board 

concerned and would not be reviewable by any agency or member of the Armed 

Forces or any civilian officer of the military establishment.

All amnesties in our histo ry have been proclaimed by the President under 

his constitutional power to gra nt reprieves and pardons for offenses aga inst the 

United States. This authority was used for the first time with regard to deserters 

in 1807 when Preside nt Thomas Jefferson granted full pardons to individuals 

who had deserted from the Army during the 1795 Whiskey Rebellion if they 

surrendered themselves within a period of 4 months.

Through the years there have been other Preside ntial proclamations issued, 

generally after a war, which granted pardons to deserters. However, certain 

stipulations or conditions were prescribed, such as (1) deserters in confinement 

were to be released and retu rned to duty, (2) deserters-at-large, and under sentence of death, were to be discharged and never again enlisted in the service of 

the country, (3) dese rters who returned were to forfeit all pay and allowances 

during the ir time of absence, (4) deserters who returned were to make up time 

lost by the ir absence and complete their terms of military obligation, and (5) 

deserters had to sur ren der themselves within a specified time after the proclamation.

The las t amnesty for military deserte rs was granted pur suant to Proclamation No. 1687 issued by P resident Coolidge on March 5, 1924. T hat Proclamation 

was prompted by Public No. 291, 62d Congress, approved, August 23, 1912 which 

provided that dese rters from the Armed Forces would forfeit their citizenship. 

Although the 1924 Proclamation is often believed to be a general amnesty granted 

to deserters, it only applied to those individuals who had deserted after the 

Armistics of World War I. and only restored the ir right to citizenship which 

had been forfeited upon their conviction. Approximately 100 men were affected 

by the Proclamation.

There has been no general amnesty granted to individuals who deserted during 

World War II, the Korean conflict or the Vietnam conflict.

In regard to dr aft evaders, as opposed to deserters, limited amnesty was 

granted by Preside nt Roosevelt in 1933 and Preside nt Truman in 1947 under 

circumstances which it is understood are being described by the Selective Service 

System in testifying on the present bills.

Granting immunity from prosecution and punishment and release from prison 

of those persons described in these bills who chose to violate or evade provisions 

of the law requ iring service to their country must be considered in rela tion to
24

those persons who did not take such action but, instead, accepted the ir obligations and responsibilities. During the period 1964-1973, more tha n 1,800,000 men 

were inducted in the armed forces. In addition, hundreds of thousands more 

were motivated by the possibility of induction to volunteer for enlistment into 

the active or reserve forces or volunteered for patriotic or other reasons. Other 

thousands chose to ente r officer procurement programs, such as ROTO, in lieu 

of being inducted. Unfortunately, many of these officers and men were among 

the more tha n 45,000 who died in the service of the ir country or among the 

300,000 who were wounded. Others became prisoners of war. Those persons who 

were inducted or were motivated by the draft to enlist were not given the 

option of serving in a public or private civilian activity in lieu of military 

service as offered to those for whom immunity from prosecution would be provided in II.R. 675 and II.It. 10979. It is quite possible that many persons who 

entered military service would have preferred an altern ative of this type. In 

view of these considerations, we do not consider these bills to be equitable.

It would appear th at a significant number of those who violated or evaded 

the law requiring service to the ir country did so because they disagreed with 

the United States’ involvement in the Vietnam war, and it is conceivable,th at 

some of these persons would now be willing to take advanta ge of the provisions 

of ll.lt. 675 and II.R. 10979 by entering the armed forces. However, the ir past 

actions strongly indic ate th at if any fut ure situation involving the use of the 

armed forces arose, their presence, dependability, efficiency and effectiveness 

would depend entirely on their moral or political concurrence in this action. 

Their instability in this regard could have an adverse effect on the morale of 

others serving with them, could constitute a dangerous risk to the safety of 

themselves and others, and could jeopardize the ability of the units in which 

they served to complete the ir missions successfully.

It is our view that the substitutio n of military service or service in an alternate civilian activity for a penal sentence, or worse, unconditional amnesty as 

proposed under II.R. 236. is inappropriate. It is also our belief that individuals 

who have violated civil law should be answerable to civil authorities. Fines of 

not more than $10,000 and/or imprisonment for not more tha n five years are 

presently authorize d for persons who violate the provisions of the Military 

Selective Service Act. II.R. 675 and II.It. 10979 would, in effect, substitute 

military or civilian service for those penalties. The Departm ent of Defense 

holds military service to be a privilege, and we are opposed in principle to any 

procedure which would make the performance of militar y service a consequence 

of a violation of civil law. It follows th at we are also opposed to a bill such 

as II.R. 236 which would require no punishment whatsoever to persons who 

have violated military and/o r civil law.

In reference to II.It. 236, the Depa rtment of Defense has made every effort 

to insure that the system of issuance of characterized discharges includes procedural safe guards to ensure that the individual's rights are adequately protected and that the cha racter of the discharge accurately reflects the quality 

of the individual’s service. Since 1961, over ten million men and women have 

been sepa rated from the armed services. Ninety-five percent of those individuals 

have been discharged under honorable conditions.

Pursu ant to 10 United States Code 1553, the Secretaries of the military 

departm ents have established discharge review boards which, except for cases 

involving a discharge which “resulted from the sentence of a General Courtma rtia l,” may “change a discharge or dismissal, or issue a new discharge.” A 

form er serviceman can apply to such a board for relief at any time up to 

15 years from the date of his discharge. Although an individual may appear 

before the discharge review board if he so desires, personal appearance is not 

necessary to accomplish remedial relief. The discharge review board will determine whether tlie discharge was equitably and properly given. If it does not 

so find, it will change the cha rac ter of the discharge.

In addition to tlie adm inistrative discharge review boards established under 

10 United States Code 1553, each of the m ilita ry departm ents has also established 

a board for the correction of m ilita ry records under 10 United States Code 1552. 

These boards consist of five civilian members and have broad powers to recommend to the Secretary concerned a change in an individual’s military records, 

including his discharge, to correct an inaccuracy or to cure an injustice.

The existing review board system has ade quate autho rity to correct an error or 

cure any injustice which may have been done in the issuance of an other than 

honorable discharge. Therefore, the establish ment of an amnesty commission
concerned only with the review of discharges of Vietnam era vete rans is questionable on the grounds of equality of treatm ent for vete rans of former and 

future periods.

Finally, enactmen t of these bills would establish an undesirable precedent 

which would encourage persons to avoid service in any future conflict, reasonably 

confident that once the conflict is over they would be gran ted immunity from 

prosecution.

For th e reasons discussed above, the Department of Defense opposes the enactment of H.R. 236, H.R. 675 and H.R. 10979.

The Office of Management and Budget advises th at from the standpoint of the 

Adm inistration’s program, there is no objection to the submission of this repo rt 

for the consideratio n of the Committee.

Sincerely,

L. Xiederlehner,

Acting General Counsel.

T he Library of Congr ess, 

Congres sional Reserac h Service,

Washington, D.C., March 1 ,197-i.

To: House Subcommittee on Courts, Civil Liberties and the Adm inistration of 

Justice, Attn : William P. Dixon.

From : American Law Division.

Su bje ct: Comparison of Amnesty Bills.

This is in response to your request for a comparison of the following amnesty 

measures, H.R. 236, 674, 2167, 3100, 5195, 10979, 10980, and II. Con. Res. 144 and 

3S5. We are enclosing such a comparison.

Since the preparation of the enclosed report, one additional amnesty bill. II.R. 

13001, has been introduced in the House of Representatives. H.R. 13001 establishes 

a Natio nal Amnesty Board and provides for immunity from prosecution, dismissal of pending proceedings, and release from prison for draft evasion and 

induction refusals, conditioned upon an agreement to perform two years of militar y or public service. Except for the estab lishm ent of the Board, II.R. 13001 is 

generally sim ilar to II.R. 2167.

Richard E. Isreal, 

Legislative Attorney .

COMPARISON OF AM NE STY BILLS

Introduction

H.R. 236, 3100 and 5195 are the most comprehensive bills in term s of the 

offenses for which amnesty is authorized and the effect of amnesty. H.R. 236 

grants autom atic, general amnesty for a number of specific offenses and establishes an Amnesty Commission to gra nt general amnesty for the nonviolent or 

otherw ise “morally justified” violation of Federal, Sta te or local laws where the 

violation was s ubs tantially motivated by opposition to United States involvement 

in Indochina. Among th e effects of amnesty is a restoration of all civil, political 

and property rights and the nullification of all legal consequences of the violation. 

There is also a provision for the judicial restoration of citizenship. II.R. 5195 

is identical to H.R. 236 and H.R. 3100 is identical except for the effective date. 

For the purposes of this comparison, a reference to H.R. 236 is also a reference 

to H.R. 3100 and 5195.

H.R. 674 is a less comprehensive bill which authorizes the Presiden t to gra nt 

amnesty for the violation of Sta te or local laws where the violation was solely 

or partly motivated by disapproval of United States participation in the Vietnam 

War. For similarly motivated violations of Federal law or nonviolent violations 

of military law, H.R. 674 simply expresses approval of Pre sidential amnesty 

or mitigation of punishment. Except as provided by the President, amnesty 

restores all civil ami political rights lost as a result of th e violation. T here is also 

a provision for the Pre sidential restoration of citizenship.

H.R. 2167, 10979 and 109SO grant immunity from prosecution, a dismissal of 

pending proceedings, and release from prison for dr af t evasion, induction refusal 

and, in the case of H.R. 10970 and 10980, for desertion. H.R. 2167 and 10979 

condition such gra nts on an agreem ent to perform two years of m ilita ry or public 

service. As in H.R. 236, II.R. 10979 esta blish es an Amnesty Commission, but it 

has much more limited functions. All three bills have l’residential pardon provisions and H.R. 10979 and 10980 have provisions for a judicial restoration of 

citizenship.
26

The tw o reso lutio ns , II. Con. Res . 144 an d 385, sim ply ex pr es s di sa pp ro va l of 

Con gression al or Pre si den tial am ne sty fo r d ra ft ev asion, in du ct io n re fu sa l, and 

de se rtion. Th ese tw o reso lu tio ns are no t fu rt h er co ns idered in th is re po rt. Th e 

re m ai nd er of th is re po rt is a co mpa ris on of th e hi lls w ith re sp ec t to : (1 ) const it uti onal ba sis of am ne sty, (2 ) gra nts of am ne sty, (3 ) co nd iti on al gra nts of 

am ne sty, (4) Co ng ressiona l ap pr ov al of P re si den tial am ne sty an d pa rdon s, (5) 

offenses wh ich are th e su bj ec t of am ne sty, (6 ) eff ect of am ne sty, (7 ) re st ora tion 

of citiz en sh ip, (8) adm in is trat io n an d (9 ) ju dic ia l remedies .

1. Con stitut io na l Ha sis fo r A m nest y

On ly two of th e bills ha ve prov isions co nc erning th e C ons titu tion al ba sis fo r 

g ra nts of am ne sty. II.R. 230 de clar es th a t it is an im m un ity of United Sta te s 

citiz en s, un de r the 14th Am en dm en t, to en joy th e an nu lm en t of all leg al di sad va nta ges in cu rr ed by reas on of op po sitio n to U ni ted S ta te s invo lvem en t in 

In do ch in a, to th e gre ate st ex te nt co ns iste nt w ith th e pre se rv at io n of lif e an d 

pr op er ty. II.R . (574 has a si m ilar prov ision ex ce pt th a t th e exte nt of th e annulm en t is th at co ns iste nt w ith nat io nal se cu rity an d do mes tic orde r.

2. Gra nts of A m ne st y

II.R . 23G gra nts au to m at ic , ge ne ral am ne sty fo r vi ol at io ns of a nu m be r of 

specific fe de ra l laws an d es ta bl is he s an Am nesty Co mm ission to gra nt ge ne ral 

am ne sty fo r th e no nv iolent or ot he rw ise mor ally ju stified viol atio n of ot he r 

Fe de ra l, Sta te , or local laws whe re th e viol atio n was su bst anti all y mot iv at ed 

b.v op po sit ion to United S ta te s invo lvem en t in In do ch in a. II.R . (574, un lik e II.R. 

23(5, doe s no t pr ov ide fo r a dir ec t Con gression al g ra n t of am ne sty but au th or iz es 

th e Pre si de nt to gra nt am ne sty or m itig at io n o f pun is hm en t fo r viol atio ns of 

S ta te or local law , but no t Fed er al law , whe re th e viol atio n wa s solely or par tly 

m ot ivated by di sa pp ro va l of th e U ni te d Sta te s par tici pat io n in th e Viet na m W ar. 

The re is no re qu irem en t th a t th e vi ol atio n of S ta te o r loc al law mus t ha ve been a 

no nv iolent one.

H.R. 10980, as in H.R. 230 but un lik e H.R. (574, p ro vide s fo r dir ec t C on gressio na l 

ac tion . II.R . 10980, g ra n ts im m un ity fro m pros ec ution, dis m issa l of pe nd ing pr oce ed ings, an d rele as e fro m pr ison for d ra ft ev as ion an d in du ct io n ev as io ns or 

re fu sa ls , un de r th e M ilitar y Se lec tiv e Se rvice Act, an d for de se rtio n unde r th e 

Uniform Code of M ilitar y Ju sice . Th e prov isions fo r re le as e from pr ison an d dis ­

m issa l of pe nd ing proc ee ding s are inap pl icab le whe re th e ot he rw ise eligib le 

pe rson is se rv ing or is schedu led to serv e a senten ce fo r an offens e which is no t 

on e of th e abov e-n oted off ens es or is wan ted fo r tr ia l of an y ot her offense un less 

th e Pre si den t de te rm in es th a t th e pu blic in te re st wo uld be bett er serv ed by 

af fo rd in g th e pe rson th e be ne fit s of suc h re leas e or dism issa l.

3. Co nd iti on al Gra nts of A m nes ty

As in II.R . 19980, II.R. 10979 gra nts im m un ity fro m pr os ec ution, di sm issa l 

of pe nd in g pro ce ed ings, an d re le as e from pr ison fo r d ra ft ev asion, in du ct ion re ­

fu sa ls an d de se rtion. II.R. 2107 co nt ai ns si m ilar pr ov isions b u t doe s no t cover 

de se rtio n. 1 2 Unlike II.R. 109S0. the gra nts of im mun izatio n, etc . in II.R. 21(57 an d 

10979 are co nd iti on al. The benefits are av ai la bl e on ly if th e pe rso n ag re es to 

se rv e tw o ye ar s of m ilitar y or pu blic se rv ice.' Both II.R. 21(57 an d 10979 ha ve 

prov isions , si m il ar to thos e in II. R. 10980, co nc erni ng tlie in ap pl ic ab ility of b enefit s whe re th e pe rson is se rv ing a senten ce or is w an ted fo r tr ia l fo r an oth er 

offense.

4- Co nyrcssion al App ro va l of Pre side nt ia l A m nest y an d Pa rd on s

W hi le I I.R . 074 au th ori ze s tli e P re si dent to g ra nt am ne sy fo r viol atio ns o f S ta te 

or loc al law an d to mak e re st ora tions of citiz en s, th e bil l sim ply ex pres sed ap ­

pr ov al fo r th e Pre si den t's co nd iti on al or un co nd iti on al gra nt of am ne sty or 

m itig at io n of pu ni sh m en t fo r vi ol atio ns of Fed er al law or no nv iolent vi ol atio ns 

of m ilitar y law wh ich are mot ivated solely or part ly by di sa pp ro va l of United 

S ta te s par tici pat io n in th e Viet na m W ar. II. R. (574 also dec la re s th a t th e annulm en t of all leg al di sa dv an ta ge s, to th e ex te nt co ns iste nt witli nat io nal se cu ri ty 

an d do mes tic or de r, is in th e nat io na l in te re st of re st ori ng do mestic ha rm on y

1

 W ith re sp ec t to tlie dism issa l of pe nd in g proc ee ding s, H.R. 109 79, Sec. 4(c ) an d H.R. 

10980, Sec. 2(c ) specifically prov ide fo r such a dism issa l an d th is is ap par en tl y th e in te nt 

of Sec. 3(h ) of H.R . 216 7. al th ou gh it is in co mpletely w ri tten.

2

 I n H.R. 10979, th e co nd iti on of an ag re em en t fo r m il itary or pu blic se rvice ap pa re nt ly 

att aches to im m un iz at io n agai nst pr os ec ution fo r d ra ft evasion an d in du ct io na l re fu sa ls, 

but th e dra ft in g is am bigu ou s. I t is cl ea r th a t th e oth er benefits in H.R . 109 79, ar e condi tioned on an ag re em en t fo r such s e n ’ce.
27

and that it is an immunity of United States citizenship under the 14 Amendment 

to enjoy such annulment as the President may authorize. II.it. 2167, in addition to conditionally grantin g immunity from prosecution, dis­ missal of pending proceedings, and release from prison for draft evasion and induction refusals, also declares Congressional approval of the President’s g ran t­ ing a pardon to persons convicted of these offenses, including persons who have been released, provided that the person performs the required military or public service. H.R. 10979 has a sim ilar provision, but includes desertion as an offense for which a pardon should be granted. H.R. 10980, which has no requireme nt for the performance of military or public service, simply declares approval for a Preside ntial pardon of persons convicted of d raft evasion, induction refusal, and 

desertion.

5. Offenses Which Are the Subject of Amnesty

II.It. 236 gra nts autom atic, general amnesty for the violation of any of the following law s: (1) Sec. 12 of the Military Selective Service Act, 50 App. L’.S.C. Sec. 462, with respect to dr af t evasion, induction refusals, the willful fail ure to perform any other duty under the Act, or dr af t card mutilation or related offenses, (2) 10 U.S.C. Sec. 882, solicita tion of desertion, (3) 10 U.S.C. Sec. 885, desertion, and 886, absence without leave, (4) 10 U.S.C. Sec. 887, missing move­ ment of ship, aircraft or unit, (5) 10 U.S.C. Sec. 888, officer’s contempt toward officials, (6) 18 U.S.C. Sec. 1381, enticing desertion or harb oring deserters, and (7) 18 U.S.C. Sec. 2387, counseling or advising insubordination, disloyalty, mutiny or refusal of duty. This provision applies to offenses occurring between Aug. 4, 1JK54 and the date of the cessation of American militar y operations in Indochina as proclaimed by the President. In addition to the automatic grant of general amnesty for these specific offenses, the Amnesty Commission established by H.R. 236 is authorized to gra nt general amnesty for any other nonviolent or otherw ise morally justified violation of Federal, Sta te or local law which is substan tially motivated by opposition to United States involvement in Indochina. This provision applies to offenses occurring between Aug 5, 1964 and the date of the cessation of American militar y operations in Indochina as proclaimed by the 

President. As in the case of the Amnesty Commission in II.R. 236, H.R. 674 does not spe­ cifically enumerated the offenses for which the President may gra nt amnesty. H.R. 674 simply authorizes tlie President to gra nt amnesty or mitigation of punishment for violations of State or local law, which occurred between Aug. 4. 1964 and the date of the cessation of Vietnam hostilities, as proclaimed by the President, and which were motivated solely or partly by disapproval of United States participation in the Vietnam War. H.R. 674 also expresses approval of Preside ntial amnesty for violations of Fed eral law and nonviolent violations of military law which have been similarly motivated but there is no specific refer­ ence in the bill to any p articu lar statutory offense. II.R. 2167,10979, and 10980 do, however, refe r to specific statu tory offenses for which immunity from prosecution, a dismissal of the pending proceedings, and release from prison is granted. All thre e bills apply to dr aft evasion and induction refusals under the Military Selective -Service Act and II.R. 10979 and 10080 also apply to desertion under the Uniform Code of Military Justice. H.R. 2167 applies to offenses committed after Aug. 4,1964 and H.R. 10979 and 10980 apply to offenses committed between Aug. 4, 

1IH54 and Jan. 27,1973.

6. Effect of Amnesty

H.R. 236 provides that general amnesty, granted eith er automatically or by the Amnesty Commission, has the following effec ts: (1) the restoration of all civil, political, citizenship and prop erty rights which have been or might be lost, sus­ pended, or otherwise lim ited as a consequence of a violation covered by the Act, (2) immunization from prosecution for such violation, (3) expungement of crimi­ nal records rela ting to such violation, (4) the gra nt of an honorable discharge to a person who received an other than honorable discharge, solely or s ubstantially because of such violation, and (5) nullification of all other legal consequences of 

such violation.

The effect of amnesty granted under IT.R. 674 is much more limited than the effect under II.R. 236. II.R. 674 provides that a gra nt of amnesty shall resto re all civil or political rights that have been lost or impaired by reason of the violation for which amnesty is granted, unless the Presiden t shall declare otherw ise in his gra nt of amnesty. Apart from the provision on the effects of amnesty, the bill
28

also provides for mitigation of punishment. There are no provisions in II.It. 2167, 

10979 and 10980 on the effects of amnesty, as indeed these hills do not even use 

the term amnesty, except in the ir titles and, in II.R. 10979, in the name of the 

commission. Instead, the bills provide for thre e specific type s of benefits, i.e. 

immunity from prosecution, dismissal from pending proceedings, and release from 

prison.

7. Restoration of Citizenship

H.lt. 236, 10979 and 10980 provide tha t upon petition to any United States Distri ct Court, the court shall fully and unconditionally restore citizenship to any 

form er citizen who sta tes that he renounced his citize nship solely or partly 

because of disapproval of United States involvement in Indochina. H.R. 674 

authorizes the President to restore citizenship to any person who has relinquished 

citizenship solely or partly because of disapproval of United States participation 

in the Vietnam War. II.R. 2167 does not have a provision on the restoration of 

citizenship but does provide that no United States national shall lose his 

nationality under the Immigration and Nationality Act, Title III, ch. 3 (8 U.S.C. 

Sec. 1481-1489) or any other provision of law rela ting to the loss of nationality, 

unless and until he shall have obtained nationality or p ermanent resident status 

in another country.

8. Adm inistration

II.R. 236 establishes an Amnesty Commission which is to receive applications 

from persons seeking amnesty for nonviolent or otherw ise morally justified 

violations of Federal, Sta te or local laws which were substan tially motivated 

by opposition to United States involvement in Indochina. The commission is 

to determ ine if the violation was nonviolent or otherw ise morally justified and 

if the opposition was substan tially motivated by opposition to American involvement in Indochina. Upon finding that the offense was nonviolent or otherw ise 

morally justified and properly motivated, the commission is to grant amnesty. 

In grantin g amnesty, the commission is to determine if the amnestied offense 

was the sole or sub stantial cause of an other tha n honorable discharge and is 

to hear persons entitled to automatic amnesty who are aggrieved by the refusal 

of a military board to gra nt an honorable discharge.

II.R. 10979, like II.R. 236, also establishes an Amnesty Commission. The 

Commission is to receive application from persons seeking immunity from prosecution, etc. and make regu lations concerning the requirement of military or 

public service. However, it is the Act itself th at declares the immunity, etc. 

The Attorney General h as similarly limited functions in II.R. 2167. Additionally, 

the Secretary of Defense is authorized to publish and revise a list of acceptable 

public service employment. II.R. 674 and II.R. 10980 simply authorize the 

Attorney General to make rules and regulations to carry out the Act.

9. Judicial Remedies

In addition to the provision for the judicial restoration of citizenship, II.R. 236 

provides for judicial review of an adverse action by the Amnesty Commission 

and. in certain instances, a refusal by a milita ry board to gra nt an honorable 

discharge. H.R. 236 also grants the Dis trict Courts jurisdic tion over denials of 

the benefits and effects of amnesty and to stay rela ted Sta te court proceedings. 

With respect to judicial remedies, H.R. 10979 and 10980 have only the abovenoted provisions on the restora tion of citizenship.

Richard E. I srae l.

Legislative Attorney, American Laic Division.

Mr. K astexmeter. Before I call our first witnesses let me rem ind 

ou r witnesses of the time pressures we are under because of the larg e 

numb er of witnesses we will hear.

The complete wr itten sta tem ent of each witness will be included 

in its en tir ety in the record. In presentin g oral testim ony witnesses 

sho uld sum marize th eir for ma l sta tem ent and tak e no more th an 15 

minutes fo r th eir pre sen tation .

I am very please d to gree t as our first witness th is m orn ing Mr. Leon 

Ulma n. De puty As sis tan t A tto rney G ene ral, r epres entin g the D ep ar tme nt of Justice.

Mr. Ulma n, you m ay introd uce y our assoc iate and y ou may proceed.
29

TESTIMONY OF HON. LEON ULMAN, DEPUTY ASSISTANT ATTORNEY

GENERAL; ACCOMPANIED BY ROBERT W. VAYDA, CRIMINAL

DIVISION, U.S. DEPARTMENT OF JUSTICE

Mr. Ulmax. Mr. Chairman, members of the subcommittee, I have 

with me Mr. Robert W. Vayda, who handles Selective Service matters 

in the Criminal Division. He will be available for questions concerning prosecutive policy of the Department and any statistics tha t you 

need in addition.

Mr. Kastenmeier. Could you speak into the microphone so you 

can he heard more clearly?

Thank you.

Mr. Ulmax. Our views on the current bills before the committee 

are limited to legal aspects.

I might say the subject of amnesty is one in which legal views are 

not entirely in agreement. Accordingly, I think it would be helpful 

to examine the legal issues generally before turni ng to a discussion of 

the particular features of each measure. But my conclusion is th at it 

is quite difficult to say that Congress has the constitutional power to 

legislate amnesty. The term amnesty is not mentioned in the Constitution. The only relevant provision is to be found in Article II, Section 2, 

which states that the President shall have power to grant reprieves and 

pardons for offenses against the United States, except in cases of impeachment. The term "amnesty” is generally employed where a pardon 

is extended to whole classes rather than to individuals. Otherwise, the 

distinction between amnesty and pardon is solely of a philosophical 

interest than legal importance.

Amnesty has been granted by our Presidents on several occasions as 

a matter of grace. This occurred first by President Washington in 1795, 

by Presidents Jetferson, Madison, and Jackson in granting amnesty 

to deserters from the Armed Forces if they would agree to return to 

military duty and complete their obligations.

Prior to tiie period of Reconstruction, the President’s competence to 

grant amnesty was never challenged, and Presidents Lincoln and 

Johnson did so, stating that the Constitution gave them absolute discretion in these matters.

In 1869. the Judiciary Committee of the Senate submitted a report 

asserting that the President lacked such power, but nevertheless Presidents continued to grant amnesty, the latest occasion being that of 

President Truman in 1946.

It is now well settled that the President, acting pursuant to his constitutional pardoning power, is authorized to gran t full or conditional 

amnesties as well as pardons. It is also well established that Congress 

cannot interfere with the exercise of that power.

It is clear, therefore, th at the President as a matter of constitutional 

power, may if he so desires, gran t full or conditional amnesty to 

Vietnam war resisters who have violated Federal law.

On the other hand, the scope of congressional authority in this area 

is unclear at best. As far as we have been able to determine, Congress 

has never enacted in our long history a general amnesty law purpo rting to confer clemency by its own action, and therefore, the Supreme 

Court has never had the occasion to adjudicate the constitutionality 

of such a law.
30

Two cases in the Supreme Co urt have been cited to support such a 

view, Bro w ns . Walk er and The Laur a.

Pr of. Louis Lusky in his article, “Congressional Am nesty for W ar 

Res iste rs,” 25 Valid. L. Rev. 525 (1972), suggests tha t Br ow n v. Wa lke r

and The Lau ra ind icate Congress may have an amnesty power. Ho wever, we do not read those cases to th at effect. As C hie f Ju stice Ma rsh all 

said in Cohens v. 6 Wh eat. 264. “I t is a maxim not to be

dis reg ard ed t ha t gen eral expressions, in every opinio n, are to be taken 

in connection with the case in which those expressions are used.”

In addition , g ra nt in g immu nity to witnesses has occurre d in Br ow n

v. IlT/ZA’cr was given on a quid pro quo basis and is rea dily disti nguishable fr om the g race concept intr ins ic in amn esty . The statu te th at 

was involved in The L au ra left the exercise o f the pow er of remission 

who lly withi n the discre tion of the Secre tar y of the Treas ury. The 

penalty in th at case, the ref ore, was not rem itted autom atical ly by 

opera tion of a sta tute, bu t as a result of the dis cre tio nary act of the 

Secre tary of the Treasury, and indeed only if the Presi dent did not 

object. Discretionary acts of De partm ent heads are subject to the 

Pr esiden t's co ntro l.

To believe th at any amn esty power is vested in Congres s raises a 

very serious con stitution al issue, especially from the sta nd po int of 

certain of the bills und er discussion.

In the Supreme Co urt case of Un ited States v. Kle in it appeare d 

th at Congress in 1862 autho rized the Pr esiden t to offer pardo ns on 

such conditions as lie migh t think advisable. In 1863, Presid en t Lin ­

coln did exercise pardon au thority . By sta tute, Congres s subsequ ently 

dec lare d those pardo ns inad mis sible in evidence in certa in cases. The 

Supreme Co urt held th at sta tute unconstitu tional, and in the course 

of its opinion, the Co urt cha rac terized the 1862 law as merely a “ suggestion of pard on by Co ngress, fo r such it was, r at he r t ha n au thor ity ,” 

and observed th at Presi dent Lincoln in his ann ual message to Congress in 1863 info rmed it th at , and I quote : “T he Constitutio n au thor ­

izes the Execu tive to gr an t or withh old pardon at his own absolute 

discre tion.”

In other word s, as T read wha t the Presiden t said and wha t the 

Supreme Court said. Congress itself had no pow er in thi s reg ard .

Th e cou rts hav e never squ arely addressed the question whether 

Con gress is precluded from gr an tin g amn esty if the Presiden t has 

decided again st it or wheth er Congress may e xpand a gran t of Pr es idential amnesty, or even wh eth er Congress can extend amn esty , not 

only to persons aw ait ing prosecution, but also to offenders alread y 

convicted and sentenced.

Th e Kle in rat ionale stron gly suggests th at Congres s not only lacks 

the power to act whe re the Presiden t has exercised his pardon ing 

power, but also where the P resid en t h as decided not to gr an t executive 

clemency.

A fu rthe r area of con stitution al un certa inty is wh eth er eit he r the 

Congress or the Presiden t is autho rized to gr an t amnesty or pardo ns 

fo r State offenses, as some of these bills propose. Given tra ditio na l 

concepts of federalism and th e literal la nguage of the pa rdon ing po wer 

which is e xpressly lim ited to offenses ag ain st the U nited Sta tes, we do 

not believe th at the reach of Federal clemency pow er can encompass 

State offenders.
31

Tur ni ng now to the c urr ent bills, H ous e Concu rrent Res olution 144 

and Hou se Co ncurren t Res olution 385 a re iden tica l. Th ey e xpress th e 

sense of Congres s th at no pardo n, repriev e, or amn esty be enacted b y 

Congres s or exercised bv the Presiden t with respect to Vietn am war 

resisters. Altho ugh these reso lutions do not have the force or effect of 

a sta tute, they do serve to direct att en tio n to the con stitution al pr ob ­

lem. If this provisi on were enacted as a statutor y directive it would 

pu rp or t to prec lude the exercise of th e Presi dent of his c onstitution al 

pardon ing power. Th ere for e, it would be co nstituti onall y defective.

In contr ast, II. R. 674 leaves the decision wh eth er to gr an t amnesty 

esse ntia lly in the hands of the Pr esiden t, thus avo iding t his c on stitutio nal infirmity. A pa rt from the pro vision in the bill au tho riz ing the 

Presiden t to gra nt amn esty to State offenders, the rem ain ing p ortio ns 

of the bill, inc lud ing those res torin g the civil and political l ights of 

war resisters and the citizen ship of any of tho se who reli nquished th eir 

citizensh ip in disap proval of the Vietn am war, present a question of 

wheth er Con gress has any pow er to gr an t amn esty , and I dou bt th at 

it does.

II.R. 10080 and II.R. 10070 and II.R. 2167 are quite sim ilar. Each 

pro vid es fo r an amn esty on the conditio n th at the rec ipient eit her 

enl ist in the Arme d Forces or perfo rm 2 years of alternative public 

service. Both pro vid e th at pe rsons convicted and serving sentences f or 

dra ft evasion offenses are to be released and t he rem ain ing p ortion s o f 

their sentences excused if they acce pt sim ila r conditio ns. 'Phis fea ture 

is an obvious usurpa tio n of the Pr esiden t's pardon ing power and also 

interf ere s with the pow er of the c ourts with respect to sen ten cin g and 

pro bation . If Congres s is aut horized to release prisoners in this category what is to prevent the legisla tive bra nch rele asing other typ es 

of offenders? It is for thi s reason that the pa rdon ing pow er, certa inly 

with resp ect to convicted persons, mu st lie exclusively with the 

Presi dent.

II.R. 236, II.R . 3100, and II.R. 5195 are identical, and are s ubject to 

sim ila r objections. Th ey provide fo r unc onditional and autom atic 

amnesty for any person who has viola ted the la ws agains t d ra ft evasion 

and desertion and for amn esty to be g ranted by an Am nesty Com mission in oth er sit ua tio ns involving both Fe de ral and St ate law 

violations.

These gr an ts would exten d to those a lre ady convicted and sentenced 

as well as to those not yet prosecuted, the reb y certa inly in the form er 

respect i nv ading the P resid en t's pa rdon ing power.

Moreover, the bills also extend to State offenses, and fina lly, the 

scope of th e righ ts a tte mp ted to be restored with the g rant of amn esty 

appe ars too sweeping.

Th e inclusion of t he term “p rope rty rig ht s” is most tro ublin g. It is 

well settled that a gr an t of clemency can not affect rig hts that have 

been vested in oth ers directly throug h the exec ution of the judgme nt 

imposed for the offense or which have been acquired by oth ers while 

the ju dgme nt was o uts tan din g.

It is clea r t hat amn esty under these bills could not have the effect of 

div est ing others of th eir p rope rty rights.

There is also a se parat e and very substan tial constitu tio nal inf irm ity 

in II.R. 236, I I.R . 3100. II.R. 5195, and also in II.R. 10979. with r espect 

to the Amnesty Commission e stablis hed by th ese bills . The Com mission
32

is to be composed of five members, one a ppoin ted by the Preside nt and 

the o the rs by various Members o f Congress. The fun ctions o f the Commission wou ld not be merely to advise the Presiden t, but to affect the 

sta tus of the pers ons involved. Its members, there for e, would be executin g the laws and thu s perfo rm sovereign fun ctions of the Un ite d 

Sta tes. Consequently, they would be officers of the U nited State s in th e 

con stitution al sense a nd th ere fore, t hey must be ap po int ed in a m anner 

consistent with Article II, Section 2, Clause 2 o f the Const itution.

Un de r th at c onstitution al provision officers of t he U nited State s are 

to be appoint ed by the Pr esiden t by and with th e advice and consent 

of the S ena te. In the case o f “in ferio r officers,” Congress m ay au thor ­

ize the appo int me nt by the Presiden t alone, the court s of law or the 

heads of departm ents. The Co nstitu tion does not pro vid e for the ap ­

po intm ent of officers of the Un ite d Sta tes, othe r th an congressional 

officers, by Congress or Members of Congress. Accordingly, ap po intmen ts to the Amnesty Commission by Members of the Congress wo uld 

be cle arly constitu tio nally inv alid.

In sum, Mr. Ch air ma n, our ana lysis of thes e bills, othe r th an the 

sense of Congress reso lutio ns, discloses th at each con tains serious constitutio nal defects. Fo r this reason alone the De pa rtm en t of Justi ce is 

obl igated to oppose th eir enactm ent.

Air. Chairm an, th at concludes m y sta tem ent.

I will att em pt to answer such questions as mem bers o f the subcommittee would wish to put.

Mr. K astenmeier. Than k you, M r. U lman.

The legisla tion before us would restore the civil rig hts to certa in 

ind ivi duals convicted of crim es mo tivated by th ei r opp osition to the 

war. In your testim ony you sta te th at Congress can not act where the 

Presiden t has decided no t to g ra nt executive clemency because it w ould 

encroach upon the Pr esiden t’s power.

du st 3 or I weeks ago in this very subcomm ittee, th e J us tic e Dep ar tment testified on legislation whereby C ongress would give th e righ t to 

vote to ex-offenders. The J us tic e De partm ent at that tim e d id not take 

such a p os iti on : namely, th at such legis lation would e ncroach upo n th e 

Presiden t's righ t to gr an t th is executive clemency which would restor e a civil righ t.

I am wo ndering abo ut th at incon siste ncy, Mr. Ulm an.

Mr. U lman. I do not believe that it is an inconsistency . Re sto ring 

the r ight to vote, it seems to me, is no t a pard on, a nd th ere for e, I think 

the situati on s are d ifferent.

Mr. Kastenmeier. I n o ther w ords, is it your statem ent th at as pa rt 

of amnesty we could restore th e righ t to vote to all ind ivi duals affected 

and you w ould not object to that , I tak e it ?

Mr. V iaiax. I do no t believe th at the objection would be substan tia l, 

bu t I really have not tho ug ht about that aspect.

Mr. K astenmeier. A dd ition all y, you sta te th at C ongress ca nnot interfe re wi th the execution of criminal sentences fo r sim ila r reasons, 

but it seems to me C ongress has alw ays done that . T his Ju di ci ar y Com ­

mittee h as been asked to do it. We passed le gislation settin g the len gth 

of cri minal sentences. We have before us legisla tion whi ch would 

change the effect of parole determinations which certa inly will affect 

sentences, and in fac t, will hav e a mitiga tin g effect. So I fai l to see 

why we can act in one case and no t in ano ther.
33

Mr. U lmax. Well, you a re talk in g there abo ut sentenc ing, and m itiga tin g sentences, bu t I do no t re ga rd t hat as equ ivalent to a par don.

W ha t you are do ing here, it seems to me, is g ra nt in g in effect a pard on 

fo r past offenses. You are ju st pu ttin g the ind ivi dual in the position 

as tho ugh he ha d never com mitted an offense, whi ch I th in k------

Mr. Kastenmeier. There are some pro posals to th at effect.

Mr. U lmax. I th ink i t is quite diff erent.

Mr. K astenmeier. Bu t not completely.

I do not reca ll th at you discu ssed pro visions in at lea st two of the 

bills. II.K . 236 and Il.K. 674, which pro vid e th at it is an immu nity 

of Un ite d State s citizens un de r the 14th amendment to enjoy the 

annulment o f c ert ain legal disadvanta ges. 1 would like your comments 

on those pro visions ins ofar as these pu rp or t to remove any constitutio nal doubt as to wh eth er Congres s can act in th is ma tter.

Mr. Ulma x. I do no t believe th at the pri vil ege and immunities 

clause e xte nds to th at ty pe o f thing . I believe th e privilege and imm unit ies clause is sim ply a clause which relates solely to Fe deral rig hts 

of citizensh ip. I do no t see th at ------

Mr. K astexmeier. These rig ht s are pa rtia lly affected here as well, 

are they not?

Mr. Ulman. W ha t rig hts?

Mr. K astexmeier. Th e rig hts of citizensh ip. Th is is par t of the 

sub ject matter encompassed in the amnesty proposals.

Mr. U lmax. We ll, to the exten t t hat yo u w ould consid er—I thought 

th at the privilege and immu nities clause was designe d to reach State 

offenders ra th er than Federal offenders. The 14th amend me nt provide s th at no St ate shall make or en force any law which shall abr idg e 

the privilege s and immu nities of citizens of the Un ite d Sta tes .

Mr. Kastexmeier. One or two othe r questions before I yie ld to my 

colleagues.

I tak e it, Mr. Ulma n, you are car efu l to discuss the status of the 

legislation f rom a leg al sta ndpoint as you see it. You conscio usly make 

no sta tem ent other than legal, with resp ect to the sub stantive merits 

of these proposals. You make no judg me nt on those questions, is t ha t 

co rrec t?

Mr. Ulmax. Well, my sta tem ent is certa inly restr ict ed to that.

Mr. Kastexmeier. You may or may no t care to ans wer this question, bu t has the Justice De pa rtm en t presen ted to the Pr esiden t in 

recent mo nth s its views on this que stio n or has the Justice Dep ar tment been consult ed by the Pr esiden t on the question of amn esty ?

Mr. U lma x. My u nd ersta nd ing is t hat the Presid en t has not ch ang ed 

his position .

Mr. Kastexmeier. Tha t is yo ur un de rst an din g?

Mr. Ulma x. Tha t is rig ht.

Mr. Kastexmeier. Tha nk you, Mr. Ulma n.

I yie ld to the gen tlema n fro m Massac husetts, Mr. Dr ina n.

Mr. Drix ax. T ha nk you very much, sir, fo r yo ur testimony.

It wou ld ap pe ar to me th at the De pa rtm ent of Justice may well 

have said som eth ing to the co ntrary in the recent pas t. Th ere was a 

bill proposed by Mr. Bevil th at went to the House Armed Service s 

Com mittee. Thi s was a concurrent resolution , th e b ottom line of which 

sa id: ‘‘Tha t it is the sense of Con gress th at no pardo n, repriev e, or 

amnesty be ena cted by the Con gress or exercised by the Pr esiden t
34

with respect to pers ons who have vio late d the Military Serv ice Ac t,” 

and so on. The De partm ent of Justice, un de r date of May 7, 1973, 

said it had no objec tion to t he en actment of th is clause. If I may read 

it, th is is specifically co ntrary to wh at you are telli ng us tod ay. You 

say in May here, over the sig na ture o f Mike McKevitt, that you have 

no obje ction to Congres s actin g in the are a when Congress would, 

iby a con curren t resolution , deny all amn esty , and now you are tell ing 

us you do not feel we have any power at all. He re is th e line. “ In light 

<of the Ad minist ratio n’s view on amn esty as expressed by the Pr es iden t. we have no objection to the passage of House Co ncurr ent Resolu tio n 86 at thi s tim e.”

Wo uld you care to com ment ?

Mr. Ulman. Yes. Fir st of all, I had no know ledge of th at letter.

Secondly, my view is t hat Congress does no t have the pow er of gr an ting amnesty. Bu t wha t you a re m entionin g is a concurr ent resolution 

again st amnesty. Bu t as I exp lain ed earlier, a concurr ent resolu tion 

merely expresses the sense of Congress and does not have the force 

of law.

Mr. Drinan. Wh en you say you have no knowledge of th at letter, 

you s peak like the Pope or like the State De pa rtm en t when you say on 

page 6 here, “We do not read those cases.” Wh o is “we” ? If you have 

no t heard of the let ter who is “we” ?

M r.U lman. The I )e pa rtm en tof Ju stice.

Mr. D rinan. Well, tell us m ore. Ha s t he At torney Ge neral appro ved 

yo ur testimony ?

Mr. Ur .man. I assum e he has. He has not s aid th at he disappro ved it, 

the ref ore , I assume he has appro ved it.

Mr. Drinan. I assume th at he appro ved Mr. McK ev itt’s p osition, 

too.

Mr. U lman. I do not know, bu t I wou ld assume so.

Mr. Dkina n. Nobody sees the co ntr adiction ?

Mr. Ulman. I do no t see—I would no t say th at on the b asis of the 

two letters the re is a con tradiction.

Mr. Drinan. Th ere is or there is not a contradiction . You can not 

have them both ways. I t is like being preg na nt, you are or you are not.

Mr. Ulman. I can say this with the utm ost confidence : I do not 

believe I am pregnant.

Mr. Drin an. I s t he re a contr adiction , fo r the reco rd, say yes or no, 

betw een the lette r of the De pa rtm ent of Ju sti ce of May 7 which the 

Atto rney Ge neral saw and you r testimony ?

Mr. U lman. On the basis of wh at you tell me, I would agree th at 

there appears to be a contradi ction, bu t in any event the later testi ­

mony would seen to resolve th e matter.

Mr. D rinan. We a re su ppo sed to take the lat te r p osition j us t because 

it is later , even th ough it is con tradic tory.

In Br ow n v. you say th at the op erating sentence, the key

sentence, is dictum. How did you reach th at conclusion ?

Mr. U lman. I r each ed th at conclu sion sim ply because t he basic issue 

before t he court was wheth er or not Congress could g ra nt im mu nity in 

re tu rn for testim ony, and the question of c ongressional p owe r to g ra nt 

amnesty is, I thi nk, quite different.

Mr. Drina n. Did Prof. Lou is Lusky in his articles th at you quote 

say th at the pa rti cu lar very str ong sentence in question was dictum ?
35

Mr. Ulman. I do not recall whether he said it was dictum, but my 

recollection is that his view was merely that it indicated that Congress 

had the power. He did not say Congress has the power.

Mr. Drinan. But when you say that we do not read these cases to 

that effect, I assume you have some constitutional experts who have 

written cont rary to Professor Luskv. Who are they ?

Mr. Ulman. The expert is myself.

Mr. Drinan. Would you want to give us your credentials as an 

expert ?

Mr. Ulman. Yes, I have been in the Department of Justice for 

30 years and have been handling constitutional questions for tha t 

length of time. I am Deputy Assistant Attorney General in the Office 

of Legal Counsel, one of whose principal functions is to consider 

constitutional questions.

I th ink from my standpoint, my credentials are as good as Professor 

Lusky’s.

Mr. Drinan. Have you testified before on amnesty?

Mr. Ulman. Xo, I have not.

Mr. Drinan. Have you ever written on amnesty?

Mr. Ulman. Xo, I have not, other than my prepared statement.

Mr. Drinan. Have you any credentials in the field of amnesty?

Mr. Ulman. Yes, my study of the materials.

Mr. Drinan. What other constitutional experts agree with you?

Mr. Ulman. I do not know of any who do agree with me, nor apart 

from Professor Husky, any who disagree with me.

Mr. Drinan. Thank you very much.

I yield back my time.

Mr. Kastenmeier. The gentleman from New York, Mr. Smith.

Mr. Smith. Xo questions.

Mr. Kastenmeier. The gentleman from Iowa, Mr. Mezvinsky.

Mr. Mezvinsky. Mr. Ulman, I appreciate your testimony.

For the record, you point out in your statement on page 3 that 

President Truman created, by Executive order, an Amnesty Board. 

Is there any move within the administration or any recommendation 

or thought concerning the issue of amnesty tha t an Amnesty Board 

should be established as an initial step?

Mr. Ulman. I am not aware of any such thing.

Mr. Mezvinsky. Would you have any comment as to whether that 

should be done?

Mr. U lman. Xo. I have no comment on that. I do not regard that 

as my function.

Mr. Mezvinsky. Chairman Kastenmeier indicated when he raised 

the point concerning your statement tha t it is basically a legal argument and that it has nothing to do with the substantive merits. I f the 

President would change his mind on the whole question of amnesty, 

do you think you would have the same position today?

Mr. Ulman. On what question?

Mr. Mezvinsky. If the President would say that I think we should 

consider this issue and deal with it and somehow attempt to resolve 

it, would you have the same position you are giving us today on the 

substantive basis?

Mr. 1 lman. Congress should deal with it or he should deal with it?

Mr. Mezvinsky. Eith er one should deal with it.

Mr. U lman. If lie should deal with it, I think there is no question 

tha t he has the constitutional authority to deal with it. If he should
say Congress should deal with it, I would think the constitutional 

questions remain. I would not expect him to say that.

Mr. Mezvixsky. I) o you think he should deal with it, Mr. Ulman? 

Mr. Ulman. That is beyond my competence.

Mr. Mezvixsky. Again, have there been any recommendations, any 

memorandums, any papers directed to the President or within the 

Department on the substantive issue of dealing with the question’of 

amnesty ?

Mr. Ulmax. I think there are a number of prior reports that the 

Department has submitted which indicate that they are opposed to the 

granting of amnesty.

Mr. Mezvixsky. Not on a constitutional basis ?

Mr. Ulmax. No, on the merits.

Mr. Mezvixsky. Let us get it clear. On the merits constitutionally 

or on the substantive or political reason ?

Mr. Ulmax. 'On the substantive aspects.

Mr. Mezvixsky. Thank you, Mr. Chairman. No further questions.

Mr. Kastenmeier. Thank you. Mr. Ulman, for your testimony this 

morning.

My only comment would be that this committee, the House Judiciary 

Committee, and the Congress have been confronted in recent times 

with a series of questions for which precedent in terms of power, congressional and executive, have sometime been uncertain or in conflict. 

While we accept your testimony as representing the point of view of 

the Justice Department, it seems to me, viewed in terms of murky 

precedent and what might be a compelling need to act. we will have to 

independently come to a judgment as to whether or not we will in fact 

act in this area.

The Chair submits for inclusion in the record correspondence between this committee and the Department of Justice relating to 

amnesty.

[The correspondence referred to follows:]

Department of J ustic e, 

Washington, D.C., Maroh 1, 297T

H on . Robert W . Kasten meier,

Chairman, Subcommittee on Courts, Civil Liberties and the Administration of

Justice, U.S. Senate, Washington, D.C.

Dear Mr. Chairman : This is in response to your inq uir y of Fe brua ry 15, 1974. 

req uesting s ta tis tic al informati on on D ra ft L aw viola tors, as well as any increa se 

in cas e load, which may hav e been experienced by the De partm ent since the 

term ina tio n on Ju ly 1, 1973, of the decade old policy which perm itted ce rta in 

del inq uen ts to sub mit to induction in li eu of prosecution .

In resp onse to your specific inq uiries, I have pro vided answ ers in the ord er 

in which the in quirie s were raise d.

1. De partm ental stat istic s reflect th at the following ind ivi duals were convicted 

of dra ft law violation s du rin g the fiscal years in dic at ed : 1963, 295; 1964, 243; 

1965, 256: 1966, 366; 1967, 789; 1968, 884 ; 1969, 959 ; 1970, 1036; 1971, 1085 ; 1972, 

1676 ; 1973, 1093; 1974,1

 4S5.

2. The follo wing is a stat istic al sum mary by fiscal year of ind ivi duals refer red 

to th e vario us United States Attorney s, nation wide, as D ra ft Law de lin qu en ts: 

1963, 11,793; 1964, 13.589; 1965, 13,661 ; 1966. 13,835; 1967. 19.774: 1968. 21.331: 

1969, 27,444; 1970, 26,475; 1971, 25,504; 1972, 20,091; 1973, 13,278; 1974,1

 2,742.

3. At the end of calen dar ye ar 1973, there wer e 5.132 o utsta nd ing indictme nts 

ag ains t Selective Service del inquen ts. It is estim ate d th at of this num ber, 4,600 

ind ivi du als a re fugitives.

1

 Firs t 6 months of 1974.
4. The sta tistical information maintain ed by the Department does not contain 

a breakdown as to the natur e of the violation reported by the United States 

Attorney. However, the General Counsel of the Selective Service System has 

provided us with what information he does have available on these violations. 

During calendar year 1972, there were Sod individuals reported to United States 

Attorneys, nationwide, for nonregistration or late reg istration ; during calen dar 

yea r 1973, 3,492 individuals were reported for these offenses. Selective Service 

does not have stati stics for p rior years.

5. There has been a slight increase in the number of cases during the six-month 

period since the term ination of the Departm ent’s prosecutive policy on July 1, 

1973, as compared with the preceding six months.

There were 548 trials between July 1, 1973 and December 31, 1973, and 507 

trials between Jan uary 1, 1973 and Jun e 30, 1973. Since July 1. 1973, there has 

been a decrease in the tota l number of indictme nts obtained as compared with 

the preceding six-month i>eriod. Between July 1, 1973 and December 31, 1973, 

879 indictments were returned, whereas between Jan uary 1, 1973 and Jun e 30, 

1973, 1,713 indic tments were returned. Although there has been an increase in the 

number of tria ls, and a converse decrease in the number of indictments since 

July 1, 1973 when the autho rity to induct expired and the Departm ent’s policy 

of offering defendan ts the opportunity to accept induction in lieu of prosecution 

term inate d, I do not feel that these sta tistics represen t a definitive trend because 

of the short period involved.

I trus t that the foregoing will be of assistance, and if I may be of any service, 

please let me know.

Sincerely,

Henry E. Petersen, 

Assistant Attorney General.

House of Representatives,

Subcommittee on Courts,

Civil Liberties, and the Administration of J ustice,

of th e Committee on the J udiciary,

February 15, 1974.

Hon. Henry E. Petersen,

Assistant Attorney General, Criminal Division,

Department of Justice, Washinyton, D.C.

Dear Mr. Petersen : The Subcommittee on Courts, Civil Liberties, and the 

Adm inistration of Justice, of the House Committee on the Judicia ry, has scheduled public hearings for March 7 and 8 on several measures rela ting to amnesty 

for draft resiste rs and military deserters.

In order that the Subcommittee may be informed fully on the scope of the 

proposed legislation, I would apprecia te your supplying us with answ ers to the 

following question s:

1. How many individuals have been convicted of Selective Service violations 

in each year since 1963?

2. IIowT manj’ individuals have been referre d to the Departm ent of Justice for 

prosecution as violators of the Selective Service Act in each year since 1963?

3. How many indictments for violation of the Selective Service Act are now 

pending?

4. Since the term ination of induction autho rity on July 1. 1973, has there been 

an increase in the number of persons reported to the Department of Justice for 

fail ure to register? Please supply figures on an annual basis of such referrals 

for failure to register since 1963?

5. Has the term ination of the Departm ent’s autho rity to offer defe ndant’s the 

opportunity to accept induction in lieu of prosecution resulted in an increas e in 

the number of indictments and tr ial s of Selective Service violators?

I would appreciate hearing from you not lat er than March 1, 1974.

Sincerely yours,

Robert W. Kastenmeier, Chairman.

Mr. Kastenmeier. Thank you, Mr. Ulman.

Mr. Ulman. Thank you.

Mr. Kastenmeier. Our next witnesses this morning represent the 

American Civil Liberties Union, Ilen rv Schwarzschild, director of 

the project on amnesty; and Mr. Arlie Schardt. Mr. Schwarzschild
38

is well known and lias been of assistance in arran ging for some of the 

witnesses to appear before this hearing. Mr. Schardt is associate 

director of the American Civil Liberties Union. lie is well known to 

this committee, and he has recently coauthored a book entitled ‘‘Amnesty? the Unsettled Question of Vietnam.'’

Gentlemen, I welcome you here and you may proceed.

TESTIMONY OF HENR Y SCHWARZSCHILD, DIRECTOR, PROJECT

AMNESTY, ACLU FOU NDATION ; ACCOMPANIED BY AR LIE

SCHARDT, ASSOCIATE DIRECTOR , ACLU, AND COAUTHOR, “AMNESTY, TH E UNSETTLED QUESTION OF VIET NA M”

Mr. Schwarzsciiied. Thank you, Mr. Chairman.

I am grateful to the committee for having invited the American 

Civil Liberties Union to present its views on the issue of amnesty.

For over 50 years, since its very founding, the American Civil Liberties Union has pleaded for amnesty for those who have come into 

conflict with national war policies and wars, with draft, and military 

laws. In its more recent consideration of the subject of amnesty, the 

Board of Directors of the American Civil Liberties Union adopted a 

policy resolution, dated February 20, 1073, which reads as follows;

Those who face or have suffered criminal or adm inistra tive penalties for nonviolent acts of evasion or resistance to the draft or to the military or to the war, 

involving violations of laws and regulations, including especially the selective 

service law and the Universal Code of Military Justice, and have done so during 

the era of the War in Southeast Asia, should be grante d a full and unconditional 

amnesty.

The country has finally been able to bring some aspects of the war in 

Southeast Asia to a close. We have begun, after a fashion, to make 

peace, with our former enemies in Hanoi, Peking, and Moscow. Is it 

not time that we also make peace with our sons, with ourselves? Must 

tha t ‘‘peace of healing,” of which we heard at the time of the cease-fire 

agreements, not also mean the healing of the wounds th at we inflicted 

upon our own citizens? Is it not time to stop making victims in the 

context of that catastrophic experience called the Vietnam war? We 

have brought home the prisoner's of war and the wounded, and we 

have reunited with their families the men who fought that tragic war 

for us. Must we not also now reunite with their families and with their 

country the men and women who have accepted many years of severe 

hardship out. of the conviction that the war was not in the interest of 

our country ?

We join in the concerns expressed recently by a group of distinguished American citizens in speaking about amnesty:

Can Congressmen and members of th e adm inistration, both present and former 

ones, Who put us into the war and who kept us in it so long, have it in tlieir 

hearts to absolve themselves while they hu rt these young men?

Can those Congressmen who opposed the war, in the way the public empowered 

them to do, want to hu rt those powerless men who opposed the war in the only 

ways they could or knew how, men who in the process helped create and sustain 

th at public disgust with the war which finally gave some success to Congressional effort to end it?

We believe that Congress and the Presiden t are, in fact, fully free to act for 

amnesty, and that they cannot rightfully claim to be held back by constitu ents’ 

pressures. We believe amnesty, as was segregation in the South, is an issue 

wherein statesmen would not trade on fears but can, and therefore should, lead.
39

We believe th at the i>eople will respond helpfully to forthrigh t leadership, as did 

people in the South when segregation was outlawed. We believe th at if Congress or the President will give the American people tlie opportunity’ to be generous and just, the Nation will be so. We ask for that opportunity. Does this nation, that was established to “form a more perfect union’’ and to “insure domestic tranquility,” not want to heal itself? Do we not 

wan t to take this chance on justice? There are few acts a government can decide upon that clearly and imme­ diately benefit individuals ; amnesty would be one. We think it would be even more. We would be saying to ourselves t ha t we now p ut the Vietnam war behind us, with its terr ible freig ht of bitterne ss and recrimination, and of corruption and bru tality too. We would signal a decisive turnin g away from the darkness of the war years, and toward rebuilding and restoring and healing, both here and, as we are morally bound to do, in Indochina. We also would be affirming to our­ selves that America has no time or need for vengeance against ourselves, and especially not aga inst our youth. We would, instead, be welcoming the retu rn, as free members of a freer society, of young men who can give much to the futu re— 

theirs and ours and our c ountry’s.

Tt will be useful, I trust, if I address my remarks to the historical and human context in which the American Civil Liberties Union de­ mand for amnesty is made, to some of the constitutional and legal issues presented by amnesty, to the categories and numbers of people who would be affected by a universal and unconditional amnesty, to why we believe that only an amnesty tha t is both universal and uncon­ ditional will meet the test of political justice and human decency, and finally to the problem of what is to be said to the understandable but erroneous response of those who believe mistakenly that an universal and unconditional amnesty would destroy a lawful and orderly so­ ciety or would dishonor the millions of men and women who served their country in the war in compliance with the law. The U.S. "Government’s war in Southeast Asia tore up the countries and peoples of Indochina for an entire decade. It wreaked enormous havoc also in our own country. The war divided our society, deepened our bitterness, aggravated our violence-prone disposition, diverted our attention and resources into destructive channels, and forced millions of young men to choose between either obedience to the law or their own sense tha t this was a useless war in which to kill others or to be 

killed. The war imposed its hurt and tragedy very broadly, if not equitably, on the young generation of Americans, the millions of men of dra ft 

age during tha t terrible decade. What is often ignored is that the overwhelming majority of men who were of military age during the Vietnam era did not serve in the military. It is simply factual poppycock to suggest that everyone gave 2 years of his life to the country in that troubled period of our history, and that, therefore, the war resisters should not get off scot- free. Fewer than 11 percent of the d raftable manpower pool was ever drafted. Millions of men found quasi-legal avenues of escape from the draft, the military, and the war, a war in which hardly anyone wanted to fight. Almost every young man whose parents were rich enough to send him to college and get him a 2-S deferment, escaped the draft ; the lottery protected many of the others. Men by the tens of thousands hid out from the war in medical and psychiatric deferments, in tech­ nical and athletic excuses, in the ministry, the Peace Corps, in the teaching and other professional enclaves. Indeed, the very KOTC
40

and the National Guard were havens from the battlefield of Vietnam 

for thousands. By and large, it was left to the ill informed and the 

luckless to fight this dirty war for us.

The vast majority of the m ilitary manpower came from a last two 

categories, and these were in greatly disproportionate numbers from 

among the poor, the ill educated, and the minority communities. It 

is men from the “lower status” elements of our society (to use Dr. 

Kenneth B. Clark’s phrase) who were drafted in greater numbers, 

were assigned in greater numbers to the frontline fighting units and 

to unskilled and dead-end military jobs, they were wounded and killed 

in greater numbers, abused by the system of military discipline and 

justice, and finally ejected from the military machinery in greater 

numbers with less-than-honorable discharges and other “bad paper” 

tha t blight the rest of their lives. This country owes redress to them 

as well as to the war resisters.

The constitutional power of the President to grant amnesties by 

Executive proclamation is founded on the clause in Article I I, Section 

2, tha t entitles the President “to gran t reprieves and pardons for 

offenses against the United States, except in cases of impeachment.” It 

has been used repeatedly by Presidents throughout our history, from 

President George Washington to President Ila rry Truman. The 

Library of Congress, Legislative Deference Service, has compiled the 

particulars of the 17-or-so amnesties th at have been granted in our 

troubled history. Our historical experience and the U.S. Supreme 

Court agree that the Congress of the United States also has a concurrent power to enact amnesty legislatively (see Harvard International Law Review, vol. 13, No. 1, winter 1970), which, if the 

committee is not familiar with, I shall gladly submit to the committee 

for its examination.

Amnesty may be defined as a “discretionary decision by a sovereign 

government not to raise the issue of whether a class of its citizens 

have violated the laws in a political conflict.” Amnesty is, in its nature, 

not forgiveness nor approval or ratification of the acts being amnestied; 

it simply is the means, hallowed by our law and tradition, by which 

the society decides to wipe out its formal, legal memory of the acts. 

It is a measure of social reconciliation afte r severe political conflict. 

Amnesty today would not necessarily be a ratification of war resistance or dra ft refusal or desertion, any more than a pardon for a 

convicted felon suggests approval of the crime of which lie stands 

convicted. It is a way of ending conflict and pain and hurt where 

there has been enough of tha t already.

The American Civil Liberties Union urges that all penalties, whether 

criminal or administrative in nature, tha t arise from nonviolent acts 

of resistance to the draft, the military, and the war, be extinguished 

by a universal and unconditional amnesty, including at least the 

following:

(1) Draft violators: Over 7.500 men were convicted of draft violations committed during the Vietnam era. In many instances, they 

were harshly sentenced by Federal courts as though they represented 

a. danger to the society more acute than criminals of violent disposition and self-seeking criminal conduct. Draft violators continue to 

be vigorously prosecuted and sentenced even today, notwithstanding 

the cease-fire and the end of inductions under the draft. The number
41

of ind ictme nts pe nding fo r such d ra ft viola tions fluc tuates b ut remains 

very substan tial even tod ay. Th e process of iden tif ying dra ft de lin ­

quent s in the files of the Selective Serv ice System continues, and so 

(lo referra ls of such delinq uen ts to the De partm ent of Ju sti ce fo r 

prosecutio n. D ra ft delinquency , we mu st remember, is the failu re to 

no tif y the dra ft boa rd of a cha nge of address, fo r exam ple. The 

punis hm ent for dra ft violations , we mu st also remember, is 5 years 

and a $10,000 fine on each coun t. Li terally hu ndred s of tho usands of 

young men in th eir teens and twe ntie s are in jeo pardy of pro secutio n 

un der the dra ft law (and will be un til the sta tute of lim ita tio ns run s 

out fo r them ). These are the men who sim ply did no t reg ister when 

the y turned 18. It is difficult to say jus t how many men escaped the 

wa r an d the dra ft by th at means, bu t it is useful to realize th at the 

Di rec tor of the Sele ctive Serv ice Sys tem reporte d las t year th at , in 

his jud gm ent, in excess of 10 percen t of the men who became 18 in 

the c ale ndar year 1972 di d no t r egister. Since over 2 million men reach 

th at thr eshold every year, th at means 200,000-plus dra ft vio lators in 

th at sing le year of 1972 alone.

As the com mittee is awa re, the De pa rtm en t of Defe nse rep orted 

almost 500.000 cases of des ertion fro m fiscal year 1965 thro ug h early 

fiscal 1973. H al f a million men! W ha t testim ony to a dem oralize d 

m ili tary in a div ide d cou ntry. Obviously, most of those deserters 

returned v olun tar ily or by appre hen sion, the n um ber o f deserters who 

rem ain a t large is fa r sm aller. T he numb er of deserters at la rge , accor ding to Defense De pa rtm en t figures, has hov ered aro und the 30,000 

ma rk for several years. But these official figu res are themselves subject 

to conside rable dou bt. As was shown bv Rober t Mus il in his article, 

“T he Tru th Abou t D ese rters” (The Natio n, A pr. 16,1973), the D ep ar tment of Defense sta tistic s issued an nu all y du ring the Vietn am years 

ind ica te a to tal numb er of abo ut 135.000 deserters a t larg e. The ref usal 

of the De pa rtm ent of Defe nse to expla in the discre pan cy betw een 

th ei r ann ual personel repo rts and the figures now being used gives 

rise to melancholy spe cul ations abo ut a “body count” which falsifies 

the tr uth and refuses to acco unt for some 100,000 young Am erican 

men who were in the con trol of the U.S . military forces. D ra ft violators ten d to be men— most oft en white, middle class, and well 

edu cated—who decided in good tim e th at they could no t serve the 

war. Deserters are men who had less op po rtu nity to form ula te ahe ad 

of tim e th ei r person al or moral or ideological attit ud e, and who 

lea rne d from the real- life experience of the deh um aniza tion, the 

opp ression, the racism , and the ins anitie s of the wa r in Vietnam.

Th ey are in more striki ng prop ortio n men fro m among t he poorly 

edu cated, the economically less well off, and the minority.

The th ird catego ry, the exiles. By the best judg men t we can make 

and the figures are very difficult indeed to be precise about, there are 

some where in the neigh borho od of 30,000 to 50,000 y oung Am erican 

war resiste rs in exile abroad.

Ove r the yea rs. I have ha d fa irly sus tained con tact with the exile 

com munity of wa r resister Am eric ans, pa rti cu la rly in Ca nada where 

most of them reside, and hav e been told th at exile is by and lar ge a 

dis tressi ngly oppress ing form of resistance and does not constitu te 

acts of. o r o f a sig nally courageous w itness to the app allin g experie nce 

of the wa r an d to the need to end it.
42

Mr. Kastenmeier. Mr. Schwarzschild, you only have a minute or 

two left. Does Mr. S ch ardt wish to conclude ?

Mr. Schardt. I would rath er have Mr. Sch warzschi ld finish.

Mr. Schwarzschild. Th ere are, as you have heard , some almost 

500,000 veterans of the Vie tnam era wi th less-than -honorable dis ­

charges. Alm ost all of th em issued ad ministrativ ely, not as a res ult of 

court -m art ial , but as a res ult of convict ion of even military offenses. 

Ag ain , they pr im arily are from the lo wer elements o f our society and 

the y are in effect being punished doubly for t hat te rri ble e xperience o f 

the war. First, by the serious disloca tion and dis orien tat ion of thenlives, and now for th e re st of th eir careers and lives.

The re are also some ha lf million men who were co urt -m art ial ed d uring th e Vietnam er a purel y fo r m ilitary offenses. We believe t hat those 

felony records, whi ch in effect is wh at the y are, ought to be expu nge d 

by univers al, unc onditional amnesty.

Let me say finally to the com mittee, tha t the amnesty th at we believe 

is the just and fa ir act for this country to proceed with, must be un iversal, m ust app ly to all those cases o f people wit hout distinction, and 

mu st be u nco nditional . It m akes no sense in the fu ture intere st of thi s 

country to impose addit ion al pun ishme nt to those ye ars th at these men 

and women have spe nt eit he r in the military or un de rgr ound in their 

own cou ntry or in priso n or in exile. It seems to us th at the only 

thou gh ful, generous, h um an, an d politically jus t m easure is to let them 

re tu rn to their own cou ntry, their fam ilies, and their careers , with 

honor and witho ut the sense th at they have been gu ilty of acts which 

are socially des tructive, which they clearly were not. They are the men 

who refu sed to com mit the violence of the Vietn am era , and it seems 

to me incu mbent upo n this country to enact as pr om ptly as possible a 

measure gu aran teeing uncon ditiona l amnesty for those who suffered 

the disadvanta ges and disabilities of the wa r by reason of their war 

resistance.

Mr. Kastenmeier. Tha nk you for a most eloq uent statem ent, Mr. 

Schwarzschild. Y our state me nt will ap pe ar in the reco rd in its en tire ty.

[The sta tem ent follow s:]

Sta teme nt of H enry Sch wa rz schild, D irector. P roject on Amn esty, A merican

Civil Liberties Unio n F oundation

Mr. Chairman, members of the subcommittee, my name is Henry Schwarzschild ; I am the d irec tor of the projec t on am nesty of the American Civil Liberties 

Union. I am accompanied today by Mr. Arlie Schardt, Associate Director of the 

Washington Office of the American Civil Liberties Union. Mr. Schardt is the 

coauthor with Senator Mark O. Hatfield of Oregon and William A. Rusher of 

the magazine National Review of a new book entitled “Amnesty, the Unsettled 

Question of Vietnam.”

I am grateful to the Committee for having invited the American Civil Liberties 

Union to p resent its views on the issue of amnesty. I appeared on this question 

precisely two years ago before the Senate's Subcommittee on Administrative 

Procedure and Practice, chaired by Senator Edward Kennedy. The country and 

the world have undergone such radical changes that the subject of amnesty 

could not possibly he more ripe for action by the United States.

For over fifty years, since its very founding, the American Civil Liberties 

Union has pleaded for amnesty for those who have come into conflict with 

national war policies and wars, with draft and military laws. In its most recent 

consideration of the subject of amnesty, the Board of Directors of the American 

Civil Liberties Union adopted a policy resolution (dated February 20. 1073) 

which reads as follows :
43

“Tho se wh o fa ce or ha ve su ffered cri m in al or adm in is tr ati ve pe nal ties fo r 

no n-violen t ac ts of ev as ion or re si st an ce t o th e d ra ft or to th e m ilitar y or to th e 

w ar , invo lving viol atio ns of laws an d re gu la tion s, in cl ud in g espe ciall y th e sel ecti ve se rv ice law an d th e U ni ve rs al Cod e of M ilitar y Ju st ic e, an d ha ve done so 

duri ng th e era of th e W ar in Sout he as t Asia , sh ou ld be gra nte d a fu ll, broa d, an d 

un co nd itio na l am ne st y. ”

I t will be us eful. I tr u st , if I ad dr es s my re m ar ks to th e his to ri cal an d hu m an 

co nt ex t in which th e ACLU de man d fo r am ne sty is made, to som e of th e co nst itu ti onal an d lega l issu es pr es en te d by am ne sty, to th e c at eg or ie s an d nu m be rs of 

people who wou ld be affecte d by a un iv er sa l an d un co nd itio na l am ne sty, to wh y 

we be lie ve th a t only an am ne sty th a t is bo th uni ve rs al an d un co nd itio na l will 

mee t th e te st of po litica l ju st ic e an d hum an decency, an d fin ally to tl»e prob lem 

of w hat is to be sa id to th e un de rs ta nda ble bu t erro ne ou s resp on se of thos e who 

be lie ve m ista ke nl y th a t an uni ve rs al an d un co nd itio na l am ne sty wo uld de stro y a 

la w fu l an d or de rly socie ty or wo uld di sh on or th e mill ions of me n an d women 

wh o served th eir c ou nt ry in the w ar in com plian ce w ith th e law.

CO NT EX TU AL CO NS ID ER ATIONS

The United S ta te s Gov ernm en t's w ar in South ea st As ia to re up th e co un tries 

an d peop les of In do ch in a fo r an enti re de ca de . It w re ak ed en ormou s ha vo c als o 

in ou r ow n co un try. The w ar divide d ou r so ciety , deepened ou r bitte rn es s, aggra ­

va te d ou r violence-prone disp os iti on , di ve rt ed ou r att enti on an d reso ur ce s in to 

des tr uct iv e ch an ne ls, an d forced mill ions of yo un g me n to choose be tw ee n ei th er 

ob edien ce to th e la w or th e ir own sense th a t th is was a us eless w ar in wh ich to 

ki ll ot he rs o r to be k illed.

Th e w ar im posed it s h u rt an d trag ed y ve ry broa dl y, if no t eq uita bly, on th e 

yo un g ge ne ra tion of American s, th e mill ions of men of d ra ft ag e duri ng th at 

te rr ib le decade. The pri m ar y victim s we re, of co urse, th e men wh o died o r were 

wo un de d in the w ar . To them an d to th eir fa m ilies, an d inde ed to th e eigh t 

mill ion ve te ra ns , o f th e Vietnam er a th is so ciety ow es fa r more re dr es s th an it 

ha s even at te m pt ed to prov ide. We ha ve become a na tion th a t ev iden tly co ns id ers 

an ad eq uat e lev el of me dical, ed uc at io na l an d socia l serv ices to th e vet er an s an 

in flat io na ry da nge r but th e pilin g up of addi tion al nu cl ea r wea po ns an d B -l 

bo mb ers a vi rtue . Th os e wh o obeye d th e de m an ds of our Gov ernm en t an d gave 

ye ar s, lim bs an d even th eir life to th a t w ar re quir e an am ne sty from th is 

co un try, too, fo r th e sacrifi ce s wh ich they co nt in ue to mak e in th e dis orien ta tion 

an d the di sa dv an ta ge s in th eir live s c au se d by the w ar .

W hat is of te n igno re d is th a t th e ov erwhe lm ing m aj ori ty of me n who we re 

of m ilitar y ag e duri ng th e V ietnam er a di d not s e n e in th e m ilitar y. It is sim ply 

fa ctu al poppy coc k to su gg es t th a t ev eryo ne ga ve tw o yea rs of his life to th e 

co un try in th a t trou bl ed pe rio d of our his to ry an d th a t th er ef ore th e w ar re ­

si st er s sh ou ld no t ge t off scot-fr ee . Fe w er th an 10% of th e dra ft able man po wer 

poo l was ev er dra ft ed. Millions of men foun d qu as i-lega l av en ue s of esca pe fro m 

th e dra ff , th e m ilitar y an d th e war, a w ar in wh ich ha rd ly an yo ne w an te d to 

fight. Alm os t ev er y yo un g m an wh ose pare nts were ric h enou gh to send him to 

colleg e an d ge t him a 2- S de fe rm en t esca pe d th e d r a f t; th e lo tter y pr ot ec ted 

man y of t he o th er s. Men by th e tens o f th ou sa nd s hid ou t fro m th e w ar in med ica l 

an d ps ych ia tric d ef er m en ts, in tech ni ca l an d at hle ti c e xc uses, in th e m in is try, the 

Pe ac e Co rps, in th e teac hi ng an d oth er pr of es sion al encla ves. Inde ed , th e very 

RO TC an d the N at io na l G ua rd we re ha ve ns fro m th e ba ttl ef ield of Vietnam fo r 

thou sa nd s. By an d larg e, it w as le ft to th e ill-in fo rm ed an d th e luck less to fight 

th is d ir ty w ar fo r us.

The men wh o serv ed in th e m ilitar y in th e Vietnam er a re al ly fa ll into fo ur 

cla ss es : (1 ) care er m il it ary men an d women, (2 ) men in th e Res erve s wh o misca lc ul at ed th eir ch an ce s of es ca pi ng th e d ra ft an d th e w ar by th eir Reserve 

conn ec tio n, (3 ) in vo lu nt ar y dra ft ee s, im presse d by mea ns o f th e Se lec tiv e Se rvice 

Sy ste m, an d (4 ) en listee s who hoped to ge t a bett er as sign m en t by vo lu nta rily 

jo in in g up be fore they got dra ft ed . Th e vast m aj ori ty of th e m il it ary man po wer 

ca me from th e la st tw o ca tego rie s, an d th es e were in gre at ly di sp ro portio nat e 

nu mbe rs from am on g th e poo r, th e ill-edu ca ted , an d th e m in or ity co mmun ities. It 

is men fro m th e “lo wer sta tu s” elem en ts of our so ciety (t o use Dr. Ken ne th B. 

C la rk ’s phra se ) who were dra ft ed in gre ate r nu mbe rs, we re as sign ed in g re ate r 

nu m be rs to th e fr on t-line fig hting units an d to un sk ille d an d de ad -end m il it ary 

jobs , they were wou nd ed an d kille d in gre ate r nu mbe rs, ab us ed by th e system of 

m ilitar y disc ip lin e an d ju st ic e, an d fin ally ejec te d fro m th e m il it ary m ac hi ne ry in
44

gre ate r numbers with less-than-honorable discharges and other “had paper” tha t 

blight the res t ol’ their lives. This country owes red ress to them as well as to the 

war resisters.

CONST ITUTIONAL AND LEGAL CONS IDERATIONS

The Constitutional power of the President to gra nt amnesties by executive 

proclamation is founded on the clause in Article II, Section 2, that entitles the 

Presiden t “to grant reprieves and pardons for offences aga inst the United States, 

except in cases of impeachment.” It has been used repeatedly by Presidents 

throughou t our history, from President George Washington to Presiden t Harry 

Truman. The Library of Congress, Legislative Reference Service, has compiled 

the particulars of the 17-or-50 amnesties that have been gran ted in our troubled 

history. Our historical experience and the United States Supreme Court agree 

tha t the Congress of the United States also has a concurrent power to enact 

amnesty legislatively (see i.a. Harva rd Intern ationa l L aw Review, Vol. 13, No. 1, 

Winter 1970). These very hearings reconfirm the Congress’ conviction th at amnesty is with in its province, and there is ample legal autho rity indeed for that 

assertion.

Amnesty may be defined as “a discretionary decision by a sovereign government not to raise the issue of whether a class of its citizens have violated the 

laws in a political conflict.” Amnesty, then, is discretionary—i.e., there is no 

constitutional righ t or legal entitlement to amnesty. Amnesty is similar in that 

respect to pardon, but pardon rela tes to a single individual while amnesty affects 

whole classes of people, and pardon mitigates furth er punishment for someone 

who stands convicted of an offense, whereas amnesty means a decision not even 

to raise the question of criminal culpability on th e p ar t of that class of citizens. 

Amnesty is, in its nature, not forgiveness nor approal or ratification of the acts 

being amnestied; it simply is the means, hallowed by our law and tradition, by 

which the society decides to wipe out its formal, legal memory of the acts. It is 

a measure of social reconciliation after severe political conflict. Amnesty today 

would not necessarily be a ratification of war resistance or dr aft refusal or 

desertion, any more tha n a pardon for a convicted felon suggests approval of the 

crime of which he stan ds convicted. It is a way of ending conflict and pain and 

hurt where th ere has been enough of th at already.

CATEGORIES AND NUM BER S OF PEOPLE AFFECTED

The ACLU urges that all penalties, whether criminal or adm inistrative in 

nature, th at arise from non-violent acts of resistance to the dra ft, the military, 

and the war be extin guished by a u niversal and unconditional amnesty, including 

at least the following:

(1) Draft violators. Over 7,500 men were convicted of dr aft violations committed during the V ietnam era. In many instances, they were harshly sentenced 

by fede ral courts as though they represented a danger to the society more acute 

tha n crim inals of violent disposition and self-seeking criminal conduct. Draft 

violators continue to be vigorously prosecuted and sentenced even today, notwithstan ding the cease-fire and the end of inductions under the dra ft. The number of 

indictme nts pending for such draft violations fluctuates but remains very substa ntial even today. The process of identifying draft delinquents in the files of 

the Selective Service System continues, and so do refer rals of such delinquents 

to the Department of Ju stice for prosecution. Draft delinquency, we must remember, is the failure to notify the dr aft board of a change of address for example. 

The punishment for dr aft violations, we must also remember is five years and 

.$10,000 on each count. Lite rally hundreds of thousands of young men in their 

teens and twenties are in jeopardy of prosecution under the dr af t law (and will 

be until the sta tut e of limitations run s out for them). These are the men who 

simply did not register when they turned 18. It is difficult to say just how many 

men escaped the w ar and the dr aft by t ha t means, b ut it is useful to realize that 

the Director of the Selective Service System reported last year, in his judgment, 

in excess of 10% of the men who became 18 in the cale ndar year 1972 did not. 

register. Since over 2.000.000 men reach that threshold every year, that means 

200.000-nlus draff violators in that single year of 1972 alo ne !

(2) Deserters. The Department of Defense reported 495,089 cases of desertion 

from Fiscal Year 1965 through early Fiscal 1973. Ha lf a million men! Tn one 

year alone (1971). the Defense Department reported just short of 100.000 men 

as dese rters. What testimony to a demoralized military in a divided country.
45

Ob vio usl y, mos t of thos e des er te rs re tu rn ed vol unt ar ily or by ap pr eh en sion , th e 

nu m be r of de se rt er s wh o re m ai n a t la rg e is fa r sm alle r. Th e nu mbe r of des er te rs 

nt larg e, ac co rd in g to Defen se D ep ar tm en t fig ure s, has ho ve red ar ou nd th e 

30,000 m ar k fo r se ve ra l ye ar s. B ut th es e official fig ures are them se lv es su bj ec t 

to co ns id erab le do ub t. As was sho wn by Rob er t Mu sil in hi s art ic le “The T ru th 

Ab ou t D es er te rs ’’ (T he Nation, A pr il 16, 1973), th e DO D sta ti st ic s issued 

an nu al ly duri ng th e Vietnam ye ar s in dic at e a to ta l nu m be r of al>out 135,000 

de se rt er s a t larg e. Th e re fu sa l of DO D to ex pl ai n th e disc re pa nc y between 

th eir annual pe rson ne l re port s an d th e fig ures now be ing us ed giv es rise to 

me lan ch oly sp ec ul atio ns ab ou t a “bo dy coun t” which falsifies th e tr u th an d 

re fu se s to ac co un t fo r som e 100,000 y ou ng American men wh o were in th e co ntrol 

of th e U ni ted S ta te s m ilitar y forces. D ra ft vi ola to rs te nd to be me n—mo st often 

white, middle clas s, an d well ed uc at ed — wh o de cid ed in good tim e th a t they 

could no t serv e th e w ar . D es er te rs a re m en wh o had les s op po rtun ity to fo rm ul at e 

ah ea d of tim e th eir pe rson al or m or al or ideo logica l att it ude, an d who le ar ne d 

fr om th e re al -life ex pe rie nc e of th e m il it ary an d th e w ar th a t th ey wo uld no t 

giv e th eir bo die s an d th e liv es to th a t w ar . The myt h th a t des er te rs are men 

wh o leav e th eir bu dd ies unde r fire is, of co urse, false.

A st ri kin g nu m be r of th e de se rt er s are men who serv ed ho no ra bl y in Viet na m, 

an d man y of th em ha ve med al s fo r th eir he ro ism in bat tle. Th ey are me n upo n 

wh om th e re al iz at io n da wne d prec isely fr om th eir co mba t ex pe rie nc e th a t the 

ki llin g mad e no sen se, th a t th e American peop le did no t know w hat it was good 

fo r, an d th a t th ey could not fig ure ou t to w hat en d th ey were des troy in g seve ral 

co un trie s an d th e ir po pu la tion s w ith wh om wye had no quarr el an d wh o re pre ­

se nt ed no co nc eiva ble th re a t to th e se cu ri ty of our co un try. A good m an y ot he rs 

fo un d th e ra ci sm an d th e deh um an iz at io n of th e m ilitar y so op pressiv e, espe ­

cially in th e co nt ex t of th e w ar . th a t th ey left, fin ding al l th e en ormou s difficu ltie s an d ri sk s of de se rtion, un de rg ro un d or e xi le life , more be ar ab le an d mor al 

th an th eir co nt in ui ng invo lvem en t in th e m il it ary an d th e w ar .

(3 ) Exi le s. W hat ever th eir nu mbe r, ex iles are men who, be ing d ra ft re si st er s 

or de se rter s, liv e ab ro ad be ca us e th ey do not be lie ve th a t w ar re si st an ce in th e 

V ietn am er a w as a cr im in al ac t wh ich th is co untry is en titled to pu nish . Th ey 

re fu se to ac kn ow led ge a “g uil t” fo r ac ts of hu m an ity th a t wo uld la nd th em in 

th e stoc ka de or pen it en ti ar y if th ey re tu rn ed to th is co un try.

The re a re an es tim at ed 30,000 to 50.000 American w ar- re si st er ex ile s ab ro ad , 

th e ov erwhe lm ing m aj ori ty of them in Can ad a, with sm all grou ps of th em in 

Fra nc e. Eng land . Sw eden, an d oth er co un trie s ar ou nd th e globe. F a r fro m 

“d es er ting t he coun tr y, ” t hey are m en so pr of ou nd ly t ro ub le d by w h at t he cou nt ry 

has been do ing to th e world an d to it se lf an d by w hat it prop os ed to do t o them , 

th a t they fe lt ex pe lle d fro m th eir own so ciety un de r th re a t of se ve re p un ishm en t 

fo r th e ir st and ag ai nst th e w ar . Exi le s are no t me n who w an te d to av oid th e 

co nsequences of th eir ac ts of w ar re si st an ce . Th ey ha ve al re ad y sp en t ma ny 

yea rs of th eir liv es aw ay from th eir fam ily, th e ir friend s, th eir ed uc ation, th eir 

ca re er s, th e cu ltur e, th eir co un try. The y ha ve su ffered th e leg al, eco nomic, an d 

ps yc hic bu rd en s of exile , of no t kn ow ing w he th er th ey could ev er re tu rn to 

th eir ow n co un try w ithout dra co ni an pu ni sh m en t fo r ac ts wh ich do no t w arr an t 

pu nish m en t. So crates , it will be remem be red, ha d th e choic e betw ee n ex ile an d 

de at h, an d pre fe rr ed th e cu p of he ml ock to th e bit te rn es s of ex ile! W ithou t a 

un iv er sa l an d un co nd itio na l am ne sty, th e U ni te d S ta te s w ill cr ea te a la rg e clas s 

of American po lit ic al refu ge es ab ro ad —for th e first tim e in ou r his to ry sin ce we 

ex pelle d th e Tor ies fro m New Eng land a t th e tim e of the American Re vo lutio n.

(4 ) Cou rt-m ar tia l co nv ictio ns . D uri ng th e Vietnam er a. som e 550,000 G.T.’s 

w er e co urt -m artia le d fo r pu re ly m il it ary offens es th a t are n ot c rim es in a civi lia n 

co ntex t. Ab ou t h alf of al l th e court s- m ar tial tr ia ls were fo r ab senc e offens es, 

ab ou t anoth er te nth fo r ob edien ce offens es, oth er s fo r thos e pec ul ia rly va gu e 

ch ar ge s (suc h as co nd uc t te nd in g to br in g dis cr ed it upon th e ar m ed forces, and 

th e like ) th a t are th e hal lm ar k of m il it ary ju stic e. Th e pr op or tio n of m in or ity 

grou p G.T.’s co ur t- m ar tial ed wa s man y tim es th e ra ti o of w hi te G .I. ’s. Cou rtm art ia l co nv ictio ns a re the eq ui va le nt of felon ies in civi lia n life.

Here, then , are hun dr ed s of th ou sa nd s of men. in volu nta ri ly dra ft ed in to the 

service , di sc rim in at ori ly pu nish ed fo r off enses w’hich ha ve no st andin g unde r 

th e C on st itution or in our ord in ar y cr im in al code, wh o will carr y w ith them fo r 

th e re st of th eir liv es th e st ig m a an d dis ab ilitie s of be ing co nv ict ed fel ons. We 

believe th a t th is stig m a is unw arr ante d an d in to le ra bl e. Note th a t we do no t 

he re ad vo ca te am ne sty fo r off enses tr ie d by m il it ary co ur ts th a t are ord in ar y 

crim es —n o one is ta lk in g ab ou t am ne sty fo r m urd er or ass ault or em be zz lem en t 

or r ap e. W e a re talk in g abo ut p ur el y m il it ary offen ses.
46

(5) Less-than-honorable discharges. About 450,000 Vietnam era veterans have 

‘‘bad paper,” less-than-honorable discharges from the military, almost all of 

them “adm inistrative” discharges given not as a consequence of court-martial 

sentence but in effect arb itrari ly imposed by milita ry command decision. In 

extraordin arily disproportionate numbers, they were given to men from the 

“lower status” elements of our society, the poor, the ill-educated, and the minority 

communities. The disabilities created by these “bad” discharges include deprivation of veterans benefits, lack of access to vetera ns’ hospitals, disqualifications for federal, state and local civil service jobs, inability to receive various 

kinds of licenses and professional accreditation, and severe employment discrimination in p riva te business and industry. These men, almost half a million of 

them, served their country in compliance with the law.

Their rewa rd is life-long dual punishment—the years of their lives taken by 

the military with all the hardships involved, plus the bad discharge, which will 

hau nt them in many ways throughout the ir careers. An amnesty for them means 

a greatly increased and decent level of educational, medical, and other social 

services, and a general upgrading of discharges, so t ha t the arbitra ry command 

decisions will not hamper the development of the ir lives as citizen-veterans. 

There can be no justification for “admin istrativ e discharges” and for Separation 

Processing Numbers on discharges that visit life-long punishment, without due 

process, on the men who served the ir country. One uniform Certificate of Service, 

testifyin g to the mere fact of military service, is in order. If there are criminal 

charges to be preferred aga inst a member of the military, let those be adjud icated, but let there not be double punishment (cou rt ma rtia l sentence and a lifelong bad discharge) or arbitra ry punishment (administrative discharge) for 

those from whom we have alre ady demanded years of the ir lives.

(6) Civilian resisters and protesters. In increasing numbers during the long 

years of the war. citizens by the thousands registered their dissent, fru stration 

and outrage at the contin uing slau ghter in Southeast Asia. Thousands, indeed 

ten of thousands, were arrested in protest demonstrations and other acts whose 

sole purpose was to demand the end of the killing. Citizens were arrested in the 

course of lawful and constitutionally protected demonstrations, even if they were 

not themselves partici pan ts in the dem ons trations; they were arrested for other 

acts which gave symbolic expression at the ir desperation about the endless war. 

The charges ranged from petty misdemeanors (trespass, disorderly conduct, and 

the like) all the way to allegations of espionage an d conspiracy. Justice demands 

tha t a full amnesty, including expungement of criminal records, be given also 

to those men and women who spoke to the conscience of the natio n in ways 

infinitely less destructive and bru tal than was the conduct of that tragic war.

UNIVER SAL AM NESTY

All the categories of resiste rs to the dra ft, the military, and the war must be 

amnestied. That is to sa y: the amnesty must be universal, without distinction 

as to category of war and draft resistance. The amnesty must be granted to all 

of them as a class, not on a case-by-case examination of the subjective motivations 

for their acts of war resistance. Amnesty means a class pardon means not repe ating the tragic, wasteful, and discriminatory process of case-by-case review for 

which the bad precedent is the Trum an Amnesty Board of 1947, which turned 

amnesty into a flagrant process of discrimination on grounds of race, class, and 

religious affiliation. Case-by-case review inevitably means a process of granting 

amnesty to th e artic ulate, who can persuade some tr ibu nal of their decent motivation. and discriminating against the ina rtic ulate (tha t is to say : prim arily the 

the ill-educated, the poor, the minority-group res ister) . Resistance to that war 

was not an offense th at we are entitled to forgive only if we approve of the 

motives th at prompted the resistance. It ill behooves this Congress to urge 

searching enquiry into the motivations of those who took one committed stand 

on the w ar or another.

UNCON DITIONAL AM NE STY

The amnesty must be unconditional, i.e. not contin gent upon the perform ance 

"by these amnestees of some other “service” to the Government. All these men 

have alre ady spent years of the ir lives in jail, in underground life in our own 

country, in exile abroad, or in the military services themselves. Their lives 

have been profoundly disarranged and distorted by the war. and their suffering 

has been as great as the service they have rendered our nation. No purpose can
47

po ssibly be se rv ed by de man di ng th a t th es e yo un g men spen d tim e in som e 

Gov ernm en t-s po ns ored or su pe rv ised f or m of a lle ge dly sociall y co ns truc tive lab or. 

A lter na tive se rv ice is pun is hm en t—p un is hm en t fo r hu m an e an d self- sa crifi cing 

serv ice to th e hi gh es t id ea ls of th e nat io n. The be st th in g th is co un try ca n do 

fo r its yo un g sons a ft e r th e tr aum as of th e w ar is to le t them re tu rn to th eir 

own liv es, un hi nd er ed by th e he av y han d of Go ve rnmen t. We are conscio us of 

th e re po rt s th a t a gre at man y American s wh o su pp or t am ne sty fo r th e w ar 

re si st ers of th e Vietnam era believe th a t alt ern ati v e serv ice co nd iti on s shou ld 

be att ac hed to such an am ne sty. B ut su ch co nd iti on s are in confl ict w ith th e 

ve ry natu re of am ne sty, which is th e so ci ety's de ciding to se t as id e th e divi sive 

and conflic ted hi st ory of th e pa st. Ma ny Am er ic an s are be ginn ing to under st an d 

th a t th e w ar re si st ers hn vc served , in w ay s a t le ast as ho no rable as m il it ary 

se rv ice an d th a t ad ditio nal de man ds mad e of them an d th eir liv es are me re 

vind ictiv en ess.

LA W AN D ORDER

Th e sp ec te r is of te n ra is ed th a t th e gra nti ng of an am ne sty wo uld de stro y 

th e co ncept of a la w fu l socie ty. Am nesty , it is sa id , wo uld su gg es t th a t citiz en s 

ma y choos e which la w s to obey an d which to vi ol ate, th a t one ma y bre ak th e 

law w ith im pu nity . B ut am ne sty, be ing a la w fu l en ac tm en t w ithin th e pu re 

di sc re tion of th e Exe cu tive or Leg isla tive B ra nc he s of Gov ernm en t, se ts no 

pr ec ed en t an d do es not pros pe ctively en co ur ag e an yo ne to vi ol ate th e law . A 

pre si den tial pa rd on fo r som eon e co nv ict ed of vio la ting th e fe de ra l ju ry ta m per ­

ing st atu te doe s no t en co ur ag e ot he rs to vio la te th a t same sta tu te in th e confid en t ex pe ct at io n th a t he, too, wi ll be pre si de ntial ly pa rd on ed . The sa m e ho lds 

tr ue fo r am ne sty. If am ne sty did se t a bi nd in g pr ec ed en t, th is Su bc om mittee 

an d we wo uld no t be he re, be cause th e am ne sty we seek wo uld com e ab ou t as 

a natu ra l consequence of th e man y am ne st ie s th a t American hi st or y reco rd s, 

from Pre si den t W as hi ng to n’s am ne sty fo r thos e invo lved in th e W hisk ey Re be llion, th ro ug h th e post- Civil W ar am ne stie s fo r th e po litica l an d m il it ary le adersh ip of th e Con fede racy , to ou r own mod ern tim es . The w ar re si st ers an d 

vet er an s of th e Vietnam era did no t com e in to conflic t w ith th e d ra ft an d 

m ilitar y laws be ca us e they knew they wo uld esca pe puni sh m en t by mea ns of 

an am ne sty. Th ey , alon g w ith mill ions of th eir fello w ci tize ns an d man y of 

our po lit ical an d m ilitar y lead er s, believed so stro ng ly th a t th e w ar w as wr ong, 

th a t th ey were w ill ing to ri sk th e conseq ue nc es of th eir ac tio n.

Th e qu es tion now be fore th e co un try is w het her it is in th e in te re st of th e 

society to pu ni sh th eir ac ts. Th e de cli ne of re sp ec t fo r law, of wh ich man y com ­

pl ain, is in la rg e p a rt du e to th e b la ta n t un la w fu ln es s of so man y ac ts of th is 

Gov ernm en t an d it s le ad er s in conn ec tio n w ith th e w ar an d in co nn ec tio n w ith 

oth er as pe ct s of pu blic life. The en ac tm en t by th e Co ng ress of a univ er sa l an d 

un co nd iti on al am ne sty, or it s g ra n t by a P re si den t of th e United Sta te s, wo uld 

begin to cre ate once mo re a se ns e in m an y of our cit izen s, espe ciall y of th e 

yo un ge r ge ne ra tion , th a t th e la w is no t an in st ru m en t of re pr es sion an d co ntro l 

bu t can be used fo r th e benefit of the society an d its me mb ers . It wo uld en ha nc e, 

no t de stro y, re sp ec t fo r th e law .

FA IR N ESS AN D EQ U IT Y

It. is someti mes sa id th at am ne sty wo uld dish on or th e sacrifice s of th os e me n 

wh o fo ug ht an d di ed in th e w ar , th at am ne sty wo uld vio la te ev ery sens e of fa ir ­

ness an d eq ui ty by le tt in g th e w ar re si st er s ge t off sc ot -fr ee wh en so man y oth er 

me n mad e se ve re sacrifices. B ut am ne sty wo uld im ply no dish on or to th os e wh o 

serv ed an d fo ug ht an d die d. Th e w ar re si st er s them se lves resp ec t th e de cis ions 

mad e by ot her me n to obey th e la w an d to do w hat th e Gov ernm en t an d th e law 

deman de d. Th ey kn ow th at, in th e ord in ar y co ur se of ev en ts, citize ns obey th e 

law an d do w ha t th e co un try see ms to say th ey o ug ht to do. Th ey k no w th a t thos e 

wh o se rv ed an d fo ug ht also became vi ct im s of th e w ar , th a t man y of th e G.I.’s 

part ic ip at ed in th e m ilitar y an d the w ar w ith gra ve re se rv at io ns an d pr of ou nd 

di st as te , th a t th e vet er an s to da y feel ill-used an d igno red by Am eri ca.

Th e Vietnam vet er an s kn ow th a t th e years o f th eir lives wo uld no t be re stor ed 

to them by pu nis hi ng th e w ar re si st er s, th eir bo dies wo uld no t be mad e wh ole, 

th eir bu dd ies no t br ou gh t ba ck to lif e. Vietnam vete ra ns al l ov er th e co un try 

ha ve sa id to me th a t th ey di d w ha t th ey th ought th ey ha d to do, but th a t they 

re sp ec t an d ad m ir e th os e wh o refu se d. P ri vat el y, man y Vietnam vet er an s wi ll 

say th at, if th ey ha d to do it al l ov er ag ai n, they too wo uld go to Can ad a. We
48

believe that the veterans and the American people would gladly acquiesce if the 

political and moral leade rship would say to the American people: Let us not 

have recriminations in our country over who was right and who was wrong 

about the w ar at the cost of the decent lives of tens of thousands of o ur sons.

CONCLUSION

The country has finally been able to bring some aspects of the war in Southeast Asia to a close. We have begun, after a fashion, to make peace witli our 

former enemies in Hanoi, Peking and Moscow. Is it not time that we also make 

peace with our sons, with ourselves? Must th at “peace of healing,” of which we 

heard at the time of the Cease F ire Agreements, not also mean the healing of the 

wounds th at we inflicted upon our own citizens? Is it not time to stop making 

victims in the context of that cata strophic experience called the Vietnam war? 

We have brought home the prisoners of war and the wounded, and we have reunited with their families the men who fought that tragic wa r for us. Must we 

not also now reunite with the ir families and with the ir country the men and 

women who have accepted many years of severe hardship out of the conviction 

that the wa r was not in the interest of our country?

We join in the concerns expressed recently by a group of distinguished American citizens in speaking about amnesty :

“Can Congressmen and members of th e ad ministration, both present and former 

ones, who put us into the war and who kept us in it so long, have it in their 

hearts to absolve themselves while they hu rt these young men?

“Can those Congressmen who opposed the war, in the way the public empowered 

them to do, w ant to hu rt those powerless men who opposed the war in the only 

ways they could or knew how, men who in the process helped crea te and sustain 

that public disgust with the war which finally gave some success to Congressional 

effort to end it?

“We believe th at Congress and the Presiden t are, in fact, fully free to act 

for amnesty, and that they cann ot righ tfully claim to be held back by constituents ’ pressures. We believe amnesty, as was segregation in the South, is an issue 

wherein statesmen would not trade on fe ars but can, and therefo re should, lead. 

We believe that the people will respond helpfully to forth rig ht leadership, as 

did people in the South when segregation was outlawed.

“We believe that if Congress or the Presiden t will give the American people 

the opportunity to be generous and just, the nation will be so. We ask for tha t 

opportunity.

“Does this nation, tha t was estab lished to ‘form a more perfect union’ and to 

‘insure domestic tranquility,’ not want to heal itself? Do we not want to take 

this chance on justice?

“There are few acts a government can decide upon that clearly and immediately 

benefit individ uals; amnesty would be one. We think it would be even more. We 

would be saying to ourselves that we now put the Vietnam war behind us, with 

its terr ible freight of bitterness and recrimination, and of corruption and bru tality too. We would signal a decisive turning away from the darkness of the war 

years, and toward rebuilding and restorin g and healing, both here and, as we are 

morally bound to do, in Indo-China. We also would be affirming to ourselves that 

America has no time or need for vengeance a gainst ourselves, and especially not 

aga inst our youth. We would, instead, be welcoming the retu rn, as free members 

of a freer society, of young men who can give much to the fut ure —their s and 

ours and our country’s.”

Mr. Kastenmeier. T note th at in re fe rrin g to the T ruman Am nesty 

Bo ard of 1947, and the process of case-by-case review, you term it a 

fla gran t process of dis crimination. So I tak e it, th is is one of th e rea ­

sons you su pp ort univer sal and unconditio nal amn esty because anyth in g short of it te nds to dis criminate on its f ace; is that corre ct?

Mr. Schwarzschild. On the face of it and in the act ual process. 

On the face of it, because any req uirem ent th at the wa r resisters 

ju stify th eir acts: the subjective, pers onal religious, m ora l ideological 

bona fide acts of th eir wa r resistan ce wou ld ine vitably produce a 

disti nctio n not between those who are well mo tivate d and those who 

are not, bu t between the art iculate who can make out a cogent case,
49

a systematic world view about killing and war as against those who 

are inarticulate, and cannot make out their case to some tribunal. 

This is further compounded by the elements of race and education in 

our society.

Mr. Kastenmeier. I am wondering, because the classes you describe 

are so sweeping and the numbers who are ail'ected so great, how you 

feel about those swept up in these classes who are really not warrelated; at least not in terms of war resistance or conscience. I am 

referring to many of the deserters who are in that category because 

they have committed other crimes that had nothing to do with how 

they felt about the war. Would these people, too, be amnestied in the 

same proposal?

Mr. Schwarzschild. Xo; the amnesty you referred to does not 

relate to ordinary crimes. We do not suggest t hat people charged or 

found guilty of murder, assault, embezzlement, or rape be amnestied. 

We believe those are civil proceedings and the present law requires 

they be tried in military court.

We are talking about amnesty for war and military and draftrelated offenses. Xot all of those necessarily are in some sense of the 

word consciously related to the war. But an attempt to distinguish 

the personal, subtle complicated motivations for acts tha t will, by the 

time they get around to being examined, lie 5 or 10 years in the past, 

seems to us so useless and so inherently impossible and hurtful, and it 

seems to us that in any case, nothing is gained by the distinction, 

because the acts themselves were not hurtful to the society. It seems 

to us tha t here is a particularly appropriate place for us to apply 

tha t old dictum that it is better th at many guilty men should go free 

rather than let one innocent man be punished.

War resistance, it seems to us, does not require a showing of some 

ideology or some morality tha t commends itself to a tribunal. That 

war, given its dubious morality and dubious constitutionality meant 

that valid resistance and motivation were entirely proper.

Mr. Kastenmeier. However, if you feel those who have committed 

other crimes tha t are really unrelated to the war should not be included. someone must make the distinction. Do you not still require 

some sort of amnesty board to make the distinction between those 

that would be affected and those who would not be?

Mr. Schwarzschild. We do not believe so, Mr. Chairman, because 

the amnesty ought to be written so as to amnesty possible violations 

of specific sections of the United States Code. Murder and embezzlement and so forth, would not be subject to tha t amnesty. Violation 

of the Selective Service Act or of that specific paragraph of the 

Uniform Code of Military Justice that relates to absence or obedience 

offenses or desertion, would be subject to tha t amnesty.

I think the distinction is rather easily drafted and, indeed, some of 

the proposed legislation before this committee begins to make very 

significant and worthwhile attempts at making those distinctions.

Mr. Kastenmeier. Of the legislative proposals before our committee. which ones do you support ?

Mr. Schwarzschild. Mr. Chairman, T am in no position to support 

any one bill or another. I would say that the closer the proposed legislation comes to a universal and unconditional amnesty for all those 

classes of men who continue to be victimized in the context of law; 

the closer a bill comes to that desired objective, the more earnestly do 

we recommend its earliest adoption.
50

But we do not believe at the present time, any of the proposed legislation really meets th at test, though some obviously come closer than 

others.

Mr. Kastenmeier. I)o you and Mr. Schardt believe that Congress 

has, without question, the power to legislate in this area?

Mr. Sciiwarzschild. Yes, sir, we do. and the legal literature of the 

recent years states tha t very eloquently. There is a very substantial 

bibliography on the law of amnesty dealing with the congressional 

power to enact amnesty legislatively. In any case, it goes without 

saying that any act of the Congress in order to become effective as 

law, including amnesty legislation, would require the signature of the 

President. The Congress could of course, pass it over the President’s 

veto, but I believe that is not a very likely proposition.

The constitutional power of the Congress to act on amnesty was 

established in the 19tli century and the Supreme Court has spoken to 

it and endorsed that power. We have no doubt about th at at all, and 

as I say, I shall be honored if the chairman will give me permission 

to submit a number of relevant scholarly articles on th at subject for 

its recommendation.

Mr. Kastenmeier. The Chair will be pleased to receive those tre atises or statements, and Mr. Schardt. you agree ?

Mr. Schardt. Absolutely; yes.

| The articles referred to appear at pp. 56-156.]

Mr. Kastenmeier. I yield to the gentleman from New York, Air. 

Smith.

Mr. Smith. Thank you, Mr. Chairman.

Thank you, Mr. Sciiwarzschild, for your contribution here.

In the event that Congress were to decide to pass an amnesty bill 

tha t contained—a board, an amnesty board to review on a case-by-case 

decision, would you personally, not particularly speaking for your 

organization, be willing to accept th at in lieu of no kind of amnesty?

Mr. Sciiwarzschild. Sir, I think the answer is tha t the prospect of 

an amnesty board having before it these hundreds of thousands of 

cases and attempting to make distinctions about the validity and conscientiousness and the acceptability of the motives of these men is so 

appalling and so impossible and useless, that I think I would have to 

say in answer to your question tha t the kind of amnesty we advocate 

is really in conflict with tha t prospect. We believe that it ought to be 

the courageous political decision of our political leadership to resolve 

the problems of war resistance and of victimization by the military 

of the Vietnam era generation bv its own action, and not to pass this 

problem on to tribunals all over the country tha t would attempt, as 

the dra ft boards did for years, to make a distinction which they were 

clearly not competent to make about the morality and the conscience 

of hundreds of thousands of our sons.

Mr. Smith. Your answer is no, then, I take it ?

Mr. Sciiwarzschild. Yes, sir.

Mr. Schardt. I would second that just on the very simple ground 

tha t I do not see how you could do that without simply duplicating 

all the discrimination tha t was already inflicted by dra ft boards 

throughout the entire period of our participation in the war.

Mr. Smith. There would be that possibility, of course.
51

Of course, 1 expect there was some discrimination by draft boards. 

By and large, though, my experience was that they are made up of 

people who felt a responsibility to their communities and attempted 

within the limits of their conscience to do a good job. In spite of the 

best of intentions and so forth, I am sure there were times when there 

were discriminations made. But 1 would like to raise a voice in honor 

of and in defense of the hundreds and thousands of men and women 

who sat on d raft boards and tried to do a job as their conscience led 

them into it.

Mr. Schardt. I agree th at there were many, many Americans who 

served to the best abilities of their conscience in tryin g to make the 

dra ft work, but I think the evidence refutes that to the extent that the 

system itself just simply did not work. There were so many enormous 

loopholes with which those members were operating to begin with, 

tha t the inevitable result was discrimination regardless of the sincerity or conscientiousness with which members were performing 

their duties.

Mr. Smith. I would have to say that there probably was here and 

there discrimination, because human beings were trying to make judg ­

ments and decisions, and I think in a large measure you will always 

find that human beings attempting to make judgments and decisions, 

sometimes will not be exactly evenhanded, even though they intend 

to be and they want to be and they try to be.

Thank you very much.

Mr. Kastenmeier. The gentleman from Massachusetts, Mr. Drinan.

Mr. Drinan. Thank you very much, Mr. Schwarzschild, for your 

fine testimony.

I wonder if you would spell out the word “concurrent" as noted 

on page 6 of your testimony. As you read it, the Congress and the 

President have concurrent power to enact amnesty. Would you spell 

tha t out a bit?

Mr. Schwarzschild. Yes. We believe that the Presidential power 

to enact amnesty by Executive action alone is so clearly derivable 

from Article IT, Section 2, of the Constitution, that tha t has never 

been seriously challenged. I think the classic doctrine in western jurisprudence is tha t the pardoning power and, therefore, the amnesty 

power, which is a kind of class pardon, resides in the sovereign States. 

Clearly, in traditio nal European terms tha t meant the King was above 

the law and the source of the law and, therefore, had the power to 

set the law aside.

Obviously, the Constitution has done away with monarchy in this 

country. Precisely where the sovereignty resides, where are the locations of tha t sovereignty, is much more difficult to define than in 

classical monarchy terms.

I believe the accepted view is t hat the sovereignty remains in the 

United States with that branch of the Government which incorporates 

some of the sovereignty for certain purposes. The Congress of the 

United States also incorporates acts of sovereignty of the United 

States and, therefore, has acted in the past as its right to do as the 

sovereign power of the United States, and the Supreme Court in 

cases cited in the legal literature has endorsed that power tha t the 

Congress has asserted, particularly in the 19th century, to enact
52

amnesty. So when we say ‘‘concurrent’’ we mean there is an equal 

power.

Mr. Drixax. Are there any analogs in other areas? Is this unique? 

I am trying to make it clearer as to any other area.

Mr. Schwarzschild. 1 am not sure, Congressman Drinan. I do 

not know.

Mr. Drixan. I t would be helpful if you or Mr. S chardt could find 

material on th at because the word “concurrent” is a new one, really.

Mr. Schwarzschild. I t is not meant to be a technical term, Father 

Drinan. It means both the President and the Congress have equal 

powers to act.

Mr. Drixax. On page 12 you mention all the disabilities that come 

to these people. 1 wonder if you could give us your view on a bill th at 

could be enacted by the Congress th at would say all of the 450,000 of 

the Vietnam veterans that have less than honorable discharges should 

have by an act of Congress their discharge papers turned into this 

certificate of service that you recommend? Would you feel this would 

be constitutional? In other words, the Congress would say that notwithstanding their discharge they shall have veteran’s benefits, access 

to veteran’s hospitals, et cetera—would you feel that is within the 

power of Congress to do ?

Mr. Schwarzschild. 1 do, indeed, because the veterans' benefits and 

the like derives from a system wherein the Congress obviously has 

power to legislate classes of discharges and of veterans’ benefits so the 

reopening to these benefits and change to a uniform certificate of military service would be within the power of Congress.

Mr. Drixax. We are not seeking to do indirectly what we do not 

have the full power to do directly?

Mr. Schwarzschild. I am not quite sure I follow that, sir. I believe 

you would be doing it directly rathe r than indirectly if you legislated 

a uniform certificate of service.

Mr. Drixax. Would not the President say we are invading his 

powers ? We are forgiving or forgetting the offenses for these almost a 

half million who were denied benefits ?

Mr. Schwarzschild. Most of those. So th at question does not even 

precisely arise in this context, with a very tiny proportional exception 

of those veterans, their discharges are administrative discharges and 

would not.

Mr. Schardt. May I make one point?

In addition to those cases, there were cases of men who never even 

went through the courts martial process but took some sort of administrative punishment. Most of these men are subject to crippling 

effects in civilian life which resulted from something that happened 

within the military context. That type of discharge deprives them of 

an opportunity to get jobs, or credit, or insurance, or certain types-----

Mr. Drixax. I think every Member of Congress is well aware of 

that. These people make up some of our best pen pals.

On page 19 I would request th at you identify these distinguished 

American citizens who gave this statement on amnesty. Just for the 

record, 1 would like to have their names.

[The document entitled “Statement on Amnesty” appears at p. 328.]

As legislators, we have to think about the nuts and bolts, and that
53

these people, let us say the 450,000 Vietnam vetera ns have to ap ply 

to somewhere to get t he ir pa pers alter ed.

You suggest, and I see your logic, th at you do not wa nt a review 

board. But presen tly these men have to ap ply to the military. If th ey 

have a less than hon orab le discha rge the y have to get a clean piece of 

paper. Do you want the Congress to spell out rule s to the military so 

we do not have a re run of what went on before ?

Mr. Schaudt. I am not sure wha t agency would be the ap pr op riate 

one.

Mr. D rix an. You have to have an agency ?

Mr. Schaudt. To a dm ini ste r the processes, b ut it obviously o ugh t to 

be done as simply as possible. Ad dit ion ally, there should be an exchange of papers so they can show a uniform certificate of military 

service to prospective employe rs. It could be an exchang e of papers 

witho ut very much admi nis tra tiv e difficulty. It probably ou gh t not be 

the m ilitary, bu t wha t agency m igh t be ap prop ria te, I am not p rep ared 

to define.

Mr. Drix an. This, I think , would be very he lpf ul to us. We would 

like to know where th ey sh ould go if the y t ry to e xchange th eir p ape rs.

Th an k you ve ry m uch, sir.

Mr. Kastenmeier. The gen tlem an from Iowa.

Mr. Mezvinsky. Mr. Schwarzschild, I was intere ste d in yo ur testimony. You have mad e it very clear th at you feel th at unc onditional 

amnesty is the position th at shou ld be ta ken , t ha t it should be granted 

in a very simple way, and th at the cre atio n of an amnesty boa rd is 

briefly, not the answer. Then, let us move one ste p u p. You po int out on 

page 15 that you are conscious th at the public is more attune d to the 

idea of a pub lic service. If the option is alt erna tiv e pub lic service or 

no thing at all, would the position hold? Would you the n oppose th at 

position as well ?

Mr. Schwarzschild. Congressm an, we must and we oug ht to oppose 

th at. I t seems to me this Co ngre ss ought to, also. Alte rnative service is 

seen as a lesser form of pun ishme nt for acts which we do not believe 

war rant pun ishment at all. These men took very severe consequences 

in th eir lives over their decision not to pa rti cipa te in the war. Most 

of them. I think , find the notion unacceptable th at this Government 

has the ri ght to exact an ything fu rthe r from them arising from the 

Vietnam war. So a con ditiona l amn esty bill, besides being mo rally 

obje ctionable, would also be ineffectual and would not accomplish 

th at reen try into society of these people th at it is d esigned t o achieve.

Mr. Mezvinsky. T hen , f or the reco rd, can you expla in how we would 

distin guish between a conscientious objector who fel t the same way 

abo ut the war and fell un de r alt erna tiv e public service and one who 

seeks amn esty . I think th at dis tin ction sho uld be expla ine d fo r the 

record.

Mr. Schwarzschild. Do I un de rst an d you to ask why it was a pp ro ­

priate fo r co nscientious objecto rs to do alternative service b ut n ot------

Mr. Mezvinsky. I am sayin g du rin g the war there wer e many 

opposed to the war some of whom were successful in ge tti ng a CO 

status. You had a sit ua tio n of those who were opposed to th e wa r bu t 

fulfilled the a lte rnati ve p ublic service requirement. N ow we are s aying 

those who were oppo sed to the w ar and cnose other altern ati ves, either

31- 658 0 — 74-------5
54

going off to Canada or other places, should find themselves with 

unconditional amnesty.

Mr. Schwarzschild. I believe that is quite consistent. The American 

Civil Liberties Union is very troubled with alternative service for conscientious objectors. But some of the CO’s, as you know, refused to 

perform alternative service and suffered in prison. But those who did 

do alternative service would be the last to object to unconditional 

amnesty. They did not think alternative service was useful, or appropriate for the Congress of the United States to impose upon their lives. 

T am confident th at the war resisters and the CO's themselves during 

the Vietnam era endorse uniformly the notion of an unconditional 

amnesty because they do not want to see more of the years of the lives 

of the war resisters wasted in what will be described as constructive 

social service, but will really be irrelevant make-work normally, and 

what is in any case, of very dubious constitutionality inasmuch as there 

is no national emergency th at would empower the Government to tell 

these young men how to spend their lives—'what to do with the years 

of their lives.

I do not believe there is an inconsistency, and T do not believe the 

CO’s themselves would find one.

Mr. Schardt. During the American participation in Vietnam itself 

there was no other alternative other than alternative service, but 

amnesty does provide another alternative or option now.

Mr. Mezvinsky. Thank you. T appreciate your comments and 

testimony.

Thank you.

Mr. Smith. Mr. Chairman, could T ask one question ?

Mr. Kastenmeier. Yes.

Mr. Smith. Mr. Schwarzschild, the chances are we probably have so 

many people who were resisters during the Korean war and probably 

some deserters of the Korean war. Would you include those people in 

general amnesty ?

Mr. Schwarzschild. Indeed, there are still resisters from the World 

War IT period who were not pardoned. We believe as a matter of historical justice and equity, the amnesty ought to include war resisters 

from all the wars we have had. As you are aware, some years after 

every major war some act was taken that wipes away the remaining 

disabilities of those who came in conflict with the laws during the war. 

It was not until the Truman administration that those of the World 

War II period were amnestied. We believe with the larger numbers involved and the more political divisiveness of the Vietnam war, that 

action ought to come now so as not to continue to h urt the lives of our 

young sons. But we would include people from previous wars as well.

Mr. Smith. So the qualifier is, not whether it is a good war or bad 

war, but whether someone did not want to go for whatever motive?

Mr. Schwarzschild. Hardly anyone doubted the unavoidabilitv 

and perhaps the morality of World War IT, and yet this country at 

the hands of President Truman found it possible to gran t a broad 

amnesty.

How much more true must it be th at in a war which was so dubious 

and so divisive and so catastrophic for the world and the American 

people that the amnesty ought to come promptly and in an unconditional fashion. It is true that the war resisters of all the wars have
55

been fewer in number than in the last decade of our history. This reinforces our conviction that war resisters ought to be amnestied because 

tha t war was such a ghastly and terrible experience for all of us.

Mr. Smith. Thank you.

Mr. Kastenmeier. Thank von both, Mr. Schwarzschild and Mr. 

Schardt, for your contributions here this morning.
56

[The artic les referred to at p. 50 follow:]

AMNEST Y: AN ACT OF GRA CE

JUL IAN C. CAREY

Rep rinted from

SAINT LOUIS UNIVERSITY LAW JOURNAL 

Vol. 17, No. 4, Summ er, 1973
57

AMNESTY: AN ACT OF GRACE

“We mu st not pe rm it a single Am erican to be dra fted and sen t to

fig ht in the j ungle s of Indo-China.”

William E. Je nn er 

Senator from India na 

April 20, 19541

Since S enato r Je nn er ’s admonitio n, the Un ited State s Government 

has sent in excess of 3.3 million Am eric an men to fig ht in Ind och ina.2

It has buried over forty-five tho usa nd of them and t reated t he wound s 

of hundred s of thousands more.3

 It has wag ed an unpre cedente d and 

unparal led b omb ing campaign again st Laos, Cambodia, and Vie tnam,4

cre ating a sub-c ulture of refugees and maimed civilians.5 6 It has prossecuted a nd jailed th ose who refuse d to particip ate in the w ar in Indochina.® And it has forced ma ny mo re of the m into exile.7

 Alle gedly the war in Indochina has ended bu t the conflicts and con trad iction s in the Un ited Sta tes G overn me nt’s invo lve me nt compounds.

On Ju ly 30, 1969, a t Saigon, Vietnam , Presiden t Ric hard Nixon declared, “I think th at histor y will record th at this ma y have bee n one 

of Am erica’s fin est hours .”8

 Less th an fou r mo nths late r Am eric a’s 

fin est ho ur was pro faned wh en Pa ul Meadlo, a for me r priva te in the 

U.S. A rmy (Am erical Division ), to ld a CBS-TV inte rview er of his recollections of Vietnam :

There was about forty or forty- fiv e people that we gather ed in 

the center of the villa ge . . . men, women, children . . . babies.

And we all hud dled them up . . . Lie ute nant Calley . . . sta rte d

1. W. Effros, Quotations Vietn am: 1945-1970 at 16 (1970).

2. Le tte r from Joseph J. Lofrano, Commander, USN, Chief, Southeast 

Asia Division, Directora te for Defense Inform atio n to Jack Carey, Febru ary 

20, 1973, on f ile at th e St. Louis University Law Journal.

3. Id.

4. See R. Littauer & N. Uphoff, The Air War in Indochina (rev. ed. 

1972); Indochina Resource Center, Air War The Third I ndochina War (1972); 

St. Louis Post Dispatch, April 25, 1973, § A, a t 9, col. 5.

5. See F. Branfman, Voices From the Plain of Jars Life Under an

Air War (1972); Staff of Senate Com m, on the J udiciary, 91st Cong., 2d

Sess., Refugee and Civilian War Casualty Problems in Indochina (Comm. 

Pr int 1970); Staff of Senate Com m, on the J udiciary, 92d Cong., 2d Sess., 

War Victims in Indochina (Comm. Pr in t 1972); Hearings Befo re the Su bcom mittee to Investigate Problems Connected wi th Refuge es and Escapees,

Problems of War Vic tims in Indochina, 92d Cong., 2d Sess. (1972) (pt. 1: 

Vietnam; pt. 2: Cambodia and Laos).

6. See America n Report, May 7, 1973, at A-7, cols. 1-4.

7. See R. William s, The New Exiles (1971); N.Y. Times, Feb. 5, 1970, at

8, col. 4; Newsweek, Feb. 15, 1971, at 28; Newsweek Jan . 17, 1972, at 19- 

Tim e, Jan. 10, 1972, a t 15.

8. W. Effros, Quotations Vietnam: 1945-1970 at 152 (1970).
58

shooting them. And he told me to star t shooting. So I started 

shooting, I poured about four clips into the group . . . I fired 

them on automatic . . . you just spray the area . . . so you can’t 

know how many you killed . . . I might have killed ten or fifteen of them . . . so we started to gather them up, more people, 

and we had seven or eight people . . . we put them in the hootch, 

and we dropped a hand grenade in there with them . . . they had 

about seventy or seventy-five people all gathered up. So we 

threw ours in with them and Lieutenant Calley . . . started pushing them off and shooting . . . off into the ravine. It was a ditch.

And so we just pushed them off, and just started using automatics 

on them . . . men, women, children . . . and babies . . . after I 

done it, I felt good, but later on that day it was gettin’ to me . . .

It just seemed like it was the natural thing to do at the time. . . ,9

Indochina continues to be a paradox for most citizens. The United

States Government declares that it is halting aggression, while its 

own actions take the form of an aggressor.10 The Government declares 

that we are saving Southeast Asia, while reports indicate that we are 

destroying it.* 11 The Government maintains that we are supporting democratic nations, while those very governments jail political opponents, close newspapers, and conduct fraudulent elections.12

Caught within this maelstrom of political, legal, and moral contradictions is the war resister. Depending upon one’s point-of-view 

on Indochina, the war resister, both the draft dodger and the deserter, is either a traitor, one who refused to serve his country in 

time of need and should be punished; or he is one who displayed 

most effectively and selflessly the illegality and immorality of the 

government’s foreign policy in Indochina and should be thanked. 

With the assertions that the government has ended its involvement in 

Indochina, thoughts are being directed toward the war resister.13

9. Id. at 153-54; see S. Hersh, My Lai 4 (1971). 10. See Vietnam Veterans Against the War, The Winter Soldier Investigation: An Inquiry Into American War Crimes (1972); T. Taylor, Nuremberg and Vietnam: An American Tragedy (1971). 11. See R. Littauer & N. Uphoff, The Air War in Indochina 91, 241 (rev. ed. 1972); J. Lewallen, Ecology of Devastation: Indochina (1971); B. Weisberg, ed., Ecocide in Indochina (1970); St. Louis Post-Dispatch, Aug. 5, 1972, § A (editorial) at 4, col. 2: “Defense Department figures cited by 

Congressional Quarterly indicate that from the beginning of 1965 through 

May of this year the United States expended 27 billion pounds of munitions 

in North and South Vietnam, Laos and Cambodia. That amounts to 542 

pounds of explosives for every inhabitant and 97,000 pounds for every square 

mile. It does not include herbicides dumped on more than 5,700,000 acres of 

forest and crop land or 750,000 acres of land cleared by bulldozers. All 

this has been done by a modern, enlightened, industrial country to a small 

Asian peasant society. What did Indochina do to deserve this? Perhaps 

someone in Washington has an answer.” See also Pfeiffer and Westing, Land War, Three Reports, 13 Environment 2 (1971). 12. See H. Brown & D. Luce, Hostages of War Saigon’s Political Prisoners (1973); L. Tri & M. McNabb, Aid to Thieu (1972); N.Y. Times, March 27, 1973, at 1, cols. 6-7; N.Y. Times, March 27, 1973, at 2, cols. 1-3; The Guardian, September 18, 1971, at 6.

13. See Freeman, An Historical Justification and Legal Basis for Am ­

nesty Today, 1971 Law & Soc. Order 515; Gosfield, Legal Status of American War Resisters Abroad, 5 Int’l Law and Politics 503 (1972); Jones & Raish, American Deserters and Draft Evaders: Exile, Punishment or Amnesty?

13 Harv. Int’l L.J. 88 (1972); Wick, The Case for an Unconditional, Universal
59

The question is, does one grant an amnesty to those who followed the 

philosophy of the Senator’s declaration and refused to fight in Indochina?

“Now, therefore, be it known that I . . . President of the United 

States of America, by virtue of the power and authority vested in me 

by the Constitution, do hereby proclaim and declare without reservation or condition, a full and complete pardon and amnesty to all 

persons.” With words similar to these, presidents have granted amnesty to rebellious citizens, pirates, political prisoners, Confederate 

soldiers, American Indian Nations, polygamous Mormons, Philippine 

Nationalists, ex-convicts, deserters, and draft resisters.14

Amnesty for Draft Evaders and Armed Forces Deserters, 22 Buffalo L. Rev. 

311 (1972); St. Louis Post-Dispatch, March 18, 1973, § (pictures), at 16; St. 

Louis Post Dispatch, April 4, 1973, § B, at 1, cols. 1-2; St. Louis Post Dispatch, 

May 7, 1973, § E, at 5, cols 1-7.

14. Harvey, Proposal To Bring the Outcasts Home Without Punishment,

Vol. 118, Cong. Rec. S9256 (daily ed. June 13, 1972). Mr. Harvey includes in 

his article the following list of amnesties in American history, including date, 

issued by, persons affected, and natu re of action:

July 10, 1795, Washington, Whiskey Insurrectionists (several hundred). 

General pardon to all who agree to thereafter obey the law.

May 21, 1800, Adams, Pennsylvania Insurrectionists. Prosecution of participants ended. Pardon not extended to those indicted or convicted.

October 15, 1807, Jefferson, Deserters given full pardon if they surrendered within four months.

Feb. 7, 1812, Oct. 8, 1812, June 14, 1814, Madison, Deserters—3 proclamations. Given full pardon if they surrendered within 4 months.

Feb. 6, 1815, Madison, [Barrataria] pirates who fought in War of 1812 

pardoned of all previous acts of piracy for which any suits, indictments or 

prosecutions were initiated.

June 12, 1830, Jackson (War Department), Deserters, with provisions: (1) 

those in confinement returned to duty, (2) those at large under sentence of 

death discharged, never again to be enlisted.

Feb. 14, 1862, Lincoln (War Department), Political prisoners paroled.

July 17, 1862, (Confiscation Act), Congress, President authorized to extend pardon and amnesty to rebels.

March 10, 1863, Lincoln, Deserters restored to regiments without punishment, except forfeiture of pay during absence.

Dec. 8, 1863, Lincoln, Full pardon to all implicated in or participating in 

the ‘existing rebellion’ with exceptions and subject to oath.

Feb. 26, 1864, Lincoln (War Department), Deserters’ sentences mitigated, 

some restored to duty.

March 26, 1864, Lincoln, Certain rebels (clarification of Dec. 8, 1863, 

proclamation).

March 3, 1865, Congress, Desertion punished by forfeiture of citizenship; 

President to pardon all who return within 60 days.

March 11. 1865, Lincoln, Deserters who retu rn to post in 60 days, as 

required by Congress.

May 29, 1865. Johnson, Certain rebels of Confederate States (qualified).

July 3, 1866, Johnson (War De partm ent), Deserters returned to duty without punishment except forfeiture of pay.

Jan. 21, 1867, Congress, Section 13 of Confiscation Act (auth ority of 

President to grant pardon and amnesty) repealed.

Sept. 7, 1867, Johnson, Rebels—additional amnesty including all but 

certain officers of the Confederacy on condition of an oath.

July 4, 1868, Johnson, Full pardon to all participants in ‘the late rebellion’ except those indicted for treason or felony.

Dec. 25, 1868, Johnson, All rebels of Confederate States (universal and 

unconditional).

May 23, 1872, Congress, General amnesty law reenfranchised many thousands of former rebels.
60

While the subject is not foreign to American history, few current 

subjects elicit a greater spectrum of response than that of amnesty 

toward the war resister. Some favor giving him an unconditional 

amnesty; others would deny amnesty entirely, and still others would 

grant amnesty with certain conditions precedent.15 Amnesty itself is not a complex subject. The innumerable responses, however, from 

various segments of the citizenry make amnesty an extremely sensitive topic.10 Rather than attempt to explore all facets of the spectrum, this comment will examine the judiciaries’ involvement with 

the amnesty question when it reached the courts and will offer an 

argument for an unconditional amnesty for all war resisters.

I. Amnesty: A Greek Term Meaning Forgetfullness

or Oblivion

The judiciary has played an extremely important role in defining amnesty, in judging the constitutionality of amnesty, in declaring who is eligible for amnesty, and in examining under what conditions amnesty is allowed.

Article II, § 2 of the Constitution of the United States reads, in 

part, the President “shall have the Power to grant Reprieves and

May 24, 1884, Congress, Lifted restrictions on former rebels to allow jury duty and civil office.

Jan. 4, 1893, Harrison, Mormons [Church of the Latter Day Saints] — liability for polygamy amnestied.

Sept. 25, 1894, Cleveland, Mormons—in accord with above.

March, 1896, Congress, Lifted restrictions on former rebels to allow ap­ pointment to m ilitary commissions.

Jun e 8, 1898, Congress, Universal Amnesty Act removed all disabilities 

against all former rebels.

July 4, 1902, T. Roosevelt, Philippine insurrectionists. Full pardon and 

amnesty to all who took an oath recognizing ‘the supreme authority of the 

United States of America in the Philippine Islands.’

Jun e 14, 1917, Wilson, 5,000 persons under suspended sentence because of change in law (not w ar-related).

Aug. 21, 1917, Wilson, Clarification of June 14, 1917, proclamation

March 5, 1924, Coolidge, more than 100 deserters—as to loss of citizenship for those deserting since WW I armistice.

Dec. 23, 1933, F. Roosevelt, fifteen hundred convicted of having violated 

espionage or draft laws (World War I) who had completed their sentences.

Dec. 24, 1945, Truman, several thousand ex-convicts who had served in 

WW II for at least one year.

Dec. 23, 1947, Truman, 1,523 individual pardons for draft evasion in WW 

II based on recommendations of President’s Amnesty Board. [The Board reviewed the cases of 15,805 alleged offenders. Of the 1,523 pardoned all had 

been convicted and had served part or all of their sentence.]

Dec. 24, 1952, Truman, Ex-convicts who served in armed forces not less 

than 1 year after June 25, 1950.

Dec. 24, 1952, Truman, All persons convicted for having deserted between August 15, 1945, and June 1950.

[In addition, treaties with the Indian Nations frequently contained a 

general amnesty for all past offences against the laws of the United States, 

e.g., Treaty with the Cherokee Indians, July 19, 1866; Treaty with the Choctaws and Chickasaws, April 28, 1866; Treaty with the Creek Indians, July 4, 1866.]

15. See Newsweek, Janu ary 17, 1972, at 20.

16. See St. Louis Post-Dispatch, March 9, 1973, § A, at 9, col. 1.
61

Pardons for Offences against the United States, except in cases of 

Impeachment.”17 Mr. Chief Justice Marshall expounded upon article 

II, § 2, and provided the often quoted definition of an executive pardon:

The Constitution gives to the president, in general terms, ‘the 

power to grant reprieves and pardons for offences against the 

United States.’

As this power had been exercised from time immemorial by 

the executive of that nation whose language is our language, and 

to whose judicial institutions ours bear a close resemblance, we 

adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner 

in which it is to be used by the person who would avail himself 

of it.

A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law 

inflicts for a crime he has committed. It is the private, though 

official act of the executive magistrate . . . ,18

In a later decision, Mr. Justice Wayne added that pardon “[I]s 

forgiveness, release, remission. Forgiveness for an offence, whether it 

be one for which the person committing it is liable in law or otherwise.”19 He went on to note that historically, “A pardon is said by 

Lord Coke to be a work of mercy, whereby the king, either before attainder, sentence, or conviction, or after, forgiveth any crime, offence, 

punishment, execution, right, title, debt, or duty, temporal or ecclesiastical.”20 Citing similar historic precedent, a later court declared, 

“A pardon is an act of mercy flowing from the fountain of bounty 

and grace; its effect, when it is a full pardon, is to obliterate every 

stain which the law attached to the offender, to place him where he 

stood before he committed the pardoned offense, and to free him from 

the penalties and forfeitures to which the law had subjected his person and property . . . .”21

In Ex parte Garland,22 the Court attempted to distinguish between 

pardon and amnesty:

It may be said generally, we think, tha t pardon is usually 

granted to an individual; amnesty to a class of persons, or to a 

whole community.

Pardon usually follows conviction, and then its effect is to 

remit the penalty. Amnesty usually precedes, but it may follow 

trial and conviction, and its effect is to obliterate the past, to leave 

no trace of the offence, and to place the offender exactly in the 

position which he occupied before the offence was committed, or 

in which he would have been if he had not committed the offence.23

17. U.S. Const, art. II, § 2.

18. United States v. Wilson, 32 U.S. (7 Pet.) 150, 160 (1833).

19. Ex parte Wells, 59 U.S. (18 How.) 307, 309 (1855).

20. Id. at 311.

21. United States v. Athens Armory, 24 F. Cas. 878, 884 (No. 14,473) 

(N.D. Ga. 1868); see Osborn v. United States, 91 U.S. 474 (1875).

22. 71 U.S. (4 Wall) 333 (1866).

23. Id. at 351.
62

Furthermore, the Court declared that the power to pardon was unlimited and that,

A pardon reaches both the punishment prescribed for the offence 

and the guilt of the offender; and when the pardon is full, it re ­

leases the punishment and blots out of existence the guilt, so 

that in the eye of the law the offender is as innocent as if he had 

never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the 

penalties and disabilities, and restores him to all his civil rights; 

it makes him, as it were, a new man, and gives him a new credit 

and capacity.24

A state court25 discriminated further between pardon and amnesty, arguing that pardon is usually granted by the crown or the 

executive, while amnesty is usually granted by Parliament or the 

Legislature:

Pardon and amnesty are not precisely the same. A pardon is 

granted to one who is certainly guilty, sometimes before, but usually 

after conviction. And the court takes no notice of it, unless pleaded, 

or in some way claimed by the person pardoned; and it is usually 

granted by the crown or by the executive. But amnesty is to 

those who may be guilty, and is usually grante d by Parliament, or 

the Legislature; and to whole classes, before trial. Amnesty is 

the abolition or oblivion of the offense; pardon is its forgiveness.20

The federal court, however, was unwilling to make the distinction of a pardon and amnesty. The Court in U.S. v. Klein,21 for ex­ ample, expressly stated, “To the executive alone is intrusted [sic] the 

power of pardon; and it is granted without limit. Pardon includes 

amnesty.”28

Mr. Justice Field argued that to seek a distinction between a pardon and an amnesty is to pursue a study of linguistics:

Some distinction has been made, or attemp ted to be made, between 

pardon and amnesty. It is sometimes said tha t the latter operates 

as an extinction of the offence of which it is the object, causing 

it to be forgotten, so far as the public interests are concerned, 

whilst the former only operates to remove the penalties of the offence. This distinction is not, however, recognized in our law. The 

Constitution does not use the word ‘amnesty’; and, except that 

the term is generally employed where pardon is extended to whole 

classes or communities, instead of individuals, the distinction between them is one rather of philological interest than of legal importance .29

He added,

A pardon is an act of grace by which an offender is released from 

the consequences of his offence, so fa r as such release is practicable 

and within control of the pardoning power, or the officers under 

its direction. It releases the offender from all disabilities imposed 

bv the offence, and restores to him all his civil rights. In con24. Id. at 380-81.

25. State v. Blalock, 61 N.C. 242 (186 7).

26. Id. at 247.

27. 80 U.S. (13 Wall) 128 (1871).

28. Id. at 147.

29. Knote v. United States, 95 U.S. 149, 152-53 (1877).
63

templation of law, it so far blots out the offence, tha t afterwards 

it cannot be imputed to him to prevent the assertion of his legal 

rights. It gives to him a new credit and capacity, and rehabilitates 

him to that extent in his former position. But it does not make 

amends for the past. It affords no relief for what has been suffered by the offender in his person by imprisonment, forced labor, 

or otherwise; it does not give compensation for what has been 

done or suffered, nor does it impose upon the government any obligation to give it. 30

Finally, in Brown v. Walker,31 the Court asserted, “The distinction 

between amnesty and pardon is of no practical importance.” 32

A pardon or amnesty, moreover, can be of a particular type or 

class. As Mr. Justice Wayne denoted in Ex parte Wells,33

They are general, special, or particular, conditional or absolute, 

statutory, not necessary in some cases, and in some granta ble of 

course. Sometimes, though, an express pardon for one is a pardon 

for another, such as in approver and appellee, principa l and accessary in certain cases, or where many are indicted for felony in 

the same indictment, because the felony is several in all of them, 

and not joint, and the pardon for one of them is a pardon for all, 

though they may not be mentioned in it; or it discharges sureties 

for a fine, payable at a certai n day, and the king pardons the 

principal; or sureties for the peace, if the principa l is pardoned, 

after fo rfeiture.34

Mr. C hief Justice Marsh all in U.S. v. Wilson35 advised that “A pardon may be conditional; and the condition may be more objectionable 

than the punishment inflicted by the judgm ent . . . . [The pardon] 

may be absolute or conditional.”36

An amnesty or pardon restores to the one receiving it his or her 

complete civil rights. One who wishes to have property rights restored, however, often fails. For once a judi cial sale is made by the 

court with proper jurisdiction, the sale is complete, even though 

judgment might later be reversed for error:

Neither does the pardon affect any rights which have vested in 

others directly by the execution of the judgme nt for the offence, or 

which have been acquired by others whilst tha t judgme nt was in 

force. If, for example, by the judgment a sale of the offender’s 

property has been had, the purchaser will hold the property notwithstanding the subsequent pardon. And if the proceeds of the 

sale have been paid to a party to whom the law has assigned them, 

they cannot be subsequently reached and recovered by the offender. The rights of the parties have become vested, and are as 

complete as if they were acquired in any other legal way.37

Such a situation has been infrequent because an amnesty has often stated as a condition precedent that the grantee disclaim any reversionary interest in the property once owned. For example, Lin30. Id. at 153-54.

31. 161 U.S. 591 (1895).

32. Id. at 601.

33. 59 U.S. (18 How.) 307 (1855).

34. Id. at 310.

35. 32 U.S. (7 Pet .) 150 (1833).

36. Id. at 161. 37. Knote v. United States, 95 U.S. 149, 154 (187 7).
64

coin’s proclamation of December 8, 1863, granted a full pardon to 

those who “participated in the existin g rebellion . . . with restoration 

of all rights of property, except as to slaves, and in property cases 

where rights of third parties have intervened. . . . ”.38 The only way 

in which one pardoned could regain control of the contested property 

would be if the property had not vested in a third person but 

instead remained under the control of the executive, his officers, or 

a judic ial tribunal:

Where, however, prope rty condemned, or its proceeds have not 

thus vested, but remain under control of the Executive, or of officers subject to his orders, or are in the custody of the judicial 

tribunals, the property will be restored or its proceeds delivered 

to the original owner, upon his full pardon. The prope rty and 

the proceeds are not considered as so absolutely vesting in third 

parties or in the United States as to be unaffected by the pardon 

until they have passed out of the jurisdiction of the officer or 

tribunal.39

Thus, the judiciary defined a pardon or an amnesty as an act 

of grace, a forgiveness for an offence, an act of mercy. The attempt 

to differentiate between a pardon and an amnesty, the former being 

granted by the executive to an individual, the latter being granted 

by the legislature to a class, is not firm ly established in judicial decisions. And to attempt to distinguish between the two is to seek a 

distinction without a difference:

In respect to the claim that ‘amnesty is a large r power than pardon,’ it is difficult to conceive how amnesty, which by any recognized definition is no more than a grant of entire freedom from a 

penalty or the consequences of a crime, can be of any higher significance or effect than a full and complete pardon for the same 

crime, or how it can differ from such a pardon in its nature, extent, effect, or application.40

A . Autho rity to Pardon

The political history of the republic could lead one to conclude 

that the framers of the Constitution intended to vest in the executive the power to grant a pardon for offences against the United States. 

Jam es Madison’s Journal provides some of the constitutional history 

of article II, § 2:

Saturday, August 25th

Mr. Sherma n moved to amend the ‘power to grant reprieves 

and pardons,’ so as to read, ‘to grant reprieves until the ensuing 

session of the Senate, and pardons with consent of the Senate.’

On the question,—Connecticut, aye,—1; New Hampshire, Massachusetts, Pennsylvania, Maryland, Virginia, North Carolina, South 

Carolina, Georgia, no—8.

38. By the Presid ent of the United States of America: A Proclamation, 

No. 11, December 8. 1863.

39. Knote v. United States, 95 U.S. 149, 154 (1877).

40. L.C.K., The Power of the Presid ent to Grant a General Pardon or

Amnesty for Offences Against the United States (pts. 1-2 ), 8 Am. L. Reg. (new series) 513, 525-26 (1869).
65

The words, ‘except in cases of impeachment,’ were inserted, 

nem. con., after ‘pardons.’

Monday, August 27th

In Convention,—Article 10, Section 2, being resumed,—

Mr. L. Martin moved to inser t the words, ‘after conviction,’ 

afte r the words, ‘reprieves and pardons.’

Mr. Wilson objected, tha t pardon before conviction might be 

necessary, in order to obtain the testimony of accomplices. He 

stated the case of forgeries, in which this might particularly happen.

Mr. L. Martin w ithdrew his motion.

Saturday, September 15th

Article 2, Sect. 2. ‘He shall have power to grant reprieve s and 

pardons for offences against the United States,’ & c.

Mr. Randolph moved to except ‘cases of treason .’ The prerog ative of pardon in these cases was too great a trust. The Presid ent 

may himself be guilty. The trait ors may be his own instruments.

Col. Mason supp orted the motion.

Mr. Gouvern eur Morris had rather there should be no pardon 

for treason, than le t the power devolve on the Legislature.

Mr. Wilson. Pardon is necessary for cases of treason, and is 

best placed in the hands of the Executive. If he be himself a party 

to th e guilt, he can be impeached and prosecuted.

Mr. King thought it would be inconsistent with the constitutional separati on of the Executive and Legislative powers, to let 

the preroga tive be exercised by the latte r. A legislative body is 

utte rly unfit for the purpose. They are governed too much by 

the passions of the moment. In Massachusetts, one assembly would 

have hung all the insurgents in that State; the next was equally 

disposed to pardon them all [Shay s Rebellion]. He suggested the 

expedient of requir ing the concurrence of the Senate in acts of 

pardon.

Mr. Madison admitted the force of objections to the Legislature, 

but the pardon of treasons was so peculiarly improper for the 

Presiden t, that he should acquiesce in the tran sfer of it to the former, rather than leave it altogether in the hands of the latter. He 

would prefer to either, an association of the Senate, as a council of 

advice, with th e P resident.

Mr. Randolph could not admit the Senate into a share of the 

power. The great danger to liberty lay in a combination between 

the Presid ent and t hat body.

Col. Mason. The Senate has alread y too much power. There 

can be no danger of too much leinity in legislativ e pardons, as the 

Senate must concur; and the President moreover can require twothirds of both Houses.

On the motion of Mr. Randolph,—

Virginia, Georgia, aye—2; New Hampshire, Massachusetts, New 

Jersey, Pennsylvania, Delaware, Maryland, North Carolina, South 

Carolina, no—8; Connecticut, divided.41

Leg al authorities have noted and courts have held that the power 

to grant a pardon both is and is not exclusively in the hands of the 

president. In The Federalist, On the New Cons titution , Hamilton 

wrote,

41. E. Scott, J ournal of the Federal Convention Kept by James Madison 612-13, 734 (1894).
66

Bu t the principal argument for reposin g the power of pardoning in 

this case in the chief magi strat e, is this: in seasons of insurrection 

or rebellion, there are often crit ical moments, when a we ll-time d 

offer of pardon to the insurge nts or rebels may restore the tranqui lity of the comm onwealth; and which, if suffered to pass unimproved, it may neve r be possible afterward s to recall. The dilatory 

process of conv ening the legis lature, or one of its branches, for the 

purpose of obtaining its sanctio n, would freq uen tly be the occasion 

of lett ing slip the golden opportunit y. The loss of a week, a day, 

an hour, may sometimes be fat al. If it should be observed, that a 

discr etion ary power, with a view to such contingenc ies, mig ht be 

occasionally confe rred upon the president; it may be answered in 

the first place, that it is questionable, whet her, in a limited constitut ion, that power could be delegated by law ; and in the second 

place, that it would gen era lly be impolitic befor ehan d to take any 

step whic h mig ht hold out the prospect of imp unit y. A proceed ing 

of this kind, out of the usua l course, would be lik ely to be construed into an argum ent of timidity or of weakn ess, and would 

have a t endency to embolden gu ilt .42

When the legislative branch of the government attempted to frustrate an executi ve pardon, the court in Ex parte Gar land 43 declared 

that the president, for reasons, the sufficien cy of which he is the sole 

and exclusive judge , has the power to pardon. The effect of the 

pardon is to make it impossible for any legislative power to infli ct, 

constitutionally, any punishment whatever upon the one pardoned. 

Mr. Jus tice Field added,

The President had the righ t to grant an amne sty. The Con stitution gives him unlim ited power in respect to pardon, save only 

in cases of impeachme nt. The Constitu tion does not say what 

sort of pardon; but the term being generic nece ssari ly includes 

ever y species of pardon, indi vidu al as we ll as gene ral, conditional 

as well as absolute . . . . It exten ds to ever y offence know n to the 

law, and may be exerc ised at any time afte r its commission, either 

befor e legal proceedings are taken , or duri ng their pendency, or 

afte r conviction and judg men t. This power of the Pres iden t is not 

sub ject to legi slative contro l. Congress can neith er limit the effe ct 

of his pardon, nor exc lude from its exerc ise any class of offende rs.

The benign prero gative of mercy reposed in him canno t be fetter ed 

by any legi slative restrictions.44

A subsequent article on the power of the President to grant a general pardon or amnesty reinforced Mr. Justice Fie ld’s point-of-view:

The power of pardon conferred by the Constitu tion on the President 

is plen ary and unlim ited, exce pt in cases of impeachment. It is 

coex tens ive with the power to punish, and exten ds to ever y offen ce 

know n to the law ; and it may be exercised at any time afte r the 

commission of the offen ce, either befor e leg al proceed ings are 

taken , or duri ng thei r pende ncy, or afte r conv iction and judg men t.

Its exercise, and the mode of its exercise, are place d, with out condition or limi tatio n, who lly in the discretion of the President , and 

it is not subject to legi slative contro l. It includ es the power to 

grant conditiona l as well as absolute pardons, and of comm uting 

to a mild er punish ment that whic h has been adju dged again st the

42. A. Hamilton, J . Madison, J . J ay, The Federalist, On The New Constitution, 342-43 (1842).

43. 71 U.S . (4 Wa ll.) 333 (1866).

44. Id. at 351-52.
67

offender.45

Citing the Congressional proceedings and the debates on the Constitution, the author added that if the legislature were to exercise the 

pardoning power, it w ould not be authorized by the Constitution:

There is not only no express grant to Congress of power over the subject of a general pardon or amnesty, but no such power can rightfully be derived by implication as being necessary to carry into execution any power expressly granted by the Constitution; . . . The ‘clear conclusion’ would seem to be tha t the power to grant a general pardon or amnesty for offences against the United States is an executive and not a legislative power, and tha t it cannot be created, exercised, or controlled by any Act of Congress.46

In spite of the aforementioned historical and legal precedent to 

the contrary, courts have permitted the legislature to exercise what 

some believe to be solely an executive privilege. For example, in 

United States v. Hughes,41 the court stated, “W hile pardons are usually granted by the executive , the pardoning power by no means 

is confined to that branch of the government.” 48 Consequently, the 

court allow ed the Pennsylvania legislature to share in the executive’s 

pardoning powers. The court added,

From the very natu re of government, it requir es no reasoning to prove the self-evident proposition tha t in Pennsylvania the power of pardon was vested in the legislative branch by the in­ here nt power of the supreme lawmaking power and in the execu­ tive by constitutional provision. The grant of this power to the executive was no limitation on the right of the power granting it 

to exercise it also.49

And the Court in Brown v. Walker1

'

0 allowed the Congress to pass an 

act of general amnesty, granting immunity to witnesses. In dissent, 

Mr. Justice Field maintained his position init ially expressed in Ex

parte Garland*1

 and remarked,

But ther e is anoth er and conclusive reason against the statu te of Congress. It undertakes, in effect, to grant a pardon in certain cases to offenders against the law, that is, on condition tha t they will give full answers to certain interrogatories propounded. It declares that the alleged offender shall not be punished for his of­ fence upon his compliance with a certain condition. The legal ex­ emption of an individual from the punishment which the law pre­ scribes for the crime he has committed is a pardon, by whatev er name the act may be termed. And a pardon is an act of grace which is, so far as relates to offenders against the United States, 

the sole prerogative of the Presid ent to grant. . . .

45 L C K The Power of the President to Grant a General Pardon or Amnesty for Offenses Against the United States, 8 Am. L. Reg. (new series) 

513, 516 (186 9).

46. Id. a t 589. 47. 175 F. 238 (W.D. Pa. 1892).

48. Id. at 241-42.

49 Id at 242. 50. 161 U.S. 591, 601 (1895): “Although the Constitution vests in the Presid ent ‘power to gran t reprieves and pardons for offences against the United States . . .’ this power has never been held to take from Congress t he power to pass acts of general amnesty . . . 51. 71 U.S. (4 Wall.) 333 (18 66).
68

Congress cannot grant a pardon. That is an act of grace which can only be performed by the Presi dent. 52

Pursuing the theory that the Legislative branch has the legal 

authority to pardon because of its supreme lawm akin g powers and 

that the Exe cutive branch has the legal authority to pardon because 

of the constitutional provision, the authors of “The Authority of Congress to Grant Am nesty” 53 concluded,

In sum, there is no indication, either in the language of the Constitutio n or in the judicial exposition of government unde r the 

Constitution, that Congress is precluded from grantin g amnesty.

On the contrary, ther e is judicial recognition that an act of 

amnesty is legislative in character, and that Congress, by enacting 

types of legislation admitte dly within the scope of its constitutional 

authority, can achieve the effects of amnesty. The Court has ruled 

only tha t Congress may not restrict or limit the operation of a 

presidential pardon; in supplementing a presidential amnesty, or in 

enacting amnesty on its own authority, Congress would not violate 

the separation of powers. In short, Congress has plenary power 

under the Constitution to grant amnesty to any class of offenders, 

on such terms as it considers just. Furthe rmore, we have seen that 

Congress is given the constitutional auth ority to act on several differen t groups of war resistors by the granted powers enumerated 

in Article I, section 8. Although the general welfar e clause will 

probably be of littl e assistance, the fourth, dealing with natu rali ­

zation powers, will allow Congress to touch those who have renounced their American citzienship [si c]. The clauses concerning 

the powers of Congress are porbably [sic ] the most important in 

this area. They allow Congress to alleviate problems arising directly from the war; all categories of resistors can be included here.

The admitte d power of conscription implied by clauses twelve and 

thirteen , when coupled with the power to define and punish crimes 

in the elastic clause, gives Congress the ability to act on those 

who have violated the Selective Service Act directly. Military 

violators, as well as civilians attached to the military, fall under 

Congressional aegis as a resul t of the clause pertaining to government of the armed forces. In conclusion, once the overall power 

to amnesty is established, Congress will have the constitutional 

means to affect any and all groups it wished to.54

Moreover, the artic le noted approvingly that Mr. Justice Holmes in 

Biddle v. Perovich55 retreated from the broad statement expressed 

by Mr. Chief Justice Marshall in United States v. Wilson50 regarding the executiv es authority to gra nt pardons:

A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determ ination of t he ultimate 

authority that the public welfare will be bett er served by inflicting 

less th an what the judgme nt fixed.57

52. 161 U.S. at 638.

53. Hearings Before the Subcommittee on Administrative Practice and Procedure of the Committee on the Judicia ry, Selective Service System Pro ­ cedures and Administrative Possibilities For Amnesty, 92d Cong., 2d Sess., at 490 (1972 ) [her eina fter cited as 1972 Hear ings]. 54. Id. at 501.

55. 274 U.S. 480 (1927).

56. 32 U.S. (7 Pet .) 150 (183 3).

57. Biddle v. Perovich, 274 U.S. 480, 486 (19 27).
G9

Thus, one can conclude that both the Exec utive and the Legislative branches have exercised the power to pardon and that “ [W]hile 

the Constitution vests in the President authority to grant reprieves 

and pardons, it nowhere expressly prohibits Congress from exercising 

a similar power concurrently. The languag e of the constitutional provision dealing with pardons is not, in terms, an exclusi ve grant; it 

does not vest the pardoning power in the President, but only confers on him ‘power to grant reprieves and pardons . . . .” 58

B. Eli gib ilit y for Pardon

The judiciary, in addition, has been called upon to decide who is 

and who is not eligible for amnesty. For instance, in Ste tler ’s Cas e,69

a witness was presented for the prosecution. The defense objected to 

his testimony, calling it incompetent, but when the witness produced 

a pardon he was allowed to be sworn and testified to a fact material 

in the cause. On appeal, however, the district judge reversed the 

trial court’s decision not because the witness was a convicted, yet 

pardoned, felon, but because the pardon granted by President Millard 

Fillm ore was incomplete and incorrect and thus ineffectual. The witness’ testimony was ruled incompetent. Although never challeng ­

ing the president’s authority to pardon, the judge suggested that 

there be a reasonable relationship between the pardon and the conviction:

Ther e is noth ing of whic h we can tak e hold, to connect the 

pardon wit h the conviction , and thus to make them commensurate.

We must begin by assum ing that ‘June term ’ means ‘Ma y sessions’ ; 

nex t, that the offe nce of counter feiting includes the independent 

felo ny of uttering, and then that a sentenc e to fin e and impris onment is suf ficien tly described as a sentenc e of imprisonme nt; and, 

if either of these assumpti ons is too broad, there is nothing lef t 

for us but an interpreta tion of the instr umen t ex vis cer ibu s suis,

without refere nce to any thin g beyond. We canno t, by jud ici al construction, expa nd the pardon of one felo ny into a pardon of two; 

and unless we do this, the pardon, thoug h it be not void, has no 

appl ication to the felo ny of whic h Geo rge was conv icted under 

the second count of the indictment again st him. I must there fore 

hold that the witness, notw ithstandin g the pardon, was incom petent, propter delictum , and that the prisoner is entitled to a new 

trial .60

Possibly the most bounteous interpretation of who was eligible 

for amnesty came during and followin g the Civil War. Stating that 

the intent of amnesty was to “l ull strife to sleep,” the court in State

v. Bla lock ,61 remarked,

It [amnesty] embrac es all who may be supposed to hav e committed 

crimes or injuries by reason of their connec tion with the late war, 

whether they were offic ers or privates, . . . whe ther they have

58. 1972 Hea ring s 492.

59. 22 F. Cas. 1314 (No. 13,380) (E.D. Pa. 1852).

60. Id. at 1316.

61. 61 N.C . 242 (1867).

31 -658 0 - 7 4 - 6
70

been convicted or not. . . . Those who were engaged in the fight 

were neighbors, and must meet each other, and live together 

either in oblivion and forgiveness of the past, or in hatred and 

strife. And, besides, it is to be expected as it is desirable, that 

those of the opposing sections who are not now neighbors will, in 

many instances, become so by removals; and the intercourse of a 

common people, and the duties of a common government will 

often throw them together.62

Furthermore, the judiciary has recognized that limitations may be 

placed upon those eligible for amnesty. In Haddix v. Wilson,63 for 

example, neither “guerillas” nor “unlicensed trespassers” were 

granted amnesty. While amnesty exonerated from legal responsibility all officers and soldiers of both the Federal and Confederate 

Armies, “Guerrillas, and others not acting under the color of military 

authority, are therefore still liable for double the value of the property unlawfully taken by them during the war. The legislature did 

not intend to relieve robbers without pretense of military authority.”64

While limiting the benefit of an amnesty to those who committed 

crime by reason of their involvement with the Civil War, the court 

in State v. Shelton66 offered a rather compassionate explanation on 

why an amnesty was extended to January 1, 1866, although hostilities 

officially ceased in the Spring of 1865;

In some portions of the State, and especially in t he West, where this 

homicide was committed, the people were divided, some fighting for 

the United States, and some against it, and many had to leave their 

homes and families. These persons had to return and meet each 

other, and learn of the destruction of their prope rty and the outrages to their families and friends. And our legislators knew that, 

just as the ocean is angry, long after the storm has passed, so the 

passions of many do not become calm in a day, afte r a war. And 

the object was to show the same clemency to criminals who acted 

under the frenzy of vengeance after the war, and up to Janua ry,

1866, for outrages committed during the war, as to those who 

committed the outrages. Amnesty is an act of grace, to be construe d liberally in favor of the subject; it being the highest respect 

to the government to suppose that its most amiable prerogative 

was not intended to be exercised sparingly.66

Furthermore, whether the eligible party accepts the pardon is irrelevant. In Biddle v. Perovich61 the executive commuted Perovich’s 

sentence from death by hanging to life in prison. Later the convicted murderer filed a Writ of Habeas Corpus, alleging that his removal from jail to a penitentiary and the order of the President were 

without his consent and thus without legal authority. Speaking for 

the Court, Mr. Justice Holmes noted, “Just as the original punishment 

would be imposed without regard to the prisoner’s consent and in the

62. Id. at 247.

63. 66 Ky. (3 Bush) 523 (18 68).

64. Id. at 526-27.

65. 65 N.C. 294 (1871).

66. Id. at 298.

67. 274 U.S. 480 (1927).
teeth of his will, whether he liked it or not, the public welfare, not 

his consent, determines what shall be done.”68 Holmes added, “The 

considerations that led to the modification had nothing to do with 

his wil l.” 69

In a recent decision, Air Trans. Ass ’n. v. Profe ssional Ai r Traffic

Cont r. Or g., 70 where the subject of the eligib ility for amnesty was 

suggested, the court replied,

I think I said before , and I say now, that those who kno win gly 

disobey a law must face the pena lty for the viola tion. The y have 

no righ t to amnesty. Neve rthel ess, the y are enti tled to fai r trea tment in the administration of penalties, to consideration of mitiga ting circum stances, and to a precedure that is such, as far as the 

court can assure, as to m ake the defen dants think it is fa ir .71

No doubt the court’s declaration that “Th ey have no right to amnesty” means that the defendants cannot receive amnesty from the 

court. For certainly the court could recognize the “right” to amnesty 

coming from either the execu tive or legislative branch of government. 

While acknowledging the limits of his judicial power concerning amnesty, the judge added, “ [T]he court has a duty to consider individual 

circumstances before determining whether to impose any penalty.” 72

Hence, in order to be eligible for amnesty and for the pardon to 

be recognized as valid by the court, the pardon must be complete 

and correct in form; it cannot be issued in error or ignorance; and 

it can be as restrictive or as broad as the executive or legislature 

intends. In addition, the pardon is not conditioned upon the eligible 

parties’ acceptance.

The judic iary, therefore, has been instrumenta l in shaping the 

concept of amnesty. The courts have defined the words amnesty and 

pardon based on Anglo -American law and history; they have affirmed the constitutionality of amnesty by citing the legislat ive history of article II, § 2; they have refused to permit the legislature’s 

statute to thwart the constitutional power of the executive to grant 

amnesty; and they have not allowed their own personal pique to 

jaundice their decisions:

I reach this conclusion not with out reluctance. The crime of 

the prisoner has been grave, for it involved not only the violation 

of the duty he owed as an Am erican citiz en to this coun try, but 

the breac h of the allegian ce he owed to this state, of whic h he has 

long been a resident and citizen, as wel l as an intende d outrage 

upon his neighbors and fello w-c itizens, whose prope rty he proposed 

to plund er. . . . Bu t my duty is to administe r the law, and to 

constru e this proclamation like a public statut e, according to its 

terms and lega l import. I am not at libe rty to withhold its benefit 

from any persons embraced by its terms whether they have been 

so e mbraced by inadv erten ce or design.73

68. Id. at 486.

69. Id. at 487.

70. 313 F. Supp. 181 (E .D .N .Y . 1970), cert, den ied, 402 U .S . 915 (1971). 71. Id. at 187.

72. Id.

73. In re Greatho use, 10 F. Cas . 1057, 1062 (No. 5,741) (N .D. Ca l. 1864).
72

I I. T he I ndochina W ar R esis ter

The subject of amnesty is, indeed, one which has been analyzed 

by the country’s most brilliant jurists. What, then, do these legal 

and historical precedents mean to the war resister74 who has refused 

to serve in the armed forces.

Both houses of the ninety-second Congress have introduced legislation supporting amnesty.75 The essential differences in the bills

74. It must be noted that war resistance takes many forms. The man 

in the sixties who married to escape conscription, the one who sired a 

child, the one who maintained a student deferment, the one who sought a 

iob which provided a deferment, the one who enlisted in the National Guard 

or the reserves, the one who played “gay” at his pre-induction physical, the 

one who drugged himself in the hope of failing the physical exam, the one 

who intentionally failed his m ental exam, the one who sought a conscientious 

objector classification, the one who fled the draft or the armed forces—all 

in their own way are war resisters. These popular and often used methods 

were burlesqued by Phil Ochs in “Draft Dodger Rag”:

I’m just a typical American Boy 

From a typical American town,

I believe in God and Senator Dodd 

And in keeping old Castro down.

And when it came my time to serve 

I knew better dead than red,

But when I got to my old draft board,

Buddy, this is what I said:

Chorus: Sarge, I’m only eighteen 

I got a ru ptured spleen 

And I always carry a purse,

I got eyes like a bat 

And my feet are flat,

My asthma’s getting worse.

O think of my career 

My sweetheart dear,

My poor old invalid aunt,

Besides I ain’t no fool 

I’m a-going to school,

And I’m working in a defense plant.

75. H.R. 5690, 92d Cong., 1st Sess. (1971), introduced by Congressman 

Edward Koch. The purpose of this bill is to amend the Military Selective 

Service Act of 1957, expanding the definition of “conscientious objector” to 

include conscientious opposition to military service in a particular war and 

providing certain registrants the opportunity of claiming exemption from 

military service as selective conscientious objectors irrespective of their selective service status.

S. 3011, 92d Cong., 1st Sess. (1971), introduced by Senator Robert Taft. 

This bill proposed to offer a conditional amnesty to persons who have 

failed or refused to register for the draft or who have failed or refused induction into the Armed Forces of the United States. This bill requires three 

years of alternative service and only draft resisters are eligible.

H.R. 12417, 92d Cong., 2d Sess. (1972), introduced by Congressman Koch. 

This is the same as the Taft proposal (S. 3011), but it requires two years of 

alternative service instead of three.

H.R. 12664, 92d Cong., 2d Sess. (1972), introduced by Congressman Koch. 

To approve and authorize amnesty or mitigation of punishment for certain 

persons who have illegally manifested their disapproval of the U.S. participation in the Southeast Asia War; and to provide for restoration of civil and 

political rights that have been lost or impaired by reason of such illegal acts. 

This bill gives the President the right to make all the major decisions such 

as: who will be granted amnesty, what rights will be restored to these 

people, and under what conditions, and when amnesty will be given.

H.R. 14175. 92d Cong., 2d Sess. (1972), introduced by Congresswoman 

Bella Abzug. This bill provides for a universal, unconditional amnesty without alternative service requirements. This amnesty would cover draft re-
73

are that only one, Congresswoman Bell a Abzug ’s, provides an amnesty for both draft resisters and deserters and requires no alternate 

service, whereas the others limit their effects solely to draft resisters 

and will require some form of alternative service. In short, Ms. Abzug 

supports a universal and unconditional amnesty; the others favor a 

conditional amnesty restricting eligibilit y to draft resisters.76 The 

anticipated response, to an amnesty is one of equity. How does one 

justify offerin g amnesty to some while others have served, fought, 

and sometimes died?

A . Am nes ty or No Am nes ty

One of the consequences of the war in Indochina is that it produced a class of American refugees who, unw illing to serve, either 

submitted to prosecution and were jaile d or else fled this nation’s 

authority and emmigrated.77 The issue of amnesty toward these men 

does not lend itself to a balancing of equities between those who 

served and those who refused. Does the grief of a fam ily who lost a 

loved one in Indochina diminish if another family realizes that their 

loved one can never return to the Unite d States? Is the soldier who 

was wounded and permanently disabled in Indochina made whole if 

another man is tried, convicted, and incarcerated for refusing to 

serve? Did it take any more courage to submit to conscription and 

figh t in Indochina than it did to leave one’s country, family, and 

friends with the knowledge that he might never be allowed to return? 

A mother whose son was killed in Vietn am testified, “However, I 

plead with you not to underestimate that it may have taken another 

kind of courage to go into exile or to j ail. It is not easy to go against 

the tide of public opinion in support of conscience.”78 It would, in 

reality, be both unconscionable and immoral to attempt to placate the 

loss, heal the wounds, or equate the courage of the war’s victims by 

vindictively denying amnesty to those who wish to accept it. To allow the attitude of retribution to enter into the subject of amnesty,

sisters, deserters, and those who have received less than honorable discharges from the service.

H.R. 12523, 92d Cong., 2d Sess. (1972), introduced by Koch. Same as 

H.R. 12417.

H.R. 12822, 92d Cong., 2d Sess. (1972), introduced by Koch. Same as 

H.R. 12664.

76. The amnesty proposed would not absolve individuals of crimes 

other than refusing induction or desertion. All war resisters, both draft 

dodgers and deserters, however, would receive amnesty for evasion and desertion.

77. St. Louis Post-Dispatch, March 18, 1973, § (pictures) at 16: Amnesty proponents, using Government and non-Government sources, say that 

40,000 to 70,000 war opponents have crossed into Canada. There are still 450 

exiles in Sweden, down from a high of 700. There are 5,000 men in the 

United States who have served jail time as Selective Service violators and 

25,000 who still could be prosecuted; estimated number of exiles: Time, Jan. 

10, 1972, at 15 (70,000); Newsweek, Jan. 17, 1972, at 19 (75,000).

78. 1972 Hearings, supra note 53, at 250.
74

to play one person, the wounded war veteran, for example, against 

the war resister is to compound the problem and fai l to see th at such 

an attitude pits victim against victim: “I t is the Vietnam policy that 

has made casualties and mercenaries and POW s and jailbird s and 

legal evaders and exiles of an entire generation of young Americans. 

They are all casualties. But now, one victim, the Vietn am dead or 

the Vietnam returnee, is used against another, the refugee.”79

Instead of further fragmen ting the nation over the rightness or 

wrongness o f the undeclared war in Indochina, amnesty could include 

provisions which might attempt to reconcile and heal the division 

within the society brought about by the war. While it is conceded 

that no act can return a loved one, heal a war damaged body or mind, 

or return to the man who served that year or more of his life, an 

amnesty proclamation could include adequate education and employment benefits for the veteran, increased medical attention for the 

maimed and crippled, and cash grants to provide for the dependents 

of men killed in Indochina. The war has victimized an entire nation. 

An amnesty which seeks to assist a ll whose lives have been tragically 

affected by it, might be more readily accepted.

Furthermore, amnesty must not be limited solely to the draft 

dodger; the deserter, too, must be included. Both are war resisters; 

their actions were brought about by the same cause. Many suggest 

that to limit amnesty to the draft dodger creates class discrimination:

To call for a general amnes ty for dra ft dodgers, on the one 

hand, and to decla re that milita ry deserters be jud ged on an ind ividu al basis, on the other hand, is to confu se wha t is at issue— 

conscio nable obje ction to t he war. . . .

In the main, deserters tend to be of lower class origin s, poorly 

educated, and inarticu late about the reason for thei r war resistance, 

whereas the draft dodgers tend to be of mid dle class backgr ounds, 

well educat ed, and articula te about their objections to the war.

. . . Dodgers usu ally have had the luxu ries of educat ion, fam ily 

connections, and sympathetic professional advice to help them 

form ulate their thin kin g before they are confronted with induct ion.

In contrast, the deserter stands quite alone in a hosti le militar y 

environme nt, the callousn ess and bru tali ty of whic h has made him 

come to terms with his personal involvem ent wit h the militar y 

and the wa r.80

A fear arises in others that the government will play one group of 

war resisters against another, pardoning the draft dodger and ignoring the deserter:

If a sign ificant number of dra ft resisters accept an amne sty which 

does not include deserters, over ha lf the community of war resisters 

in Can ada wi ll neve r be allow ed to retur n to the U .S . There is 

no hope that a second amnes ty would be passed if the init ial offe r 

is acceptable to a sign ificant numb er of dra ft dodgers. It is time 

for you to recognize the comm itmen t you made when you refused

79. Id. at 654.

80. A m e x -C an ad a, Ja n. -F eb ., 1972, at 18. A m e x -C an ad a is published by American s exiled in Can ada .
to go into the military. You must support the entir e community 

of war resisters.81

As James Reston, Jr. noted, “Draft refusal or draft evasion questions 

have larg ely been an issue for the colleg e educated. This is reflected 

in the exile population: the impulse to flee for the evader is abstract, political, whereas the impulse to flee for the deserter is often 

a gut reaction of outrage at what he sees in the military. . . . The 

Arm y must cease to be a primary escape from the Appalachias, the 

inner cities and the small towns of Ame rica.”82 And as Henry Scharzchild, Director of the Project on Amnesty of the Amer ican Civ il Lib ­

erties Union Foundation stated,

An amnesty that would cover only draf t refusers (as some propose) 

would compound the inequities already visited upon the young generation by the war and the draft. By and large, the middle class, 

white, well educated were spared from the milita ry service—they 

found shelter in the reserves, in college deferments, and in conscientious objection. The disporportionate burdens of fighting this 

war have fallen upon the poor, the less well educated, the black 

and other minority groups. But the same qualities of good education, middle class and white race in a general way also characterize 

those who refused to submit to compulsory military service and 

went to prison or into exile or underground. It is again the poor, 

the less educated, and the members of minority groups who contribu te a much large r proportion of the deserters, of those who 

submitted to induction and became aware only in the milita ry of 

the cruelties and irrationalities of the war. It is these men, too, 

who in glaringly disproportionate numbers have been tried by 

milita ry courts for various offenses and who have been given less 

than honorable discharges—impediments of the most serious natu re 

for thei r future lives and careers. It would be outrageous if amnesty, too, were to become an instrum ent of class and race discrimination, we are in effect so many other institutions and 

actions of our society. The circumstances which impelled these 

as well as those to draf t refusal or desertion are the same: the 

war and the draft. And the motives were usually the same: a 

refusal to submit to the machinery of the war, whether for religious, moral, ideological or personal reasons. All acts and failures to act, we urge, tha t arose out of the war, that would not 

have occurred but for the war, and tha t might be subject to criminal penalties, should be included in amnesty.83

Conditional amnesty requiring alternate service, which is essentially punitive in nature, seems hypo critical and contradictory. Innumerable men fled the country because they could not serve in the 

national interest in Vista or the Peace Corp; it was the Arm y or 

prison or exile.84 And it is contradictory to suggest that there are

81. Amex-Canada, March-April, 1972, at 29.

82. The New Republic, Oct. 9, 1971, at 22.

83. 1972 Hearings 303; see 1972 Hearings 194: “ [I ] think it would be 

very easy for the U.S. Senate to find amnesty for [sic ] an acceptable solution 

for people such as myself that have clear explanations for thei r actions and 

a constituency tha t you want to appease. But that you aren ’t nearly as inclined to give amnesty to the 19-year-olds who went AWOL because they 

were in love with the Chevrolet they left behind in Detroit. I think amnesty should be given to all people.”

84. See Amex-Canada, Jan.-Feb., 1972, at 17; St. Louis Post-Dispatch, 

April 20, 1973, § A, at 1 and 13:
7G

jobs in the national interest for war resisters when a sizable percentage of the nation’s work force is unemployed.85 A conditional amnesty, moreover, suggests that the nation establish a Trumanesque 

amnesty review board which would decide if the war resister is eligible for amnesty and if he is fulfilling or has fulfilled the condition 

precedent for amnesty. Such an amnesty review board would merely 

be an extension of the Selective Service System and the military, 

mirroring those very institutions which forced the war resister into 

prison or exile and from which the war resister fled.86

C. Unconditional Amnesty

An unconditional amnesty, however, for all war resisters would 

have innumerable benefits. First, as Ms. Abzug note,

It would release those imprisoned. It would immunize from criminal prosecution. It would expunge all criminal records. And it 

would require an honorable discharge to anyone who received 

other than an honorable discharge because of the violations I have 

mentioned [anyone who, in opposition to the war, absented himself 

from the Armed Forces]. . . . A further provision would require restoration of citisenship upon simply [sic] request to anyone who renounced his citizenship because of his opposition to the 

war. 87

Secondly, an unconditional amnesty would restore a trust in the government. A writer in Canada suggested, “An act of amnesty would 

go a long way toward restoration of faith of young Americans in 

their government.”88 Thirdly, an unconditional amnesty would affirm the notion that the nation is secure and is able to reconcile and 

pardon those who questioned its authority. At the conclusion of the 

Civil War, the government imposed no penalties on the vanquished, 

tried and executed no Confederate soldiers for treason, and forced 

no one into exile. Hopefully the compassion and foresight which dicWhen asked whether her son was interested in retur ning to this 

country, Mrs. Fred H. Wuest, Jr., . . . whose son Lawrence is teaching 

in New Guinea, said, ‘He never talks about it I guess he’d like to 

come back and visit.”

Mrs. Wuest, whose husband died two months afte r the couple 

visited their son in Toronto last December, said that she would ‘like 

to see him come back, but I don’t know if he would. He was pretty 

bitter.’

Young Wuest’s application to be declared a conscientious objector was rejected, and he was required to resign from the Peace 

Corps when he received his induction notice in 1970.”

85. See N.Y. Times, Jan. 6. 1973, at 1, col. 4.

86. 13 Harv. Int’l L.J. 124 n.268 (1972): “It is interesting to note that, 

with respect to the amount of time which must have been spent on each 

case, the members of the President’s Amnesty Board met only on weekends 

and holidays and provided their services on a voluntary basis.” “Given 

tha t the Board met only on weekends and holidays . . . and tha t 15,805 cases 

were considered over the course of about one year, the Board must have devoted to each individual case an average of less than five minutes.” Id. 

at 126 n.275.

87. 118 Cong. Rec. 62 (daily ed. April 20, 1972) (remarks by Rep. Abzug 

on H.R. 14175).

88. Amex-Canada, Jan.-Feb., 1972, at 33.
/7

tated those actions are still in existence.89

Lastly, an unconditional amnesty would recognize what the Supreme Court acknowledged in both Seeger v. United, States 90 and 

Welsh v. United States:91 men who have conscientious beliefs against 

war and unquestioned sincerity are exempt from military service. 

Specifically, the Court in Seeger noted that in resolving the problem 

of whic h Sele ctive Serv ice registrant is eligible for a conscientious 

objector exemption, “ [O]ne deals with the beliefs of diffe rent individuals who wi ll articulate them in a multitude of ways. . . . Local 

boards and courts . . . are not free to reject beliefs because they consider them ‘incomprehensible.’ ”92 Cer tain ly one could “ar ticulate” 

sincerely held beliefs through the “incomprehensible” act of selfimposed exile . In Welsh, Mr. Justice Black observed that one is exempted from milit ary service whose conscience is spurred by deeply 

held moral, ethical, or religious beliefs.93 Assu redly these moral, ethical, or religious belie fs could manifest themselves at different times 

in different men.

An argument against granting amnesty to the war resister is 

that both the Sele ctive Service System and the military provide administrative redress for the person and that the war resister failed 

to exhaust these civilian and military remedies. Cer tain ly Welsh and 

Seeger benefitted from follo wing codified administrative procedures 

which eventually led to judicial revie w. Many other war resisters, 

however, did not possess the lega l and administrative expe rtise demonstrated by either Welsh or Seeger. Military and Selective Serv ice 

Counselors at the Univers ity of Wisconsin declared, “Experience leads 

us to the conclusion that upwards of 90% of all of the men who are 

in Canada as the result of an effo rt to avoid the draft are there because they wer e unable to obtain accurate information and competent 

and responsible counseling. Many, if not most, are there because they 

misunderstood the alternativ es which were open to them under the 

law .”94

Mr. Robert Ransom, whose eldest son was kille d in Vietnam , testified that when his son died and with two sons subje ct to the Sele ctive Service System and three others following, he was determined 

to become as expert as possible in the intricacies of Selective Service 

law:

In my efforts to educate myself, I became appalled at how 

little sound, legal advice there actually was available to our 

young men, in spite of the fact that the Selective Service statutes 

and regulations have always constituted a clearly defined body of

89.

90.

91.

92.

93.

94.

1972 H earings 185. 

380 U.S . 163 (196 5) 

398 U.S . 333 (197 0) 

380 U.S . at 184-85. 

398 U.S. a t 344. 

1972 H earings 319.
78

law, readily available to the legal profession as a source of additional practice. I find it significant that in the past 3 years I have 

counseled the sons of partners in several of New York’s largest 

law firms, and for no bett er reason than tha t their fathe rs could 

not find among their 100 to 200 partners and associates any lawyers 

who was [sic ] competent to even discuss dra ft matte rs intelligently.

The foregoing is significant only in tha t it indicates the vacuum 

into which we let our sons fall. They saw the inequities tha t 

abounded in the system, partic ularly in the era from 1967 to 1969.

Not only did the law itself have built-in injustices, but it was even 

more shocking to see the differences in the way the law was applied from one local board to another, often in neighboring towns.96

One should add th at eve n if the adminis trative and jud icial processes 

are successful, the lega l fees are beyond the means of most men. 

Fo r example, one notab le wa r resiste r, Muham mad Ali, expend ed 

appro xim ately 150,000.00 dollars to prove his conscientious objecto r 

claim.

The benefits of an uncond itional amnesty would ne ith er destroy 

military morale nor mak e the nation less secure. It is acknowledged 

th at the morale of the arm ed forces is low. Writin g in the Arme d

Forces Journal,96 Col. R obert D. Heinl, Jr. wa rned th at,

The morale, discipline and battlew orthine ss of the U.S. Armed

Forces are, with few salient exceptions, lower and worse than at 

any time in this century and possibly in the history of the United 

States.

By every conceivable indicator, our army tha t now remains in

Vietnam is in a state approaching collapse, with individual units 

avoiding or having refused combat, murdering thei r officers and 

non-commissioned officers, drug-ridden, and dispirite d where not 

near-mutinous.97

He sees countle ss anti-mi litary pressu res bein g brou gh t aga inst the 

arm ed forces from div erg ent sources. Un derground news papers, an timilitar y lawyers , off-b ase coffee houses, the Order of Maxim ilian 

(“a com munity of tu rb ul en t priests and clergy men”), the “an tiw ar 

show-biz front,” weak courts, all are contr ibu ting to low morale, accord ing to the author. Would an u ncondition al am nesty low er morale 

even further? As Pro fessor Com mage r suggested,

Quite aside from the observation that it is difficult to see how that 

morale could be any lower than it now appears to be—it is proper 

to say that ther e seems to be no objective evidence whatever to 

suppo rt this argument. It does not appear tha t amnesty worked 

this way in the past, in the relatively few instances where it was 

applied while the war was still going on. Nor is it irrel evan t to 

note, for what it is worth, that there is strong support for amnesty 

from a nu mber of vete rans’ organizations today.98

And as Ms. A bzug added,

[T ]h is country never has experienced significant difficulty in raising armies for its military endeavors. I have faith in the patriotism

95. Id. at 247-48; see F. Stevens, I f This Be Treason (19 70) . 96. Armed Forces Journal, June 7, 1971, at 1. 97. Id.

98. 1972 Hearings 188; see 13 Harv. Int’l L. J. 127 n. 281, 128 n. 285 (19 72).
79

of young Americans. I have faith that they would rise to defend 

this country if a national emergency really requir ed it. But I also 

have faith in their ability to think for themselves, to distinguish 

righ t from wrong where thei r Government’s policies are concerned, 

and to have the courage to resist official policies where they are 

manifestly immoral.09

Granted, the Director of Sele ctive Service, Curtis W. Tarr, stated 

that a ge neral amnesty would seriously disrupt inductions:

If the amnesty affected only those 300 or so men presently serving 

prison sentences, then inductions probably could continue but with 

some hard feelings among those ordered to report. If on the other 

hand, the amnesty made it possible for approxim ately 10,000 men 

who have been convicted since 1947, and 6,000 registrants who 

face possible prosecution, to retu rn to the full rights of citizenship 

without any penalty, then it would be difficult to justify the continuation of inductions. Our youth could not understand such opposing policies. I am certain that it would be nearly impossible to 

maintain membership on local boards as w el l. . . .

In short, I believe that any widespread program of amnesty 

would be incompatible with the continuation of inductions.10 0

Doubtless Mr. Tarr’s reservations, whether justifie d or not, are moot 

when one considers former Secretary of Defense Lai rd’s news release 

dated January 27,1973:

With the signing of the peace agreemen t in Paris today, and after 

receiving a repo rt from the Secretary of the Army that he foresees 

no need for further inductions, I wish to inform you that the 

Armed Forces henceforth will depend exclusively on volunteer 

soldiers, sailors, airmen and Marines. Use of th e draf t has ended.10 1

And perhaps most importantly, “Is there not something to be 

said for putting Government on notice, as it were, that if it plunges 

the nation into another war like Vietnam— it wi ll once again be in 

for trou ble” ?102 In his article, “Making a Rational Foreign Policy 

Now,” 103 Mr. Robert L. Heilbroner projected,

I would think that by the year 2000 and possibly much sooner, we 

would find revolutionary governments installed, or formidable revolutionary armies fighting, in most of Asia, in at least a halfdozen Latin-Am erican countries, and probably in a fair numbe r of 

nations in West and Central Africa, and the Near East.10 4

He argued, furthermore, that a policy of neutrali ty toward such wars 

of national liberation is imperative because “T he grea t lesson of the 

Vietnam war is now clear. It is that the mightiest nation in the world 

has not been able to defeat the forces of revolutio nary nationalism in 

one of the smallest nations in the world .” 105 An unconditional am99. 118 Cong. Rec. 62 (daily ed. April 20, 1972) (Remarks of Rep. Abzug on H.R. 14175).

100. 1972 Hearings 46-7. 101. News Release from Assistant Secretary of Defense (Public Affai rs), 

Washington, D.C., J anu ary 27, 1973.

102. 1972 Hearings 188.

103. Heilbroner, Making a Rational Foreign Policy Now, Harper’s Magazine 64 (Sept. 1968).

104. Id.

105. Id.
80

nesty would indirectly embrace a foreign policy of neutrality. It 

would illustrate that no longer would this country’s military be capable of marshalling tens of thousands of its young men to be used 

as anti-revolutionary forces without serious n ational repercussions.100

III . Conc lus ion

Both legal and histrical precedent indicates that either the legislativ e or the executi ve branch of government can grant an amnesty to Am erica ’s war resister. If exercised, the pardoning power can 

reaff irm the nation’s belief in itself and its institutions ,and it can indicate that the government can be both gracious and compassionate. 

The question of amnesty, therefore, can be answered in such a way 

as to help heal the divisions brought about by the war in Indochina. 

A government with the foresight and understanding to exercise this 

consitutional power will exhib it courageous statesmanship if the amnesty has m alice towards none and charity for all.

J ul ian C. Carey

106. See St. Louis Post-Dispatch, February 13, 1973, § C (editorials) at 

2: “Indeed, had the draft not been so readily available to President Johnson 

this country’s deep military involvement in Vietnam might never have taken 

place. . . See also Buffalo L. Rev. 319 n. 43 (1972).
81

Comment

American Deserters an d D ra ft Evaders:

Exile, Punishment or Amne sty?

BY

DOUGLA S W. JONES 

DAVID L. RAIS H

Reprinted from

TH E HARVARD IN TE RN AT IO NA L LAW REV IEW 

Volume 13, N umber 1 

Winter 1970
Comment

Ameri can Deserters and Draft Evaders:

Exile, Punishment or Amnesty?

DO UG LA S W. JON ES 

DAV ID L. RA ISH

INTR ODU CTION

At his news conference of Nov ember 12, 1971, Preside nt Nix on was 

asked the follo wing:1

Mr. President, do you foresee granting amnesty to any of the young 

men who have fled the Un ited States to avoid figh ting in a war 

that they consider to be imm oral ?

Th e Preside nt’s answer was, “No .” Wh atever the implications of this 

brief response, and whatever the motivations of these “you ng men,” 

the phen omenon of large numbers of draft-age Americans, including 

Americ an servicemen, fleeing to foreign countries has emerged as an 

issue of national concern.2

 This concern has been evidenced in public 

forums, 3

 in numerous articles in newspapers and periodicals,4

 and in

1. N. Y. Times, Nov. 12, 1971, at 10, col. 4.

2. It is not known precisely how many American deserters and dra ft evaders arc 

presently livin g abroad. Estimates vary widely, e.g., N. Y. Times, Feb. 5, 1970, at 8, 

col. 4 (6,0 00-60 ,00 0); Newsweek, Feb. 15, 1971, at 28 (50,000-7 0,000) . A num ber of 

unofficial sources cite a total of 50,000 in Canada alone. Canadian governm ent figures 

have shown over 60,000 draft-age American males living in the country. S. F. Chro nicle, Mar. 27, 1970, at 7, col. 5. The World Council of Churches estimates 50,000 

deserters and draft evaders in Canada. N. Y. Times, Dec. 8, 1970, at 13, col. 4. 

Canadian aid groups give estimates between 20,000 and 50,000. Letter from Bob Seeley, 

Central Comm, for Conscientious Objectors, Philadelphia, Pa., to the Harvard Inte rnational Law Journal, May n , 1971. See also Comment, Draft Resisters in Exile: Prospects and Ris /y of Return, 7 Colum. J. Law and Soc. Prob. 1, n. 1 (19 71), which 

estimated the num ber of exiles in Canada at 8,000-10,000.

3. See notes 159, 160, 161 & 286 infra and accompanying text.

4. See, e.g., Fleming, America’s Sad You ng Exiles, Newsweek, Feb. 15, 1971, at 28;
activities at various levels of government? As the American combat 

presence in Indochina decreases, public concern about the phenomenon 

may be expected to provoke a more elaborate official response. It is the 

purpose of this Com men t, therefore, to examine first, the methods by 

which deserters and dra ft evaders have gain ed entry into Can ada 

(which harbors the largest num ber of fugitiv es), and Sweden (whose 

governmen t has take n special steps to accommodate des erters); second,

the means by which the United States might gain jurisdictio n over 

deserters and evaders who have fled to these two countries; and third,

the punishm ent which these fugitives face upon return , and the legal 

and policy considerations und erly ing an executive or congressional 

decision on amnesty.

Th e term “deserter” as used here applies to all American servicemen 

who have made una uthorized depa rtures from their posts of duty and 

who have remained absent for over thirty days.* 56

 Th e term “draft 

evader” as used here includes Americans who evade or refuse registration with the Selective Service System7

 or service in the armed forces 

of the Un ited States.

Richard, American Deserters in Stockholm , Interplay, Sept., 1970, at 28; Lang, A Reporter at Large, New Yorker, May 23, 1970, at 42; Bess, What Drajt Resisters Face,

S.F. Chronicle, Mar. 27, 1970, at 7, col. 5; N. Y. Times, Feb. 5, 1970, at 8, col. 4; May

11, 1970, at 13, col. 1; Nov. 5, 1970, at 5, col. 3.

5. See notes 162-65 & 167 infra and accom panying text.

6. After 30 days of unauthorized absence, an absentee is “dropped from the unit 

rolls” and administratively classified as a deserter. Hearings Before the Sub com m. on

the Treatment of Deserters from the Military of the Sen. Com m, on the Arme d Services,

90th Cong., 2nd Scss. 4 (19 68). Compare this classification with the statutory definition, 

p. 107 infra. The Departm ent of Defense maintains systematic records of the total 

num ber of deserters. As early as 1968, the Dep artm ent reported tha t over 53,000 servicemen were classified as deserters over a twelve month period. S. Rep. No. 93, 91st 

Cong., 1st Sess. 24 (1969) . This figure prompted a subcommittee of the Senate Armed 

Services Comm ittee to conclude tha t “the total num ber of deserters and those who are 

una utho rized absentees is of such magnitude as to provide reason for serious and special 

concern by civilian and military officials of the Dep artm ent of Defense.” Id. at 32. The 

desertion problem has since intensified; during the first ten mon ths of fiscal year 1971 

the army alone reported 68,449 desertions, nearly double the army’s 1968 figure. N. Y. 

Times, Aug. 15, 1971, § 4, at 4, col. 7. If the total num ber is indicative of the num ber 

of deserters abroad, there is reason to believe tha t the num ber abroad has been increasing 

in recent years. In the two countries most popu lated with deserters, Canada and 

Sweden, it is though t tha t there are about 1100 deserters. N. Y. Time s, Feb. 5, 1970, 

at 8, col. 4 The Swedish governm ent has stated tha t 500-525 deserters are residing in 

Sweden. See note 33 infra and accompanying text.

7. To evade or refuse registration with the Selective Service System would include 

making or causing to be made false, imp roper or incorrect registration, classification, 

physical or mental examination, deferment, induction, enro llment or muster, or false 

statem ents under any provision of the act. This definition accords with the punishm ent 

provision of the act, 50 U.S.C. App. § 462(a ) (19 70). No official figures are publicly 

available on the num ber of draft evaders abroad. But see note 2 supra. The num ber 

is necessarily uncertain since most evaders have, for obvious reasons, been out 

of touch with official sources. Any estimate is, of course, complicated by the fact tha t 

many evaders have presumably left the country without registering for the draft.
84

STATUS OF AMERICAN DRA FT EVADERS AND DESERTERS 

IN CANADA AND SWEDEN

American military deserters and draft evaders seeking refuge abroad 

have had to consider how their status affects (i ) their ability to enter a 

foreign country and (2) their legal status vis-a-vis the United States 

while abroad. This second consideration breaks down into (a) whether 

the evader or deserter can be reached by formal extradition and (b) 

whether he is subject to deportation or other forms of removal to an 

area over which the United States exercises jurisdiction. These considerations will be discussed here as they apply to the recent experience 

of deserters and evaders attempting to settle in Canada and Sweden.

A. Immigration into Canada

Geographic proximity and cultural similarities have undoubtedly been 

as instrumental as any complex legal considerations in the movement 

of American draft deserters and evaders to Canada.8 There are no 

official Canadian or American estimates as to the number of evaders 

and deserters who have emigrated to Canada,9 but the Canadian government does estimate that emigration from the United States to Canada 

has doubled in the last ten years to approximately 25,000 annually, with 

most of the emigrants falling in the 20-29 year-old age bracket.10 Nor 

is it known how many evaders or deserters (1) currently enjoy visitor 

status;* 11 (2) reside in Canada illegally; or (3) have returned to the 

United States.

It is the announced policy of Canada not to discriminate against

8. Canada, whose foreign policy long mirrored tha t of the United States, has in recent 

years developed a distinct approach to foreign relations in some areas. This was the 

goal of a major reevaluation of foreign policy und erta ken in 1967. See Secretary of 

State for External Affairs, Foreign Policy for Canadians 38 (19 70) ; Departm ent of External Affairs, Perspectives in Foreign Policy, Statements and Speeches 70/1 (1970) . 

Canada has publicly condemned various aspects of the United States involvement in 

Indochina. See Department of External Affairs, Some Elemen ts of Canadian Foreign

Policy, Statements and Speeches 70 /9 (19 70).

9. Letter of Consul Allen Bryce, of the Canadian Consulate-General in New York, to 

Harvard International Law Journal, Oct. 20, 1971; but see notes 2 and 6 supra.

10. Canadian Press and Information Service, Statement of Mar. 25, 1971, New York, 

New York.

11. Th e Canadian Immigration Act, Can. Rev. Stat. c. 1-2 (1970), does not specifically limit the time an alien may stay in Canada as a visitor. Section 7(3) requires 

the alien to report to imm igration officials any change in status which would cause him 

to cease being a tourist or visitor, and section 7(4) allows the Immigration Minister 

to declare on his own initiative that the alien is no longer a tourist or visitor. Section 6 

establishes a presumption tha t the alien is an applicant for imm igrant status and not a 

tourist or visitor. Presum ably, taking a job in Canada, coupled with extended residence 

there, would establish the deserter or evader as no longer being either a tourist or 

visitor.
85

deserters or evaders seeking refuge in Canada.12 But neither does the 

draft evader or deserter benefit from any special provisions to ease the 

legal requirements for residency in Canada. To remain permanently in 

Canada, aliens must obtain “landed immigran t” status under the Immigration Act.13 This status is currently available with certain qualifications to those who achieve a minimum of fifty “points” on a purportedly 

objective rating system. Major point categories are as follows:

(a) i point for each year of formal education, vocational training 

or apprenticeship (maxim um 20);

(b) up to 15 points for skills or professions in high demand;

(c) up to 10 points for any other useful skill;

(d) 10 points if applicant is 18-35 years old;

(e) 10 points if applicant is applying from without Canada and has 

a firm job offer within Canada;

(f) 5 points each for fluency in English or French;

(g) 5 points if applicant has relatives in Canada at the place he 

wishes to live willing to assist him, 3 points if he has relatives 

anywhere in Canada willing to assist him; and

(h) up to 15 points on the basis of an interviewing officer’s personal evaluation of the applicant.14

Additionally, there are provisions, rarely invoked, whereby the fifty 

point minimum can be waived or a person scoring more than fifty 

points can be denied entry, at the discretion of the interviewing officer.15

Under the above schedule an eighteen year-old American applying 

either at the border or at a Canadian consulate, who speaks only English 

and has no special skills, but has arranged for unskilled employment in 

Canada, begins with a maximum of 37 points.16 Thus, the personal 

assessment of the interviewing Immigration Officer can be crucial. The 

interviewing officer has considerable latitude, since there are no standards in either the Immigration Act or the applicable Statutory Orders 

and Regulations17 as to what questions the Immigration Officer may 

ask the applicant. However, the Canadian policy not to discriminate 

against evaders and deserters presumably bars direct questions as to an 

applicant’s military status. A Canadian attorney active in immigration

12. Statement of Canadian Minister of Manpower and Imm igration MacEachen, 

quoted in N. Y. T imes, May 23, 1969, at 5, col. 1.

13. Can. Rev. Stat. c. 1-2 (1970) .

14. Imm igration Regulations, Part I, as amended, Can. Stat. Orders and Regs. No. 

67-434 O967>.

15. Can. Rev. Stat. c. 1-2 § 32(4) (19 70).

16. Education, 12; 18-35 years old, 10; knowledge of English, 5; job offer, 10: total 

of 37 points maximum.

17. Imm igration Inquiries Regulations, Can. Stat. Orders and Regs. No. 67-621 (19 67); 

Imm igra tion Regulations, Part I, Can. Stat. Orders and Regs. Nos. 62-36 (19 67), 64-327 

(19 64), 66-147 (1966), 67-434 (19 67).

31-65 8 0 - 74 - 7
86

law confirms that deserters and evaders are currently not discriminated 

against as such, but applicants of their age gro up sometimes suffer in 

isolated cases where an imm igra tion official might tend to discriminate 

in his personal assessments of young people evidencing “co unter-culture ” 

life styles, or, more importantly, where young applicants are unable to 

accumulate enoug h points under the education and skill categories.18

On some occasions, border authorities have reportedly refused entry 

to visitors and landed immigrant applicants and have sent them back to 

the Un ited States, while simultaneously notifying the American Fede ral 

Bureau of Investigation that the applicant was return ing.19 Such activity 

is not now officially sanctioned respecting dra ft evaders and deserters,20

tho ugh informal cooperation might be less accountable to official policy. 

A Can adia n official has acknowledged tha t such cooperation is sometimes given regarding other fugitives from American laws.21 By contrast, the applicant who enters Canada as a visitor and while there 

applies for landed immigrant status has a righ t to appeal a denial of 

his application to the Imm igratio n Appeals Board before he can be 

retu rne d to the Un ited States.22 (The Board has broad powers in 

reviewing the acts of lower officials, as discussed infr a at p. 105).

There are several fur the r obstacles to obtaining land ed imm igra nt 

status w hich could affect the A merican draft evader or deserter. Section 

5(1) of the Immig ration Act23 bars absolutely the entry of persons who 

have previously associated with any group which is reasonably believed 

to advocate or promote subversion of democratic gove rnment, unless 

the Immig ration Minister is convinced that entry would not be detrimental to Can adia n security. F urt her, section 5(m )24 provides a similar 

bar to anyone w ho has himself advocated subversion, and section 5 (n )25

bars those who might engage in espionage or other subversive activities. 

On occasion these provisions have reportedly been used to exclude 

Americ an stud ent radicals from Canada,26 but there are no reported 

cases in Can adia n courts involving this section of the Act.

Can ada also bars persons convicted of, or who have adm itted committin g, “ crimes of moral tu rpitude.”27 This bar has been held to extend 

even to cases where the person is convicted afte r entry on an indictm ent

18. Letter from Canadian Attorney Clayton C. Ruby to the Harvard International Law 

Journal, Feb. 23, 1971, at 5.

19. Id.

20. Telephone interview with Consul-General Bruce Rankin, Canadian ConsulateGeneral, New York, N.Y., Oct. 18, 1971.

21. Id.

22. Immigration Appeals Board Act, Can. Rev. Stat. c. I-3, § n (1970) .

23. Imm igra tion Act, Can. Rev. Stat. c 1-2, § 5(1) (1970).

24. Id. § 5( m ).

25. Id. § 5( n) .

26. Clayton Ruby letter, supra note 18, at 4.

27. Imm igration Act, Can. Rev. Stat. c 1-2, § 5(d) (1970).
87

returned before entry.28 No case to date has sought to apply the bar to 

those who have only been accused of a crime. The Immigration Appeals 

Board in Turpin v. Minister of M anpower and Immigration29 adopted 

the language of the Canadian court in Kin g v. Broods39 in defining 

“moral turpitude” as follows:

It appears clear that the crime must necessarily involve some element of depravity, baseness, dishonesty or immorality. This would 

probably include most offenses classed as felonies in the United 

States of America.

It is arguable that confessed draft evasion or desertion would fall within 

this interpretation of moral turpitude were it not for the official government policy not to discriminate against evaders and deserters for entry 

and immigration purposes. There is nothing in that policy, however, to 

warrant the implication that evaders or deserters who have committed 

other felonies (such as narcotics violations) would not be barred, although no cases dealing with this question have arisen in the Canadian 

courts.

Finally, the Immigration Act bars those aliens who might become 

public charges.31 Such a provision works a special hardship on the 

young deserter or evader without income, a job offer, or relatives in 

Canada.

In summary, the evader or deserter who desires the benefits of Canadian landed immigrant status faces an apparently objective scoring system tempered by a subjective evaluation of his character. In practice, 

although he faces no formidable entry barrier, the greatest obstacles to 

legally remaining in Canada indefinitely result from his youth and lack 

of education and financial resources. The only alternative to obtaining 

landed immigrant status is illegally overstaying after entering Canada 

as a visitor. Those found to have overstayed are subject to criminal 

penalties and deportation,32 though there is no evidence of any concerted 

effort by the Canadian government to identify and return overstaying 

deserters or evaders.

B. Immigration into Sweden

Far fewer Americans have found their way to Sweden. Since Ray 

Jones III, the first American deserter from the Vietnam war to go to

28. Hec ht v. McFaul and Attorney General of Province of Quebec, 1961 Que. Sup. Ct. 

392 (19 61).

29. 1 Imm igration Appeals Cases 1, 15 (1961).

30. 31 W.W.R. 673, 683 (i96 0) .

31. Immigration Act, Can. Rev. Stat. c. 1-2, § 5(h) (19 70).

32. Id. § 46 provides max imu m penalties of 6 months imprisonment an d/ or $500 

fine for a first offense; 12 months imprisonment an d/ or $1000 fine for a second offense; 

and 18 months imprisonment for a third or subseq uent offense.
Sweden, enter ed tha t country in January, 1967, only 500-525 deserters 

have followed, mostly from bases in nearby Germa ny. 33 There is no 

governm ent estimate of the num ber of dra ft evaders in Sweden, but 

distance from the United States has apparently kep t the num ber small. 

Swedish Prim e Minister Olaf Palm e stated in a June, 1970, interview34

that the total num ber of American refugees in Sweden is quite small 

compared with that of other refugee groups such as French Algerians 

and Czechs. Palme stressed that “the Swedish gov ernment does not 

encourage anyone to desert. Small groups in Sweden have been active 

in these affairs, but that has nothing to do with the governmen t.”340

Even if not elevated to the status of national policy, however, Swedish 

sympathy for American deserters has evidenced itself in the application 

of immigration laws to assist their imm igration into Sweden.34b

Imm igratio n into S weden is regulated by the Aliens Act of 195435 as 

implemente d by the Aliens Decree of May 23, 1969.36 As in Canada, 

entry itself does not pose special problems for the deserter or evader. 

How ever, an evader or deserter wishing to reside and work in Sweden 

for more than three mon ths must obtain both a residence perm it37 and 

a labor perm it.38

The re is nothing in the procedure established for obta ining a residence permit which works any special hardship on the deserter or 

evader. Application can be made before or after entry as a visitor.39

Permits are issued by the local police in the area in which the alien 

wishes to reside. Th e rules of the Na tion al Imm igratio n Board40 require 

a check to determine if the alien has a crim inal record.41 It is not clear 

whe ther a criminal conviction necessarily bars issuance of a perm it to an 

alien, though it is undo ubtedly taken into consideration. A residence

33. Telephone interview with Mr. M. Backman, Royal Swedish Embassy, Was hington, D.C., Oct. 12, 1971 [hereinafter Backman Interview ].

34. U.S. News and World Report, June 22, 1970, at 48.

34a. Id.

34b. Unofficial Swedish and American groups in Sweden state tha t the deserter 

and evader are also entitled to a living allowance, free language school and job training 

from the Swedish government. Svenska Kommitten for Vietnam, Stockholm, Information

to Guide an American Deserter in Sweden; American Deserters Committee, Stockholm, 

“A Fact Sheet for Deserters and Draft Rcsisters in Sweden.” Th e latter documents are 

on file at the Harvard International Law Journal.

35. Aliens Act of April 30, 1954 (No. 193). All provisions of the Act here cited 

were kindly translated by Mr. Jon Thormodsson, Harvard Law School, from Forfattningssamling for Beskickningar och Konsulat (FSBK) at 461 et seq. (1955) .

36. Aliens Decree of May 23, 1969 (No. 136). All provisions of the Decree here 

cited are as translated in the unofficial translation of Aug. 24, 1970, provided to the 

Harvard International Law Journal by the Royal Swedish Embassy, Wash ington, D.C.

37. Id. § 32.

38. Id. § 42.

39- W- § 33-

40. Id. § 36.

41. Backman interview, supra note 33.
89

permit, once issued, is valid for three years and is renewable.42 Apparently, most American deserters and evaders would have little difficulty 

obtaining a residency permit.

The difficulty for the deserter or evader arises in connection with the 

issuance of a labor permit. The Alien Decree stipulates that:

An alien is not entitled, without possessing a labor permit 

(arbetstillstand) to hold employment in Sweden.43

Further:

An alien who has entered Sweden without being in possession of a 

labor permit must not be granted such permit as long as he is staying in Sweden.44

The delay and advanced planning required by the above sections of the 

Decree, coupled with the possibility that the alien may lack any 

employable skills, could impose a severe hardship for the deserter or 

evader seeking sanctuary. In response to this problem the Swedish 

government, through the National Immigration Board, has taken action 

under Section 52 of the Aliens Decree45 which allows the Board to 

grant a permit, notwithstanding other sections of the Aliens Act, to an 

alien already in Sweden

[i]f there are particularly strong reasons in view of the length of 

time the alien has been staying in Sweden, his personal circumstances and other facts of the case.

It is the apparent policy of the Swedish government to exercise this 

discretion to allow issuance of labor permits within Sweden to American 

deserters and evaders who can prove they were in danger of being sent 

to a war zone.46 Those who can sustain this vague burden of proof are 

granted what the Swedish government terms “humanitarian asylum,”

42. Aliens Decree of May 23, 1969 (No . 136) § 36. Th e American Deserters Com ­

mittee in Stockholm asserts, however, tha t initially the labor and residence permits must 

be renewed “anywhere from every three to every twelve months,” while after two years 

the deserter or evader can be granted resident alien status (Bos attiningstillstand ).

American Deserters Committee, supra note 34b.

43. Id. § 42.

44. Id. § 46.

45. Id. § 52.

46. Backman interview, supra note 33. According to Swedish governmen t officials, 

only American deserters can benefit from application of this discretion, but unofficial 

groups workin g within Sweden state tha t evaders also sometimes benefit. These un ­

official sources cite a Swedish governm ent com munique of February, 1969. Letter of 

Robert Argento, office of Advokat Han s Gora n Franck, Stockholm, to the Harvard 

International Law Journal, Nov. 9, 1971; American Deserters Committee, Stockholm, 

"A Fact Sheet for Deserters and Resisters in Sweden” and “The Swedish Governm ent 

and Political Asylum”, on file at the Harvard Internationa l Law Journal. Th e standard 

of being sent to a war zone would seem to be susceptible to varying degrees of proof. In 

any case, the danger of being sent to a war zone would be more remote for the evader 

tha n the deserter.
90

the sole legal consequence of which is to exempt the fugitive from the 

requirement of obtaining a labor permit prior to entry. The term 

humanitarian asylum has no significance under Swedish law and is 

simply descriptive of the situation in which discretion under the Decree 

will be exercised.47 The grant of humanitarian asylum is not to be construed as a grant of political asylum, which is authorized by a separate 

section of the Aliens Act.48

C. Return By Extradition

The United States has established a comprehensive series of bilateral 

and multilateral treaties to effectuate the return of fugitives from its 

laws.40 Treaties are in effect with both Canada50 and Sweden:51 the 

former is one of the oldest, amended seven times to broaden its scope 

over the years, while the latter, concluded in 1963, is one of the most 

recent.

The United States is not necessarily limited to extradition by treaty, 

though that is usually the method employed. While federal extradition 

law52 prohibits the United States government from extraditing a fugitive from this country to a foreign country except for a crime enumerated

47. Telephone interview with Mr. Bu Hincback of the Royal Swedish Embassy, 

Washington, D.C., Nov. io , 1971 [here inafter Hineback inte rvie w].

48. Political asylum is provided for in § 2(2 ) of the Alien Act:

A political refugee is taken in this Act to be an alien who in his native country 

runs the risk of being subjected to political persecution. Political persecution means 

that, a person, on account of his origin, his membership of a particular social 

group [sic ], his religious or political opinion or otherwise on account of political 

conditions, is subjected to persecution that is directed against his life or freedom or 

is otherwise of a serious nature. . . .

For a suggestion that the standard is a strict one, see S. Sinha, Asylum and International Law 98 (19 71) ; and tha t it might be meant to apply to refugees from totalitarian states, see Royal Ministry of Foreign Affairs, Docum ents on Swedish Foreign 

Policy 148-150 (19 62).

49. The United States is at present party to one multi-national extraditio n treaty and 

has bilateral extradition treaties with 81 countries. A complete list is contained in 18 

U.S.C. § 3181 (1969) . See generally I. Shearer, Extradition in International Law (1971).

50. Extradition Convention Between the United States of America and Her Britannic 

Majesty supplementary to the treaty of August 1842 between the same High Contracting Parties, July 12, 1889, 26 Stat. 1508, T.S. No. 139 [here inafter U.S.-U.K. Extradition Treaty] . The definitive 1889 treaty is actually a supplement to a one-paragraph 

agreement to extradite included in a general boundary settlement between the United 

States and the United Kingdom for Canada, A Treaty to Settle and Define the 

Boundaries between the Territories of the United States and the Possessions of Her 

Britannic Majesty in Nor th America, Aug. 22, 1842, art. X, 8 Stat. 572, T. S. No. 119.

51. Convention on Extraditio n Between the United States of America and Sweden, 

Dec. 3, 1963, [196 3] 2 U.S.T. 1845, T.I.A.S. No. 5496 [here inafter U.S.-Sweden Extr adition Treaty].

52. 18 U.S.C. § 3184 (19 68).
91

in an extradition treaty,53 it does not prohibit the United States from 

recovering a fugitive from a foreign state without benefit of treaty. 

The foreign state has full discretion whether to return the fugitive.54

While the absence of recent American cases on the subject suggests that 

the practice is rare, United States courts have on occasion gained jurisdiction over a fugitive without recourse to an extradition treaty. In such 

cases a fugitive returned to the United States will not be granted habeus 

corpus and the courts will not deny jurisdiction to try him.55 It is thus 

necessary to examine Canadian and Swedish extradition practice both 

under the specific treaties and municipal laws and in situations where 

the treaty does not cover the crime for which extradition is requested.

i. Extradition from Canada

Extradition from Canada is regulated by the Canadian Extradition 

Act,50 which consists of two parts. Part One concerns extradition under 

an applicable treaty, while Part Two deals with extradition absent an 

applicable treaty.

Part One specifies that extradition by treaty is limited to the precise 

terms of the treaty.57 Canadian courts have held that the Part serves 

neither to increase58 nor decrease59 the types of crimes for which a 

treaty may allow extradition. Part One by its own terms yields to any 

inconsistent treaty provision.00

Article I of the Canadian-American extradition treaty61 lists the 

crimes to which the treaty is applicable. Neither draft evasion nor 

desertion have been included in either the treaty’s original list of extraditable offenses or in any supplement.02 Extradition for evasion and 

desertion are thus not possible under the treaty as presently constituted. 

In addition, under the treaty the United States could not demand extradition of a fugitive for a listed crime and then try him for desertion or 

draft evasion, at least without permitting the evader or deserter reason53. This provision has been vigorously enforced. See Factor v. Laubenheimer, 290 

U.S. 276 (19 33); In re Wise, 168 F. Supp. 366 (S.D. Tex. 1957); Argcnto v. Hor n, 

241 F.2d 258 (6th Cir. 1957), cert, den., 355 U.S. 818 (19 57); Ramos v. Diaz, 179 

F. Supp. 459 (D. Fla. 1959).

54. Greene v. U.S., 154 F. 401 (5th Cir. 1907), cert, den ., 20-j U.S. 596 (1907).

55. Ex parte Foss, 102 Cal. 347, 36 P. 669 (1894) .

56. Extradition Act, Can. Rev. Stat. c. E-21 (19 70).

57. Id. § 3.

58. U.S.A. v. Novick, 33 Can. Crim. 401 (Que. Sup. Ct. i960 ).

59. U.S.A. v. Stegeman et al., 50 Can. Crim . 23 (B.C. Ct. App. 1966).

60. Extradition Act, Can. Rev. Stat. c. E-21 § 3 (19 70).

61. U.S.-U.K. Extradition Treaty, 26 Stat. 1508, T.S. No. 139.

62. Offenses listed in the 1889 treaty were manslaughter, counterfeiting, embezzlement, fraud, perju ry, rape, burglary, piracy, mutiny, slavctrading, and complicity in 

any of the above. Offenses added later were: fr^ud in obtaining money, destroying 

railroads, and procuring abortion, Dec. 13, 1900, 32 Stat. 1864, T.S. No. 391 (1901);
92

able time to leave the United States again®3

 The list of extraditable 

crimes has been amended before and could be amended again to include 

these two offenses.

Yet it is by no means clear that extradition would lie in such a case 

for those who had committed such offenses before the amendment of 

the treaty. Section 12 of the Extradition Act64 provides that:

Every fugitive cri mi nal. . . is liable to be apprehended, committed, 

and surrendered . . . in the manner provided in this Part whether 

the crime or conviction . . . was committed or took place before or 

after the date of the arrangement.

By this provision any amendments would be applied retrospectively. 

But by section 3 of the Extradition Act, this provision does not apply 

if it contravenes any section of the treaty, and the treaty arguably 

evinces an intention not to extradite for any offenses not covered by 

treaty when committed. Article VI II65 provides that:

The present convention shall not apply to any of the crimes herein 

specified which shall have been committed, or to any conviction 

which shall have been pronounced prior to the date which the 

convention shall come into force.

This provision would seem to apply to supplementary agreements as to 

extraditable offenses, since those agreements provide that they are integral to the treaty.66 Hence each amendment to the list of extraditable 

crimes m ight, like the original list, be read to apply only prospectively. 

Since no case has raised the point to date, it is unclear whether article 

VIII would in fact bar retrospective application of an extradition treaty 

amended to include draft evasion or desertion.

Even if section 12 of the Immigration Act applies and the treaty 

were amended to include desertion and draft evasion as extraditable 

offenses, Canada may still refuse extradition of draft evaders under the 

treaty provision requiring “double criminality.”67 Double criminality 

requires that the offense, to be extraditable, must be a crime in both the

bribery and bankruptcy law offenses, Apr. 12, 1905, 34 Stat. 2903, T.S. No. 458 (19 07) ; 

grievous assault of a law officer, May 18, 1908, 35 Stat. 2035, T.S. No. 502 (1908) ; 

desertion of dependent children, May 15, 1922, 42 Stat. 2224, T.S. No. 666 (19 22) ; 

narcotics offenses, Jan. 8, 1925, 44 Stat. 2100, T.S. No. 719 (1925); and deceitfully 

obtainin g money under false pretenses, Oct. 26, 1951, [1952] 2 U.S.T. 2826, T.I.A.S. 

No. 2454, 206 U.N.T.S. 319.

63. U.S.-U.K. Extradition Treaty, art. Ill, 26 Stat. 1508, T.S. No. 139.

64. Extradition Act, Can. Rev. Stat. c. E-21 (1970) .

65. U.S.-U.K. Extraditio n Treaty art. VIII, 26 Stat. 1508, T.S. No. 139.

66. See, e.g., art. II, 34 Stat. 2903, T.S. No. 458.

67. Art. I of the 1889 treaty implicitly requires tha t the offense, to be extraditable, 

must be a crime in both the United States and Canada, and has been so interpreted in 

Canadian courts. Ex parte Thomas, [191 7] 38 D.L.R. 716 (1917); Was hington v. 

Fletcher [192 6] 3 D.L.R. 426 (19 26): In re Clark [1929] 3 D.L.R. 737 (1929). All 

elements of the crime need not be exactly the same. Id.
93

demanding and the asylum states. Since Canada has no military conscription, there is no Canadian offense equivalent to draft evasion, and 

hence no double criminality as required. Canada does maintain volunteer armed forces, and thus desertion under American law would presumably have its Canadian equivalent.

Finally, the treaty bars extradition for political offenses, leaving it to 

the asylum state to determine exactly what qualifies as a political offense.68 But neither desertion nor evasion has ever been so defined. At 

common law, a definition of political offense has developed which 

requires that the crime be committed in the course of an attempt to 

overthrow constituted governmental authority and for the purpose of 

seizing political control in the state.69 This definition has been accepted 

by a Canadian court70 and no contrary definitions have apparently 

arisen. Neither draft evasion nor desertion due to opposition to the 

Vietnam war would seem to qualify as a political offense under this 

standard.

Part Two of the Extradition Act, as noted above,71 provides for 

extradition without recourse to treaty. Yet even under this Part, the 

American deserter or evader currently appears safe from extradition. 

Upon executive proclamation invoking Part T wo:72

Where no extradition arrangement exists between Her Majesty 

and a foreign state, or where an extradition arrangement, extending 

to Canada, exists between He r Majesty and a foreign state, but does 

not include the crimes mentioned in Schedule III, it is nevertheless 

lawful for the Minister of Justice to issue his w arrant for the surrender to such foreign state of any fugitive offender from that 

foreign state charged with or convicted of any of the crimes mentioned in Schedule III.73

Schedule III lists 22 crimes74 but does not include either desertion or

68. U.S.-U.K. Extradition Treaty, art. II, 26 Stat. 1508, T.S. No. 139, provides that: 

A fugitive criminal shall not be surrendered if the offense . . . be one of a

political character, or if he proves tha t the requisition for his surrender has in fact 

been made with a view to try and punish him for an offense of a political 

character.

If any question shall arise as to whether a case comes within the provision of this 

article, the decision of the authorities of the governm ent in whose jurisdiction the 

fugitive shall be at the time shall be final.

69. In re Casdoni, 2 Q.B.D. 149 (1891).

70. In re Fedorenko, 15 W.L.R. 369 (19 10).

71. See p. 97 supra.

72. Extr adition Act, Can. Rev. Stat. c. E-21 § 35 (1) (1970).

73. Id. § 37 (1).

74. Id. Schedule III includes the following offenses: murder, manslaughter, counterfeiting, forgery, larceny, embezzlem ent, frau d in obtainin g money or goods, rape, abduction, child stealing, kidn apping, burg lary, arson, robbery, fraud by a corporate official,
94

draft evasion. But, unlike Part One, which applies extradition treaties 

prospectively and retrospectively unless the treaty by its terms provides 

otherwise,75 section 36 of Part Two applies “to any crime, mentioned in 

Schedule III, that is committed after the coming into force of this 

P art . . . . ”

Since there has been no proclamation to date invoking Part T wo for 

the benefit of the United States, much less a proclamation revising 

Schedule III, those deserters and evaders already in Canada would 

appear safe from extradition under this Part.

In sum, extradition either with or without a treaty does not appear 

currently available to the United States governm ent to return draft 

evaders and deserters from Canada.

2. Extradition from Sweden

Extradition from Sweden is regulated by the Swedish Extradition Act 

of 1957.76 It is the policy of Sweden not to extradite except in accordance with a treaty,77 but it is not clear whether extradition without 

treaty is specifically prohibited. However, during the twelve year 

period from 1951 to 1963, when no extradition treaty existed between 

the United States and Sweden, extradition did not occur.78

The Swedish-American treaty79 like the Canadian-American treaty 

provides for extradition only for listed crimes. Article II of the agreement, however, includes in this list neither draft evasion nor desertion.80

Since article I bars extradition for one offense and trial for another, 

under the present treaty the United States cannot extradite for a listed 

crime and then try the fugitive for draft evasion or desertion. There is 

a further bar regarding desertion. Unlike the Canadian-American 

treaty, the Swedish-American treaty contains a provision whereby 

“[ejxtra dition shall not be granted . . . when the offense is purely 

military.”81 While there are no American or Swedish cases interpreting

railway crimes, piracy, criminal scuttling of a vessel, assault on board a vessel, revolt 

on board a vessel, abortion and vicarious liability for any of the above.

75. See p. 98 supra.

76. Extradition Act of Dec. 7, 1957 (No . 147).

77. Hineback interview, supra note 47.

78. Message from the President Tra nsm itting Convention on Extradition with Sweden, 

Sen. Exec. E, 87th Cong., 2d Sess. 2 (19 63).

79. U.S.-Sweden Extradition Treaty, [1963] 2 U.S.T. 1845, T.I.A.S. No. 5496.

80. Id. Included offenses are: murder, manslaughter, malicious wou nding, kidnapping, 

rape, abortion, procuration, bigamy, robbery, burglary, arson, dam agin g railways and 

other modes of travel, piracy, blackmail, forgery, counterfeiting, embezzlement by a 

public official, use of mails to defraud, frau d by a fiduciary, bribery, perjury, slavetrad ing, bankruptcy law offenses, smug gling, narcotics violations, illicit manufac ture of 

poisonous chemicals, atte mpt to comm it the above, and complicity in any of the above.

81. U.S.-Swcden Extradition Treaty, art. V, [196 3] 2 U.S.T. 1845, TJ.A.S. No. 5496.
95

“purely military” offenses und er this treaty, the provision appears frequen tly in extradition treaties and is generally interpreted as applying 

to violations of the internal rules of a military force, as opposed to common crimes committe d against civilians in the course of military operations.82 Desertion, hav ing no significance outsid e m ilitary organizations, 

would seem to qualify und er the treaty as such a purely military, and 

thus non-extraditable, offense.

Even if the list of extraditable crimes in article II were amended by 

mutual consent of the contracting parties, it is not clear tha t Sweden 

would be obligated to extradite all evaders. Article V, section 5 of the 

treaty bars extradition

[i]f the offense is regarded by the requested state as a political 

offense or as an offense connected with a political offense.

While it was noted above that common law jurisdictions, including 

Canada, have developed a definition of political offense which would 

probably not include desertion or evasion, it does not follow that 

Sweden would adopt this standard . Generally civil law systems, notably 

in Europe, have developed an alternate definition of political offense 

which is more generous to the alien. By this stan dard a political offense 

is one committe d with predom inan tly political motives, objectives and 

circum stances.83 The re appear to be no Swedish decisions on the point 

and it cann ot be asserted with any certainty that Sweden wou ld choose 

so to define desertion an d/or evasion. It should simply be noted that the 

broad definition would be open to Sweden and that, since the treaty 

leaves it to the asylum state to determine if the offense is political in 

nature,84 the Uni ted States would have to accept such a decision, not ­

withstand ing the use of the contrary definition by the United States.

In sum, only a revision of the Swedish-American extradition treaty 

would permit its use in retu rning deserters or dra ft evaders. Moreover, 

Sweden mig ht consider evasion in the particu lar circumstances a 

political offense and deny extradition.

D. Alte rnatives to Return by Extradition

There remain at least two other methods by which the United States 

mig ht attempt to obtain the retu rn of its nationals to an area over which

82 See generally S. Bcdi, Extradition in International Law and Practice 196, 197 

(1966) .

83. See, e.g., Re Camporini, [192 4] 50 S.B.G.I. 229 (Fed . Trib. 1924); Re Kavic, 

[1952] 78 J. Trib. I. 39 (Fed. Trib. 1952) (Sw itzerland ); Re Fabijan, Sup. Ct., Judg ment 

of March 9, 1933, 67 RGSt. 150 (Ge rmany ). See generally, S. Sinha, supra note 48, at 

170-202.

84. U.S.-Sweden Extradition Treaty, art. V (5 ), [1963] 2 U.S.T. 1845, T.I.A.S. No. 

5496.
96

it exercises jurisdiction. First, the United States can invoke the N AT O 

Status of Forces agreement to effect the return of certain military 

deserters from Canada.85 Second, the United States might gain jurisdiction over deserters and evaders throug h “disguised extradition” in 

the form of deportation and its variants.

i. The N A TO Status of Forces Agreement

Sweden, as a neutral state, is not a signatory to any status of forces agreements with the United States; but under the NA TO Status of Forces 

agreement, the United States can obtain the return from Canada of 

deserters from American posts in Canada. Article VII of the NA TO 

agreement provides in part that:

i (a) : [T]he military forces of the sending states shall have the 

right to exercise within the receiving state all criminal and disciplinary jurisdiction conferred on them by the law of the sending 

state over all persons subject to the military law of the state.

# * *

5 (a ): The authorities of the receiving states shall assist each 

other in the arrest of members of a force or civilian component and 

their dependents in the territory of the receiving state and in handing them over to the authority which is to exercise jurisdiction in 

accordance with the above provisions.80

A strict reading of section 5(a) would imply an obligation on the 

part of the receiving state to aid in the arrest and return of a military 

deserter. Such is not the case. During negotiations for the treaty:

It was agreed by the Work ing Group at the suggestion of the 

Danish representative that the receiving state, upon notification of 

desertion by the sending state, had the right to search for and arrest 

any deserter with a view toward handing him over to the sending 

state. It was not the intention to lay any obligation on the receiving 

state to take such action but merely to provide that it was entitled 

to carry it out. It therefore appears from the preparatory works that 

the receiving state is free to act as it wishes when he [sic] receives 

appropriate information from the sending state. In fact, states cooperate very actively for [sic] the search for deserters.87

Further, the provisions of the NA TO agreement have been interpreted as not to be applicable to American deserters from posts outside

85. The Agreements also apply to civilians stationed abroad as part of the military 

force. See note 86 injra and accompanying text.

86. Agreement Between Parties to the North Atlantic Treaty Regarding the Status of 

their Forces, August 23, 1953, [195 3] 2 U.S.T. 1792, T.I.A .S. No. 2846, 199 U.N.T.S. 67.

87. S. Lazareff, Status of Military Forces Under Current Internationa l Law 118 

(I97X).
97

of Canada who take refuge in Canada. The treaty provisions refer only 

to return of offenders from the receiving to the sending state. No mention is made of third states which might also be party to the agreement. 

Article I of the agreement defines a military force to include “the personnel belonging to the land, sea and air armed forces of one Contracting 

Party when in the territory of another Contracting Party in the North 

Atlantic Treaty area in connection with their official duties . . [emphasis added], and describes a receiving state as the territory of which 

the force or civilian component is either stationed or in transit.88 From 

this, the authorization to search for and return members of visiting 

military forces can be read to extend only to those members of the force 

actually stationed in the state. Thus, Canada has returned American 

personnel from bases in Canada (whether to the United States or to 

American bases in Canada is uncertain) but has not returned servicemen in Canada who deserted from bases outside Canada.89 It appears 

that the vast majority of American military deserters in Canada are thus 

not subject to return to American authorities under the Status of Forces 

agreement.90

2. Deportation and its Variations

In theory, deportation is the unilateral act of a state for the protection 

of its own citizens and interests. In fact, deportation is sometimes used 

to accommodate other states which cannot or do not wish to resort to 

formal extradition to bring about the return of a fugitive.91 This practice holds the gravest hazards for the deserter or evader abroad. The 

United States has occasionally resorted to deportation in lieu of formal 

extradition, in the absence of an extradition treaty92 and in open disregard for an existing treaty.93 This informal extradition has been practiced in cooperation with Canada at times,94 but not in any recent cases 

involving deserters or evaders.

Only when the formal deportation procedures of a state are used does 

the deserter or evader have a useful opportunity to challenge the depor88. “In tran sit" presumably does not refer to an indiv idual traveling in Canada in 

orde r to desert.

89. Rankin interview, supra note 20.

90. This analysis would apply to other NATO member states as well.

91. See generally O’Higgins, Disguised Extradition: The Soblen Case, 27 Mod. L. 

Rev. 521 (19 64).

92. E.g., Egyptian officials placed a fugitive on board a ship bound for the United 

States. 2 J. Moore, International Law Digest 633 (19 06).

93. E.g., United States officials entered Mexico and took custody from Mexican authorities withou t any extraditio n proceedings. United States v. Sobell, 142 F. Supp. 515 

(S.D.N.Y. 1956), 244 F. 2d 520 (2d Cir. 1956), cert, den ., 355 U.S. 873 (1956).

94. Evans, Acquisition of Custody Over International Fugitive Offenders, Alternatives

to Extradition; A Survey of U S. Practice, 40 Brit. Y.B. Int’l L. 77 (1964).
98

tation. Th e procedures followed by the asylum state thus become crucial. 

Deportation of evaders or deserters from Can ada or Sweden to the 

United States is un likely for several reasons. First, depo rtation requires 

the cooperation of the asylum state. Second, under both the Canadia n 

and Swedish statutes, deportation is not generally comm itted to executive 

discretion.95 A deportation orde r in these countries will issue only for 

cause. Finally, both states have established procedural safeguards to 

protec t the alien from abuse of the deportation process.

Un der the Canadian Immig ration Act 90 there are three general 

categories of deportable aliens. First, those who enter Can ada illegally, 

or use frau d in their application, are subject to depo rtation. 97 Th e 

second category consists of those who, once in Canada, are convicted of 

offenses und er the Canadia n Criminal Code 98 or of certain crimes 

against Can ada such as subversion, espionage, or disloyalty.99 Section 

18(d) of the Act renders deportable aliens who are convicted of violations of the Narcotics Control Act. 100 Th ird , section i8 (e )( v) makes 

an alien subject to deportation who

[h]as, since his admission to Canada become a person who, if he

were applying fo r admission to Canada w ould be refused admission

by reason of his being a m ember of a prohibited class. . . . [emphasis added]

This section makes subject to deportation an alien who did not fall into 

any prohibited class at entry and has not committed any violations of 

Canadian law. It gives the Canadian governmen t the pow er to deport 

groups of aliens who have not breached any laws, but who are classed 

as undesirables, since section 57(g) of the Act permits the executive to 

make rules as to prohibited classes on the basis of:

(i) nationality, citizen ship, ethnic group, occupation, class or geographical area of origin,

(ii) peculiar customs, habits, modes of life or methods of hold ing 

property,

(iii) unsuitability, having regard to the climate, economic, social, 

industrial, labor, health or other conditions . . . .

When a deportation order has issued, the Imm igratio n Appeals Board 

Act101 provides tha t:

95. Section 34 of the Swedish Aliens Act of April 30, 1954 (No . 193) apparently 

empowers the King-in-Council (Executive) to extradite without reference to other 

sections of the Act in extraordinary circumstances involving a threat to the national 

security.

96. Immigration Act, Can. Rev. Stat. c. 1-2 (1970).

97- W- § 18(e) (vi-x).

98. Id. § 18(e) (ii ).

99. Id. § i8 (s) (a-c).

100. Narcotics Control Act, Can. Rev. Stat. c. N-i (1970) .

101. Immigration Appeals Board Act, Can. Rev. Stat. c. I-3, § 11 (19 70).
99

[a] person against whom an order of deportation has been made 

under the Immigration Act may appeal to the Board on any ground 

of appeal that involves a question of law or fact or mixed law and 

fact.

The Board has exclusive jurisdiction102 but the decisions of the Board 

can be reviewed as to matters of law by the Canadian Supreme Court, 

if that Court grants leave to appeal.103

The Immigration Appeals Board has wide discretion to set aside 

deportation orders. The Board may, having regard to all the circumstances of the case, including the “existence of compassionate or hum anitarian considerations that in the opinion of the Board warrant the 

granting of special relief,”104 stay or quash a deportation order and 

allow the alien to remain in Canada subject to such conditions as it sees 

fit.105

Even if the American deserter or evader were ordered deported, he 

would not necessarily be returned to the United States. The Immigration Appeals Board Act gives the Immigration Minister discretion to 

deport the alien to his home country or to another country,106 while 

section 33(2) of the Act provides that

[ujnless otherwise directed by the Minister or Immigration Officer 

in charge, a person against whom a deportation order has been 

made may be requested or allowed to leave Canada voluntarily.

This provision would give the deserter or evader the opportunity to 

leave Canada for some other sanctuary, assuming another country 

would allow him to enter.

The deportation policy of Sweden is comparable to that of Canada. 

The Aliens Act107 provides for deportation for those who (a) cannot 

support themselves, (b) become dangerous alcoholics, (c) fail to meet 

their social obligations or (d) are convicted of crimes outside of Sweden 

and might be expected to repeat those crimes in Sweden.108 Those 

who give false information in applying for entry are likewise deportable.109 Further, a court which has convicted an alien of an offense punishable by imprisonment can also order his deportation.110

In addition to the courts, local county administrations as well as the 

National Immigration Office and the King-in-Council (the national

102. Id. § 22.

103. id. § 23.

104. Id. § 15( 1) (b ) (ii).

105. Id. § 15 (2).

106. Imm igration Act, Can. Rev. Stat. c. 1-2, § 33 (1 ).

107. Aliens Act of April 30, 1954 (No . 193). See note 35 supra.

108. Id. § 29 (1 -4 ).

109. Id. § 50. 

n o . Id. § 26.
100

executive) can instigate deportation proceedings.111 Deportation orders 

by lower bodies must be approved by the National Immigration Office, 

which functions with the advice of an independent Aliens Board,112 and 

which, along with the King-in-Council, has discretion to void deportation orders.113 Section 44 of the Act provides for appeal to the National 

Immigration Office, and section 46 allows appeals to the King-inCouncil. At all stages of the proceedings the alien is entitled to a hearing, notice of the results, a summary of reasons, and information as to 

how to prosecute an appeal.114 The Aliens Decree115 provides for counsel for the alien at state expense in some cases.11*

5

As in Canada, the alien in Sweden may leave voluntarily117 and only 

where it appears that the alien will not voluntarily obey the deportation 

order will coercive deportation occur.118 Sweden has forcibly returned 

to American jurisdiction deserters convicted of a criminal offense 

while in Sweden.119

F. Conclusion

This Comment has thus far examined the major legal obstacles which 

the American deserter or draft evader faces in attempting to take refuge 

in Canada or Sweden, and the obstacles the United States would face 

if it attempted to gain jurisdiction over him. Neither the Swedish nor 

the Canadian extradition treaties with the United States requires extradition of deserters or draft evaders. Thus, with the limited exception of 

certain deserters in Canada who may be reached through the NA TO 

Status of Forces Agreement, the status of the deserter or draft evader 

who wishes to take refuge in Canada or Sweden turns on the discretion 

of the asylum state. This discretion has operated largely in favor of both 

deserters and evaders in Canada, whose immigration policy operates 

without discrimination against the deserter and evader, and in favor of 

certain deserters and evaders in Sweden, where immigration barriers 

more difficult than those of Canada have been specially eased. Consistent 

with their immigration policies, Canada and Sweden do not deport 

deserters or draft evaders to the United States or elsewhere merely because they are deserters or evaders.

x i i . Id. §§ 30, 31 (2).

112. Id. § 3.

113. Id. § 30.

114. Id. §§ 31, 33.

115. Aliens Decree of May 23, 1969 (No. 136). See note 35 supra.

116. Id. § 86.

117. Id. § 68.

118. Id. § 73.

119. Joseph Parra, a deserter from an American base in Germ any, was deported to 

the United States after conviction and imprisonment in Sweden for narcotics violations. 

See Lindin, Yale Deserter, Yale Alumni Magazine, February, 1971 at 12.
101

The current benevolence of these two countries, however, cannot alter 

the uncertainty inherent in dependence on another nation’s discretion. 

Admitting and harboring another nation’s military deserters and draft 

evaders involves both the domestic and foreign policies of the asylum 

state. The Swedish and Canadian immigration policies toward American deserters and evaders conflict with the United States’ interests in 

punishing violators of its laws and in raising and maintaining armed 

forces. The asylum states might decide at some future date that this 

affront to American interests is no longer in their best foreign policy 

interests. Independent of this foreign policy consideration, deserters and 

draft evaders might be unwelcome in the future, should harboring them 

become no longer consistent with the asylum state’s domestic interests. 

For either domestic or foreign policy reasons, Canada or Sweden, or 

both, might deem it in their respective interests to tighten their immigration and deportation policies. Procedural safeguards in both Canada 

and Sweden afford protection against deportation for deserters and 

evaders residing legally in those countries, but illegal residents could be 

more easily expelled, and further immigration could be curtailed.

It appears highly unlikely that Canada, Sweden, or any other nation 

would bind itself to an international agreement rendering more secure 

the status of deserters and evaders seeking refuge abroad. Nations are 

unlikely to limit the flexibility of their foreign and domestic policies by 

restricting themselves to international standards for the benefit of deserters and draft evaders. [D.W.J.]

PUNISHMENT UPON RETURN

Deserters and draft evaders who return to the United States face a 

variety of statutory and administrative sanctions, the application of 

which is often contingent upon official discretion or upon the circumstances of each case. Sanctions applicable to deserters are imposed by 

military administrators or courts-martial, whereas sanctions against draft 

evaders are imposed by civilian courts and administrative agencies applying immigration and selective service laws.

A. Sanctions Against Deserters

The Uniform Code of Military Justice (U.C.M.J.) defines a deserter as 

“any member of the armed forces who . . . [wjitho ut authority goes or 

remains absent from his unit, organization, or place of duty with intent 

to remain away therefrom permanently.”120 Although the U.C.M.J. 

gives the courts-martial broad discretion in selecting a penalty for this 

120. io U.S.C. § 88 5( a)(1 ) (19 70).

31 -65 8 0 - 7 4 - 8
102

offense,

121 the guidelines established by the President in the Manual foi 

Courts-Martial, which are binding on the courts-martial,122 include 

a maximum penalty of five years confinement at hard labor plus a dishonorable discharge.123 The penalty for an absence without leave 

(A.W.O.L.) of more than thirty days, which differs from desertion since 

there is no intent to remain away permanently, is one year’s confinement 

at hard labor plus a dishonorable discharge.124

No official data is available to the public concerning the average 

sentences served by those found guilty of desertion or long-term 

A.W.O .L.125 However, there is evidence that treatm ent of deserters by 

courts-martial is varied and inconsistent,126 and that very few actual 

deserters are ever convicted of the offense of desertion.127 The Subcommittee on the Treatment of Deserters of the Senate Armed Services 

Committee found that during fiscal 1968 less than 0.5% of those men 

dropped from their unit rolls as deserters were eventually convicted of 

the offense of desertion.128

There are many reasons for this extremely low rate of desertion convictions. First, it is difficult for the prosecutor to prove the element of 

intent to remain away permanently which is essential to a desertion 

conviction. Although the Manual for Courts-Martial provides that prolonged absence will give rise to a presumption of intent to remain away 

permanently,129 the landm ark case of United States v. Cothern130 held 

that the duration alone of the absence is not enough from which to 

infer intent to remain away permanently.131 As a result, a prosecutor 

must now bring in witnesses to prove the necessary intent, which requires additional time and expense to the military. Most prosecutors,

X2X. 10 U.S.C. § 885(c) (19 70).

122. “Th e limitations imposed by the President are in effect until such time as he 

suspends or modifies them , or upon a declaration of war.” Manual for Courts-Martial, 

ch. 25, § 125 (rev. ed. 1969).

123. Id. Table of Maximum Punishments, 25-11, § 127c.

124. Id.

125. Letter from K. A. Konopisos, Captain, J.A.G.C., U.S. Navy, Mar. 25, 1971; 

Letter from Robert E. Miller, Colonel, J.A.G.C., Chief, Military Justice Division, Departme nt of the Army, April 16, 1971. These letters are on file at the Harvard International 

Law Journal.

126. See, e.g., N. Y. Times, May 1, 1969, at 6, col. 1.

127. S. Rep. No. 93, 91st Cong., 1st Sess. 26 (19 69).

128. Id. This represented a total of approximately 37 army and 20 navy personnel 

convicted of desertion in fiscal 1968, based on total numbers of persons dropped from 

the rolls during this period. See Hearings Before the Sttbcomm. on Th e Trea tment of

Deserters from the Military of the Sen. Com m, on the Arme d Services, 90th Cong., 

2nd Sess. 24 (1968) .

129. Manual for Courts-Martial at 28-11 (§ 164a) (rev. ed. 1969).

130. 23 C.M.R. 383 (19 57).

131. Formerly, the necessary intent was presumed from an absence of 9 months to 

one year or more. Anonymous interview with Captain, U.S. Army, Fort Devens, Mass., 

Apr. 12, 1971 [hereina fter cited as Inte rview].
103

therefore, usually seek convictions for A.W .O.L., which is easy to prove 

and requires no witnesses.132 Ano ther comm on practice is to g ran t “ undesirable” discharges administratively to those deserters who have been 

absent for over one year.133 This procedure avoids not only the trouble 

and expense of a long trial, but also the necessity of find ing a deserter 

and retu rning him to the correct military jurisdictio n for court-martial. 

Althou gh the Subcommittee on the Tre atm ent of Deserters deno unced 

both the gra nting of undesirable discharges in absen tia and the trying 

of deserters for a lesser offense,134 it appears that these practices still 

continue.135

B. Sanctions Against Draft Evaders

Some of the draft evaders presently living abroad have violated no 

United States laws. Am ong these exiles are those who, prior to violatin g 

any provision of the Selective Service Act,130 renounced their American 

citizenship abroad in the presence of an appropriate American consular 

official.137 Such expatriates, now formally aliens, face a special problem 

created by United States imm igra tion laws. Un der this legislation, 

these expatriates become excludable aliens who may be deported upon 

return to the Uni ted States, since they will have “departed from or . . . 

remained outsid e the United States to avoid or evade” the draft durin g 

time of national emergency.138 There are defenses available to these 

persons if they try to retu rn to this country and depo rtation proceedings 

are bro ugh t against them .139 Fo r example, they may claim that their

132. The length of unauthorized absences can be easily found in records kept at 

military bases. Id.

133. This practice has been authorized by Departm ent of Defense Directive 1332.14, 

para. VII(j) (19 65). See also S. Rep. No. 93, 91st Cong., 1st Sess. at 25ff. (19 69) ; 

Lynch, The Adm inistrative Discharge: Changes Needed?, 22 Me. L. Rev. 141 (1970) .

134. S. Rep. No. 93, 91st Cong., 1st Sess. at 26, 31, 32 (1969).

135. Interview, note 131 supra.

136. 50 U.S.C. App. §§ 45J-473 (i97 o) .

137. 8 U.S.C. § 1481 (a )(6 )(i) (1970). A similar provision, 8 U.S.C. § I4 8 i( a)( io ) 

(19 70), which provides that American citizenship is autom atically forfeited by leaving 

or remaining away from this country during time of war or national emergency in 

order to avoid military service, has reccndy been held unconstitutional by the Supreme 

Court on the grou nd that the autom atic forfeiture results in a denial of due process. 

Kennedy v. Mendoza-Martinez, 372 U.S. 144 (19 63).

138. 8 U.S.C. § 1182 (a )(22) (1970) . The national emergency declared by President 

Tru ma n, Proc. No. 2914, 3 C.F.R. 99 (1949-1953 Comp.), 64 Stat. A 454, remains in 

effect today. See Nielsen v. Secretary of the Treasury, 424 F.2d 834, 839 (D.C . Cir. 

1970). Succeeding presidents have acknowledged the continuing existence of this 

national emergency. See, e.g., Exec. Ord er No. 10905, 3 C.F.R. 436 (19 59-1963 Comp.) 

(President Eisenhower); Exec. Order No. 11387, 3 C.F.R. 448 (197 1) (President 

John son).

139. For a general discussion of the range of administrative and penal sanctions which 

evaders may face, and the scope of the defenses available to them for avoiding such 

sanctions, see generally Com ment, supra note 2, at 8-2 1. See also Jolly v. Imm igra tion
104

renunciation of citizenship was involun tary,140 or they may challenge 

the allegation that they left o r remained away from the country in order 

to evade the dra ft.141 How ever, most defenses are as yet largely untested. 142

Th e majority of dra ft evaders outside the country have violated some 

provision of the Selective Service Act of 1967,143 which was in effect 

when nearly all of these exiles left the country. Th e maxim um penalty 

which this grou p faces upo n return is five year’s imp risonment or a 

$10,000 fine, or both. 144 The courts have declared this penalty not to be 

cruel, excessive, or unusual, and they have not hesitated to apply it.145

Local draft boards do not generally turn the name of a violator over 

to the appropriate U.S. Atto rney until the draftee has refused induction 

orders three or four times. 146 Th e U.S. Atto rney must then decide

and Naturalization Service, 441 F.2d 1245 (5th Cir. 1971), cert, den., — U.S. —, 40 

U.S.L.W. 3220 (Nov. 8, 1971); N. Y. Times, Apr. 14, 1971, at 6, col. 1; Nov. 15, 1971, 

at 1, col. 6.

140. A recent federal court decision suggests tha t this defense is extrem ely limited. 

In Jolly v. Immigration & Naturalization Service, 441 F.2d 1245 (5th Cir. 1971), cert,

den., — U.S. — (19 71), 40 U.S.L.W. 3220 (Nov . 9, 1971), petitioner Jolly formally 

renounced his citizenship before the United States Consul in Toronto in May of 1967. 

Prior to March of 1968, Jolly returned to the United States. Deportation proceedings 

were brought against him pursuant to 8 U.S.C.A. § 12 51 (a)(1 ) as an excludable alien, 

alleging tha t he had entered this country with out a valid visa, 8 U.S.C.A. § 11 82 (a)(2 0), 

and had left and remained away during a period of national emergency to avoid the 

draft und er 8 U.S.C.A. § 11 82 (a)(22 ). He was ordered to depart by a Special Inqu iry 

Officer, whose decision was affirmed by the Board of Immigration Appeals. Jolly appealed for review und er 8 U.S.C.A. § 110 5(a), argu ing inter alia that (1) his renunciation was not “vo luntary,” as required by cases inte rpre ting § 14 81 (a)(6 ), because it 

was made und er duress due to his opposition to the war; and (2) that even if he was 

an alien, he had entered the United States lawfully as an alien married to a citizen and 

“otherwise admissible at the time of entry " und er 8 U.S.C.A. § 125 1(f).

The Fifth Circuit Court of Appeals found that Jolly’s renunciation was voluntary, and 

tha t he was not “otherwise admissible,” since he had remained outside the United States 

to avoid service in the armed forces during a period declared by the President to be a 

national emergency. 8 U.S.C.A. § 1182(a) (22). Th at is, the court held that Jolly was in 

fact an alien by virtue of his own renunciation, and tha t he was excludable, notwithstanding § 125 1(f), since he had remained in Canada to avoid the draft. It is reported 

tha t Jolly will “not ask the Supreme Court to reconsider its refusal to hear his case." 

N. Y. Times, Nov. 23, 1971, at 5, col. 3.

141. This presumption of intent to avoid the draft is not easily rebutted. See Commen t, supra note 2 at 8-9 .

142. See id. at 8-21.

143. 50 U.S.C. App. §§ 451-73 (1970) .

144. 50 U.S.C. App. § 462(a ) (1970). By contrast, the maximum penalty for violation of the nation’s first Selective Service Act was only one year imprisonment. Selective 

Service Act of 1917, ch. 15, §§ 5, 6, 40 Stat. 76.

145. Cooper v. United States, 403 F.2d 71 (10th Cir. 1968) (5-year sentence); Quaid v. 

United States, 386 F.2d 25 (10th Cir. 1967) (5-year sentence, conviction reversed on 

other gro unds); Kramer v. United States, 147 F.2d 756 (6th Cir. 1945) (5-year sentence) .

146. Survey conducted by the Selective Service System, N. Y. Times, Apr. 16, 1971, 

at 15, col. 1.
105

whe ther or not to seek an indictm ent.147 Very often he will promise not 

to prosecute if the violator will subm it to induction.148 How ever, the 

U.S. Attorne y has broad discretion in this matter, and once he decides 

to prosecute, the risk of conviction is extremely high. Du rin g fiscal 

1970, less than 20% of those who were charged with draft-related offenses and whose cases were not dismissed were acquitted.149

The average sentence for Selective Service offenses in fiscal 1970 was 

33.5 months ,150 dow n slightly from the two previous years.151 This is 

higher than the average sentences for draft offenses in 1945 and in 

1952, and it is more than 50% higher than the average sentence in 

1965.152 How ever, more than 50% of those convicted during fiscal 1970 

received probation only, 153 up from 39% in 1969 and 10% in 1967.154

In addition, parole is granted more frequently to persons serving terms 

for d raft offenses than to other federal offenders, and dra ft offenders are 

generally paroled after serving about half th eir term .155

C. Conclusion

Most deserters face certain conviction upon retu rn for the offense of 

absence withou t leave for more than thir ty days. These men will probably receive penalties of up to one year’s confinement at har d labor plus 

a dishonorable discharge and its attend ant social disadvantages. Ap parently, very few of the deserters who remain abroad will ever be tried 

and convicted of the offense of desertion. Many deserters living abroad 

have already been given undesirab le discharges by which the armed 

services have forfeited jurisdictio n over them . Th e results of these discharges, of course, include loss of veterans’ benefits and perhaps some

147. 32 C.F.R. § 1642.42 (19 70); see generally Comment, supra note 2, at 2-3.

148. Letter from Robert C. Mardian, Assistant Attorney General, Internal Security 

Division, U.S. Department of Justice, Sept. 23, 1971, on file at the Harvard International 

Law Journal. See N. Y. Time s, Apr. 16, 1971, at 15, col. 1. During fiscal year 1970, 

56% of the 2833 defendants charged with draft-related offenses had their cases dismissed. Administrative Office of the United States Courts, Federal Offenders in the

District Courts, Tabic D-4 (1970) [herein afte r cited as Federal Offenders]. This was 

presumably in return for submission to induction. N. Y. Times, Aug. 30, 1970, at 24, 

col. 1. Cf. 32 C.F.R. § 1643.1-3 (1971), providing tha t convicted draft violators may 

be paroled in return for submission to induction into the armed services or to some form 

of alternative service.

149. Federal Offenders, Table D-5. And, of course, most of those acquitted are 

presumably subject to the draft anew. For a discussion of the defenses available to draft 

evaders, see Comment, supra note 2, at 21-24.

150. Federal Offenders, Table D-5.

151. Id. Table H-10 at 190.

152. Id.

153. Id. Table D-5.

154. Id. at 26.

155. Comment, Sentencing Selective Service Violators: A Judicial Wheel of Fortune,

5 Colum. J. Law St Soc. Prob. 164, 169 (1969).
106

difficulty in securing employment in the United States. However, no 

member of this class of offenders will lose his citizenship.156

With respect to draft evaders, past statistics would indicate that 

roughly 50% of the delinquent draft evaders who decide to return to 

the United States will be inducted into the armed services, approximately 25% will spend an average of 20 months in prison followed by a 

term on parole and all the permanent disadvantages of a criminal record, and between 15% and 20% will be convicted and placed on probation, with the same disadvantages of a criminal record. Less than 10% 

will be tried and acquitted of their draft-related offenses.

There is no statute of limitations which would benefit deserters or 

draft evaders because, under federal law, “no statute of limitations shall 

extend to any person fleeing from justice.”157 [D.L.R.]

PRESIDENTIAL OR CONGRESSIONAL AMNESTY

The penalties attached to the offenses of exiled deserters and draft 

evaders make it unlikely that a significant number of them will return 

to this country voluntarily. Moreover, the United States apparently 

cannot force the return of these exiles, and international agreements 

facilitating their return are probably not forthcoming. Consequently, if 

the decision is made that these exiles should be repatriated, perhaps the 

only means of doing so is to grant them amnesty in some form.

The question of amnesty for deserters and draft evaders has already 

provoked much discussion.158 Groups which have recommended amnesty for draft evaders and/or deserters include a Michigan Democratic 

Convention,159 a convention of Americans for Democratic Action,160

and President Nixon’s White House Conference on Youth.161 Presidential candidate George McGovern has announced that if elected, he

156. Even deserters who are convicted of desertion no longer lose their rights of 

citizenship. 8 U.S.C. § 14 81(a) (8) (1970) , which provided that rights of citizenship 

were forfeited upon conviction for desertion, was held unconstitutional by the Supreme 

Court in Trop. v. Dulles, 356 U.S. 86 (1958) . Four members of the Court characterized 

this loss of citizenship as cruel and unusual punishm ent violative of the 8th amendment 

to the Constitution.

157. 18 U.S.C. § 3290 (1970) .

158. See, e.g., Reston, A Proposal to the President: Vietnam Am nesty, The New 

Republic, Oct. 9, 1971, at 21; Gara, Am nes ty and Reconciliation, Friends Journal, Dec. 1, 

1969, at 676; U.S. News and World Report, Dec. X, 1969, at 15; N. Y. Time s, July 9, 

1971, at 30, col. 3; July 25, 1971, at 10, col. 4; letters to Rep. Koch, 116 Cong. Rcc. 

(H. R.) 11 iff. (daily cd. Jan. 21, 1970) and 116 Cong. Rec. (H. R.) 1035 (daily ed. 

Feb. 18, 1970).

159. N. Y. Times, Aug. 24, 1970, at 13, col. 1.

160. N. Y. Times, May 4, 1970, at 9, col. 1.

161. Task Force on the Draft, National Service, and Alternatives, White House Conference on Youth, Recommendation V, at 7 (19 71). In addition, a group of 16 noted 

academicians recently petitioned the President and Congress for an amnesty for deserters 

and draft evaders. N. Y. Time s, Oct. 19, 1971, at 31, col. 4.
107

will gra nt full and unco nditiona l amnesty to dra ft evaders abroad or in 

jail.102 In addition, legislation conc erning amnesty for dra ft evaders 

has been intro duce d in both houses of Congress. On December 14, 

1971, Senator Robert Taft, Jr., introdu ced a bill offering amnesty to 

draft evaders on the condition tha t they enlist for three years in the 

armed forces or p erform three years of alternative g overnm ent service.163

Un der this proposal convicted draft evaders could subtract up to two 

years’ time served in prison from the three years’ required service. 

Senator Edw ard Kennedy had previously suggested in his proposed 

Selective Service Act of 1971164 that Pres iden t Nix on study the appropriateness of amnesty for dra ft evaders. Congressm an Edward I. 

Koch, (D.-N .Y.), has recently introdu ced one bill165 expand ing 

the conscientious objector status within § 6( j) of the Selective Service 

Act106 so as to include conscientious opposition to participation in a 

particu lar war, and ano the r167 providing tha t all persons in military 

service, in jail, or in exile be given the opportu nity to return to full 

civilian status and claim exem ption from military service as selective 

conscientious objectors. To date, no hearings have been held on any 

of these bills.

The purpose of this discussion is to define the scope of the pardon ing 

power of the Presiden t and of Congress, to consider the ways in which 

this power has been exercised in the past, and to examine the factors 

con frontin g the Pres iden t or Congress in deciding whe ther to gra nt 

amnesty to deserters and draft evaders in the near future. Th e term 

“amnesty” as used here refers to the remission of pun ishment with 

respect to a named class of offenders, witho ut regard to their personal 

identities or individu al circumstances. A “pardon,” on the other hand, 

is a remission of pun ishment with respect to a nam ed individual or a 

gro up of named individuals. A “partia l” pardon o r amnesty remits less 

than the full punishm ent, an d a “conditional” pardon or amnesty makes

162. Statement of Senator George McGovern, News Conference, Washington Press 

Club, Wash ington, D. C., Sept. 23, 1971.

163. S. 3011, 117 Cong. Rec. S21588-89 (daily ed. Dec. 14, 1971). See N. Y. Times, 

Dec. 15, 1971, at 4, col. 3. Senator Ta ft would have alternative service include VISTA, 

Veterans Administration hospitals, Public Health Service hospitals, and othe r services 

provided by appropriate regulation.

164. S. 483, X17 Cong. Rec. S576, S587-88 (daily ed. Jan. 29, 1971).

165. H.R. 831, 92nd Cong., 1st Scss. (19 71).

166. 50 U.S.C. App. § 456(1) (19 70). The Supreme Court recently construed this 

provision as not including persons who object to participation in a particular war. 

Gillette v. United States, 403 U.S. 437 (19 71).

167. H.R . 832, 92nd Cong., 1st Sess. (19 71). See also, Statement of Rep. Edward I.

Koch, Hearings on the Extension of the Draft and Bills Related to the Voluntary Force

Concept and Authorization of Stren gth Levels Before the Hous e Com m, on the Arme d

Services, 92nd Cong., 1st Sess. 507 (19 71). Congressman Koch first publicly raised 

the issue of amnesty follow ing a trip to Canada in 1969. See 116 Cong. Rec. H. R. I l l 

(daily ed. Jan. 21, 1970); N. Y. Times, Jan. 2, 1970, at 15, col. 1.
108

the pardon or amnesty conditional on the performance or non-performance of specified acts.

A. The President’s Power to PardonTM*

The Constitution gives the President the power “to grant reprieves and 

pardons for offenses against the United States, except in cases of impeachment.”169 The Supreme Court stated in Ex Parte Garland that 

except for impeachment, the President’s pardoning power “extends 

to every offense known to the law, and may be exercised at any 

time after its commission, either before legal proceedings are taken, 

or during their pendency, or after conviction and judgment.”170

In Garland the Supreme Court ruled that Congress cannot interfere 

in any way with the President’s exercise of his power; it can neither 

limit the effect of a presidential pardon, nor exclude any persons from 

it.171 Garland concerned the petition of an attorney to practice in the 

federal courts without taking an oath prescribed by Congress.172 In 

taking the oath, Garland would have had to swear that he had never 

served in the Confederacy in any official capacity. He was unable to 

take this oath. In July of 1865, however, he received a full pardon from 

President Johnson for all offenses related to his participation in the 

Confederate rebellion. The Supreme Court held that the congressional 

acts involved could not apply to Garland, for their application would 

restrict the President’s power to pardon. Thus, the Court refused to 

limit the President’s pardoning power as applied to the grave offense 

of treason. However, after Garland the question of the President’s 

power to grant amnesty to a class of offenders, rather than a pardon to 

a named offender, presumably remained open.

1. The President’s Power to Grant Amnesty

The President’s power to grant amnesty was hotly contested during the 

Civil W ar and Reconstruction period. In 1862 Congress felt that it was 

necessary to authorize the President to grant amnesties, and it did so in

168. See generally W. Humbert, The Pardoning Power of the President (19 41); 

Comment, Th e Pardoning Power of the Chief Executive, 6 Ford. L. Rev. 255 (19 37) ; 

Bonaparte, Th e Pardoning Power, 19 Yale L.J. 603 (19 10); Jones, Clemency in the

United States Army , 49 Case & Com., no. 2, 14 (Winte r, 1943-44 ); Chapman, Presidential Pardons, 1957 J.A.G. J. 7 (May, 1957).

169. U.S. Const, art. II, § 2.

170. Ex Parte Garland, 71 U.S. (4 Wall.) 333, 380 (1866).

171. Id. at 381.

172. Act of July 2, 1862, ch. 128, 12 Stat. 502; Act of Jan. 24, 1865, ch. 20, 13 

Stat. 424.
109

an Act of July 17, 1862.173 However, when President Lincoln proclaimed his first amnesty for Confederate supporters in 1863,1, 4 he 

denied that his authority to do so was in any way derived from Congress, stating that the Constitution gave him “absolute discretion” in 

the matter.175 President Johnson agreed with this position,1

'

6

 but in 

1867 Congress repealed177 its authorization in an attempt to prevent 

President Johnson from granting further amnesties to former Confederate personnel.178 When President Johnson went ahead with a full, 

unconditional amnesty for all form er Confederates in 1868,1

 ‘9

 the Radicals in Congress insisted that he had no authority to do so.180 In 1869 

the Senate Judiciary Committee submitted a report declaring that the 

President had no power to grant amnesties.181 Their reasoning was 

that there is a clear distinction between the concepts of pardon and 

amnesty; that the framers of the Constitution were aware of this distinction; and that they would have used both words if they had wanted 

to give the President the power to grant amnesties. A scholarly article 

of the time convincingly rebutted this argument and presented evidence 

of the intention of the members of the Constitutional Convention to 

include amnesties within the President’s pardoning power.182

The dispute culminated in the Supreme Court decisions of United

States v. Kle in133 and Armstrong v. United States.134 In both cases 

claimants sought the recovery of property captured by Union forces 

during the Civil War. Congress had provided185 for the restoration of 

such property if a claimant could prove that he had never given aid or 

comfort to the rebels. The Court ruled that since each claimant had 

benefitted from a presidential amnesty186 restoring all property rights,

173. Ch. 195, § 13, 12 Stat. 589 (18 62).

174. Proc. of Dec. 8, 1863, 13 Stat. 737.

175. Third Annual Message to Congress, Dec. 8, 1963, 6 Th e Messages and Papers 

of the Presidents, 1789-1894, 188-89 (I- Richardson ed. 1896) [here inafter cited as 

Messages].

176. Message to the Senate, Jan. 18, 1867, id. at 697.

177. Act of Jan. 21, 1867, ch. 8, 14 Stat. 377.

178. He had already gran ted two: Proc. of May 29, 1865, 13 Stat. 758; Proc. of 

Sept. 7, 1867, 15 Stat. 609.

179. Proc. of Dec. 25, 1868, 15 Stat. 711.

180. See, e.g., Cong. Globe, 39th Cong., 1st Sess. 2470, 2511-12 , 2532 -37, 2914-21 

(18 65); 39th Cong., 2nd Sess. 8, 9, 14, 15, 143-45, 267-69, 273-74 (1866) .

181. S. Rep. No. 239, 40th Cong., 3rd Sess. (18 69).

182. L. C. K., The Power of the President to Grant a General Pardon or Am nesty for

Offenses Against the United States, (pts. 1- 2), 8 Am. L. Reg. (New Series) 513, 577 

(1869) .

183. 80 U.S. (13 Wall.) 128 (18 72).

184. 80 U.S. (13 Wall.) 154 (18 72).

185. Abandoned and Captured Property Act, ch. 120, 12 Stat. 820 (18 63).

186. The deceased Wilson, whose estate was administered by Klein, had taken the 

oath required by President Lincoln’s conditional amnesty of Dec. 8, 1863. See notes 174 

and 175 supra. Mrs. Armstrong benefitted from the full and unconditional amnesty 

gran ted by President Johnson on December 25, 1868. See note 179 supra.
no

prior loyalty to the Union need not be proven. In Klein the Court 

gave no weight to Congress’ repeal187 of its 1862 authorization188 of 

presidential amnesties, stating that the original authorization was merely 

a “suggestion” and not “authority.”189 The Court further held unconstitutional a later Act of Congress190 which barred evidence of presidential pardons or amnesties in support of any claim against the United 

States, on the ground that Congress could ro t change the effect of 

presidential pardons or amnesties.191 The Court ruled expressly in both 

KleinTM2

 and ArmstrongTM2

 that the President’s power to pardon includes the power to gran t amnesties; and that courts must give effect 

to such amnesties.

2. The President’s Power to Grant Conditional Pardons and Amnesties

In addition to his power to grant pardons and amnesties, the President 

also has the power to grant conditional pardons or amnesties. In Ex

Parte WellsTM4

 the Supreme Court upheld a pardon which President 

Fillmore had granted to a convicted murderer on the condition that he 

submit to imprisonment for life in place of his death sentence. The 

Court reasoned that the President’s power to grant full pardons necessarily included the power to grant less than full pardons. Other examples of the federal courts’ upholding of conditional pardons include 

In Re Ruhl,TM2

 in which the condition had been payment of certain fines 

and costs; Kavalin v. White,

190 where the condition was deportation of 

the prisoner from the United States; and United States v. Six Lots of

Ground,TM7

 where a prisoner was pardoned on the condition that he 

refrain from pressing certain claims against the government for land 

which had been confiscated. And although the Supreme Court has 

made few pronouncements in this area, it seems clear that the President has the authority to attach to a pardon any condition he wants, so 

long as the condition is not illegal in nature or impossible to fulfill.198

187. See note 177 supra and accompanying text.

188. See note 173 supra and accompanying text.

189. 80 U.S. (13 Wall.) at 139.

190. Act of July 12, 1870, ch. 251, 16 Stat. 235.

191. 80 U.S. (13 Wall.) at 148. The Court also held the Act unconstitutional because 

of its interference with the judicial branch of the Government. In Klein the Act, as 

applied, could have opened up a final judgment of the Court of Claims which was 

mad e before the Act came into effect.

192. Id. at 147.

193. 80 U.S. (13 Wall.) at 156.

194. 59 U.S. (18 How.) 307 (18 56).

195. 20 F. Cas. 1335 (No. 12,124) (D.C. Ncv. 1878).

196. 44 F.2d 49 (10th Cir. 1930).

197. 27 F. Cas. 1097 (No . 16,299) (C.C. La. 1872).

198. Id. at 1098. Accord, Kavalin v. White, 44 F.2d 49, 51 (10 th Cir. 1930).
I ll

If the grantee violates the condition, the pardon becomes void and the 

original penalty or prosecution is enforced.199

Th e Presiden t’s power to gra nt conditional amnesties, as opposed to 

conditional pardons, was upheld by the Supreme Court in United

States v. K lein.200 Althou gh the Court did not use the word “amnesty” 

in reaffirming the principle tha t the Presiden t can “annex to his offer 

of pardon any conditions or qualifications he should see fit,”201 the 

presidential act which the Court enforced in Klein was a conditional 

amnesty.202 Other conditional amnesties203 have been granted by American Presidents, and their power to gra nt them has never been questioned in the courts.

J. Th e Effects of a Full Presidential PardonTM

In Ex Parte GarlandTM the Supreme Court stated tha t a full pardon 

“blots out of existence the guilt, so that in the eye of the law the offender 

is as innocent as if he had never committed the offense . . . . [I ]t 

removes the penalties and disabilities and restores him to all his civil 

rights; it makes him, as it were, a new man, and gives him a new 

credit and capacity.”206 Presu mably, this rationale applies as well to a 

full amnesty. Th e Supreme Cou rt, in discussing the legal effects of 

Presiden t Johnson’s full and unco nditional amnesty of 1868,207 stated 

in Kn ote v. United StatesTM that “the distinction between [pardon and 

amnesty] is one rather of philological interest than of legal importance.”209

199. People v. Potter, I Park er Cr. Rep. 47 (N.Y . 1846); People v. Burns, 77 Hun. 

92, 28 N.Y. Supp. 300 (Sup. Ct. 1894), aff'd, 143 N.Y. 665, 39 N.E. 21 (1894) .

200. 80 U.S. (13 Wall.) 128 (18 71). See pp. 115-16 supra.

20X. 80 U.S. (13 Wall.) at 142.

202. See note 174 supra and accompanying text. Th e difference between the terms 

“pa rdon" and “amnesty” breaks down in the area of conditional amnesties because of 

the need for individua l enforcement. For although the presidential proclamation is an 

“amnesty,” pertaining to an entire class of offenders, each indiv idual offender must 

report to the authorities to perform the condition attached to the amnesty, e.g., to take 

an oath. When the condition is performed it is as if the offender received an individual 

pardon.

203. See, e.g., Proc. of May, 1865, 13 Stat. 758 (Pres. Johnson, reiterating Pres. Lin ­

coln’s amnesty proclamation of 1863 ); Proc. of Jan. 4, 1893, 2 7 Stat. 1058 (Pres. 

Harrison, regarding amnesty for Mormons convicted of bigamy, polygamy and unlaw ful 

cohabitation); Proc. of Sept. 25, 1894, 28 Stat. 1257 (Pres. Cleveland, reiterating Pres. 

Harrison’s amnesty proclamation of 1893).

204. See Williston, Does a Pardon Blot Out Guilt?, 28 Harv. L. Rev. 647 (19 15); 

Note, Legal Effect of a Pardon, 13 Colum. L. Rev. 418 (19 13).

205. 71 U.S. (4 Wall.) 333 (1866).

206. Id. at 380-81. See Knote v. United States, 95 U.S. 149, 153 (18 77).

207. See note 179 supra.

208. 95 U.S. 149 (1877) .

209. Id. at 153.
112

Althou gh an amnesty or pardon “restores [the grantee] to all his 

civil rights,” the restoration of rights is not absolute.210 A pardon or 

amnesty will not result in any compensation by the governm ent for 

punishm ent suffered prior to the pardon or amnesty,211 nor will it affect 

any rights vested in a thir d party as a result of the pard oned offense.212

In addition, a pardon or amnesty will not restore certain legal rights. 

For example, the pardoned offense may be raised in some jurisdictions 

in order to impeach a witness213 or to reject an application for citizenship. 214 Public offices which have been forfeited because of pardoned offenses mig ht not be restored.215 Generally, however, the rights to vote, 

hold public office, and serve on juries, and most other basic rights attach ­

ed to Unite d States citizenship, are restored by a full pardon or amnesty, 

or by a pardon or amnesty declaring such rights to be restored.216 Obviously a pardon cannot prevent the operation of veiled social discrimination against the grantee such as ostracism or difficulty in obtaining 

employment.

B. Congress’ Power to Enact Amnes ties

The scope of Congress’ par don ing power is less clear than the scope of 

the Pres ident’s power, prim arily because Congress has rarely exercised 

its power. 217 In 1893 Congress enacted an amnesty gra nting imm unity

210. See Williston, supra note 204.

211. Knote v. United States, 95 U.S. 149, 153-54 (187 7) (di ctu m) . •

212. Id. at 154. Knote should be distinguished from Klein and Armstrong, supra

notes 183-84, where the property petitioners sought had not vested in a third party but 

was being held by the U.S. Treasury pursuant to statute. See also W. Hum bert, supra

note 168, at 79; Cozart, The Benefits of Executive Clemency, 32 Fed. Prob. no. 2, 33 

(June, 1968).

213. Bennett v. State, 24 Tex. Ct. App. R. 73 (18 77); see Maguire et al., Evidence 

321 (19 65), and cases cited therein.

214. In re Spenser, 22 F. Cas. 921 (No. 13,234) (C.C. Ore. 1878).

215. State v. Carson, 27 Ark. 469 (1872).

216. Cozart, supra note 212. Of course, partial or conditional pardons or amnesty 

may, by their very nature, operate to deny legal rights. See, e.g., Ex Parte Wells, supra

note 194, where the Supreme Court affirmed the pardon of a convicted murderer conditioned upon submission to life imprisonment.

For a list of those civil rights which are lost by convictions of various crimes, see

Federal Probation Officers Assoc., A Compilation of State and Federal Statutes Relating 

to Civil Rights of Persons Convicted of Crime (i96 0) .

217. Congress has gran ted amnesty only four times, and each of these amnesties was 

limited in scope. Three were partial amnesties removing only civil or political disabilities. Act of May 22, 1872, ch. 193, 17 Stat. 142 (rem oving political disabilities 

imposed by the thir d section of the 14th Amendment to the Con stitu tion ); Act of 

May 13, 1884, ch. 46, 23 Stat. 21 (lifting certain disqualifications on grand and petit 

jurors); Act of June 6, 1893, ch. 389, 30 Stat. 432 (removing all political disabilities 

imposed by the third section of the 14th amend me nt). One was a full amnesty benefiting a small class of persons. Act of Feb. 11, 1893, ch. 83, 27 Stat. 443 (providing for 

imm unity from prosecution for persons testifying before the ICC ).
113

from prosecution to all witnesses testifying before the Interstate Commerce Commission.218 In Brown v. Walter,219 the Supreme Court held 

that this act did have the full effect of an amnesty, and that a subpoenaed witness could not therefore be excused from testifying on the 

ground that he might incriminate himself. The court stated that although the Constitution vests the pardoning power in the President, 

“this power has never been held to take from Congress the power to 

pass acts of general amnesty.”220 The reasoning behind this conclusion 

was not made clear by the Court, although the Court implied that the 

amnesty power, commonly exercised by the English Parliament, had 

been traditionally derived from the legislature’s “sovereign power.”221

Certain questions with respect to the congressional pardoning power 

remain unanswered by the Supreme Court. For example, it is not clear 

whether Congress has the power to grant pardons in addition to amnesties. The concepts of pardon and amnesty are often clearly distinguished 

by scholars who place the individual pardon power in the province of 

the President alone222 by emphasizing the legislative character of an 

amnesty,223 which takes away the consequence of a particular offense 

without regard to who the offenders are. The predom inant view, how218. Act of Feb. 11, 1893, ch. 83, 27 Stat. 443.

219. 161 U.S. 591 (18 96).

220. Id. at 601.

221. Id. Of course, Congress could not be said to have the same degree of “sovereign 

power" as the English Parliament, since in this country, unlik e England, the legislature 

is subject to limitations imposed by the Constitution and the doctrine of separation of 

powers.

Whatever doub t mig ht arise concerning Congress’ power to grant an amnesty outright 

to draft evaders and deserters could probably be avoided if Congress were to make the 

amnesty ancillary to othe r Congressional legislation relevant to the change from wartime 

to peacetime. For Congress does have the power to abate prosecutions by means of 

legislation subsequent to the performance of unlawful acts. In Ha mm v. Rock. Hill,

379 U.S. 306 (19 64), for example, the Supreme Court held tha t after the enactment of 

Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2001a (19 70), states could not 

prosecute participants in sit-ins even though the sit-ins preceded the enactmen t of the 

Civil Rights Act and were at the time unlawful under state law. Similarly, if Congress 

were to enact Congressman Koch’s bills, notes 165 and 167 supra, broadening the scope 

of the conscientious objector (C.O .) status, it could presumably gra nt amnesty, or abatement from prosecution, for all draft evaders whose objection to the war would have 

placed them within the new C.O. status. And since it would be extremely difficult to 

separate this class of offenders from all others, Congress could gra nt amnesty to all draft 

evaders, as part of its enactment affecting the C.O. status.

222. See, e.g., Radin, Legislative Pardons: Another View , 27 Calif. L. Rev. 387, 391 

(19 39); Barnett, Executive, Legislature, and Judiciary in Pardon, 49 Amer. L. Rev. 684, 

693-698 (19 15).

223. It has been suggested tha t the procedure Congress would follow in grantin g an 

amnesty would be similar to its procedure in repealing or modifying a law. W. Humbert, 

supra note 168. For example, if Congress granted amnesty to draft evaders after determining tha t it was no longer just or expedient to enforce the pun ishment provisions of 

the Selective Service Act (50 U.S.C. App. § 462 (1 97 0)), then Congress would, in 

effect, be repealing or suspending retrospectively tha t portion of the Act.
114

ever, seems to be tha t Congress’ pardoning power includes both amnesties and pardons, 224 since a distinction between the two has never been 

made in Anglo-Saxon law. Moreover, the Supreme Court has upheld, 

in Th e Laura? 2* the remission of a fine by the Secretary of the T reasury 

pursua nt to Congressional authorization.226 Th e Court ruled that the 

Pres ident’s power to pard on offenses and rem it penalties was not exclusive, and that Congress had frequently authorized subo rdinate officers 

to rem it fines and penalties.227 Since the remission of a fine is nearly 

equivalent to a pardon,228 if Congress can delegate Government officials 

the power to remit fines, it seems to follow that Congress itself has the 

power to gran t pardons.

An other question concerns the extent to which Congress can inte rfere with the P resident’s exercise of his pardon ing power.229 Th e courts 

have held that Congress cannot restrict in any way the effects of a 

presidential pard on. 230 They have never said tha t if a Preside nt deliberates and decides against an amnesty, Congress may not enact one 

itself. It seems clear tha t both the President and Congress have certain 

pardon ing powers; within the scope of their respective powers, each 

could expand on an amnesty granted by the other if it was deemed insufficient, but neither could limit the effects of the oth er’s amnesty. Th e 

problems which mig ht arise would probably be more political than constitutional.231

It should be noted, in conclusion, that from a practical point of view, 

the Presiden t is in a superior position to gra nt pardons and amnesties. 

He can command studies and assemble data more efficiently than 

Congress, and he can arrive at decisions quickly without makin g the 

sacrifices necessary in political barg aining.232 Perhaps this is w hy Congress has enacted so few amnesties, while American presidents have 

granted numerous amnesties throug hou t this country ’s history.

224. See, e.g., Wcihofen, Legislative Pardons, 27 Calif. L. Rev. 371, 383 (1939).

225. 174 U.S. 411 (18 85).

226. Act of Feb. 28, 1871, ch. 100, § 64, 16 Stat. 458.

227. 114 U.S. at 413-15. The Court noted that it had previously upheld a similar 

congressional autho rization in United States v. Norris, 25 U.S. (10 Wheat.) 246 (1825).

228. A remission of a fine may not go so far as to "blo t out” the offense and make 

the offender as innocent as if he had never committed the offense. See p. 118 supra.

The offender is relieved of his duty to pay the fine, but presumably the original records 

of the offense remain. However, since even a full pardon falls short of making the 

offender “a new ma n”, (see p. 118 supra}, there would appe ar to be little practical 

difference between a pardon and the remission of a fine.

229. W. Humbert, supra note 168, at 44-45.

230. See p. 117 supra.

231. For example, the President mig ht oppose congressional amnesty if he himself 

had deliberated and decided against such an amnesty. In this case, he mig ht veto a 

congressional amnesty, but Congress mig ht then override the President's veto. Of course, 

once a congressional amnesty became law, the President could not lim it its scope.

232. W. Hum bert, supra note 168, at 45.
115

C. Amnesties Granted by American Presidents

The executive amnesty power was exercised on several occasions during 

the early decades of this nation’s history.233 Between 1807 and 1830, 

five amnesties were granted to deserters from the armed services.234

The condition most commonly attached to these amnesties was that a 

deserter turn himself in to a Commanding Officer within a certain time 

and fulfill the remainder of his term of duty.235 Although two or three 

of these amnesties were proclaimed in order to raise troop levels for 

oncoming conflicts, it appears that at least two of the amnesties for 

deserters had forgiveness as their only motive.236

During the Civil War and Reconstruction extensive use was made 

of the President’s amnesty power. On March 10,1863, President Lincoln 

proclaimed amnesty and full restoration to rights and duties for all soldiers absent without leave from the Union forces, provided they 

returned to their respective units within 21 days.237 Later that year the 

President granted the first broad amnesty benefitting Confederate rebels, his motive being to weaken the morale of the South and cause its 

soldiers to desert.238 This amnesty239 of December 8, 1863, extended to 

all persons who participated either directly or indirectly in the Confederate cause a restoration of all civil and property rights,240 on the con233. President Wash ington first exercised the executive amnesty power in 1795 following the Whiskey Rebellion, a disorderly demonstration by Western Pennsylvania residents protesting the federal excise tax on whiskey. The President proclaimed an amnesty 

for all parties involved for their offense of treason on the condition tha t they give assurances of submission to the laws of the United States. 1 Messages, supra note 175, at 

181. Five years later President Adams granted a similar amnesty to participants in a 

small Massachusetts insurrection. 1 Messages 303.

In 1807, President Jefferson proclaimed a full pardon for all deserters from the U.S. 

Army who had sought shelter outside the jurisdiction of the courts-martial. 1 Messages

425. The condition attached to this amnesty was that each deserter simply turn him ­

self in to any Com manding Officer within four mon ths and resume his military duties. 

Amnesties identical to Jefferson's were proclaimed by President Madison on Feb. 7, 1812, 

and Oct. 8, 1812, ostensibly to raise the troop levels to fight the British. 1 Messages

512, 514. A fourth amnesty of the same natu re was proclaimed by President Madison on 

June 17, 1814. I Messages 543. Finally, an executive order of June 12, 1830, issued 

by John H. Eaton, President Jackson’s Secretary of War, pardoned all deserters previously 

indicted or convicted and allowed them to return to duty, and discharged and pardoned 

all deserters at large provided tha t they wou ld never again serve in the army . 2 Messages

449-

234. See id.

235. Id.

236. Th e amnesties of June 17, 1814, and June 12, 1830, would seem to have had no 

tactical significance, since at the time they were granted the nation was not preparing 

for war. See id.

237. 6 Messages 163.

238. J. Dorris, Pardon and Amnesty Under Lincoln and Johnson 28 (1953) [he reinafter cited as Dorris].

239. Proc. of Dec. 8, 1963, 13 Stat. 737.

240. Of course, property rights as to slaves, no longer recognized by the Union, were 

not restored.
116

dition that they take an oath to supp ort the Con stitu tion and the Union. 

Since the Union forces were definitely on the upswin g militarily at 

tha t time,241 tens of thousands of demoralized Confederates were 

easily enticed into tak ing the oath of allegiance to the Union.242 Lin ­

coln’s amnesties thus extended not only to Union deserters but to citizens who had committe d the treasonous act of enlisting in the ranks of 

the enemy.

Tw o proclamations of amnesty durin g the Civil W ar period are of 

particu lar interest as precedents for a possible amnesty in the near 

futu re. On March n , 1865, when the Civil W ar was nearly over, President Lincoln granted amnesty to all U nion deserters who wou ld retu rn 

to their posts within 60 days and serve the remainder of their military 

tours of duty plus a period of time equa l to their una uthorized absence.243 Wi th the war almost ended, and with a generous period of 

tim e244 in which to return to duty, it appears tha t this amnesty was 

proclaimed less for tactical reasons than for reasons of forgiveness and 

to avoid future divisiveness and dislocation of American citizens. Likewise, President Johnson’s amnesty of May 29, 1865,245 which was announced after the war had formally ended, evinced a desire to forgive 

the offense of treason and to bring Southerners back into a free and 

productive role w ithin the Union. In his Proclamations of September 7, 

1867 and July 4, 1868,246 Pres iden t Johnson exten ded amnesty to classes 

of persons excluded from previous amnesties.247 On December 25, 

1868, he proclaimed amnesty “unconditionally and withou t reservation, 

to all and to every person who directly or indirectly, participated in the 

late insurrection or rebellion, and a full pardon and amnesty for the 

offense of treason against the United States.” 248 Am ong the 37 Confederate leaders finally pardoned by this extension of amnesty were 

Jefferson Davis and Generals Lee, Rooney, Custis, and F itzhugh Lee.249

Dr aft evaders and deserters benefitted from no amnesties durin g or 

afte r Wo rld W ar I.250 How ever, thirty persons convicted und er the

241. Lincoln, Third Annual Message to Congress, Dec. 8, 1863, 6 Messages 188.

242. Dorris 62-6 3.

243. 6 Messages 278.

244. 21 days were allowed for return to duty in the Proc. of Mar. 10, 1963, supra

note 237.

245. Proc. of May 29, 1865, 13 Stat. 758.

246. 15 Stat. 699 (186 7) and 15 Stat. 792 (1868) .

247. See Pres. Lincoln's Proc. of Dec. 8, 1863, supra note 239; Pres. Johnson’s Proc. 

of May 29, 1865, supra note 245.

248. Proc. of Dec. 25, 1868, 15 Stat. 711.

249. Dorris 311.

250. After both World Wars, amnesty was extended to deserters with respect to the 

restoration of rights of citizenship. Proc. of Mar. 5, 1924, 43 Stat. Pt. II 1940; Proc. of 

Dec. 31, 1952, 17 Fed. Reg. 11833. However, these partial amnesties applied only to 

persons who had deserted after hostilities had ended and before Congress had declared 

the wars to be over. Since citizenship may be forfeited by desertion only durin g wartime,
117

Espionage Act261 for obstruction of the dra ft received a commutation 

of their sentences to the time already served on December 15, 1923.252

These pardons granted by the P resident were the culmination of almost 

two years of controversy which bega n before t he Hou se Judiciary Com ­

mittee in March, 1922.253 Since the issues of this draft-related dispute 

are arguably relevant to the issue of amnesty today, it is w orthwhile to 

men tion at least the resolution of the Espionage Act cases.

Several thousand persons were originally convicted and sentenced to 

prison264 under the Espionage Act, which imposed a fine of $10,000 or 

imprisonment of up to 20 years for a wilful atte mpt to cause disloyalty 

within the armed services or obstruction of the draft.265 Du rin g 

the postwar years most of these offenders had their sentences commuted on an individual basis to the time already served.266 At the time 

of the congressional hearings, only 113 offenders remained in prison; 

well over half of these were serving sentences of five years or more, and 

11 were serving the full 20 years.257 Th e Americ an Civil Liberties 

Union advanced two major argume nts in behalf of these 113 offenders. 

First, none of the offenders had ever been an agent of the enem y, and 

their convictions were based not on violent acts but solely on acts involving speech and writing .268 Second, the offenses were of a political, 

not crim inal n ature, and since the war and the need for enforcement of 

the Espionage Act had ended, these persons should be p ardoned.259 Th e 

hearings resulted in no congressional action. How ever, the Pres iden t 

did appo int a commission to study all cases individually, and the recom ­

mendations of this commission were the basis of the President’s pardons 

of December 15, 1923.260

Perhaps the most important precedent in this cou ntry ’s history for 

granting pardons or amnesty to deserters and dra ft evaders is the action 

which Presiden t Tr um an took with respect to dra ft violators shortly 

after the close of Wo rld W ar II. On December 25, 1946, he created by 

executive order261 the three-man Preside nt’s Amnesty Board262 to ex8 U.S.C. § 1481(8) (1970), these amnesties gave peacetime deserters only what was already due them.

251. Act of June 15, 1917, ch. 30, 40 Stat. 217, as a mende d ch. 75, 40 Stat. 553.

252. 1924 A tt’y Gen. Ann. Rep. 387. One of the released convicts was Eugene V. Debs.

253. Hearings Before the House Com m, on the Judiciary, 67th Cong., 2nd Sess. (192 2) 

[hereinafter dted as Espionage Act Hearings], See also 62 Cong. Rec. 277, 8352, 13178 

(191 9)-

254. Espionage Act Hearings 2.

255. Act of June 15, 1917, ch. 30, § 3, 40 Stat. 217.

256. Espionage Act Hearings 2.

257. Id. at 5.

258. Id. at 2.

259. Id. at 9.

260. See note 252 supra.

261. Exec. Order 9814, 1946 Fed. Reg. 14645 (19 46).

262. The members of the Board were the Hon. Owen J. Roberts, former Justice of the

31-65 8 0 - 7 4 - 9
118

amine the cases of all persons convicted of violating the Selective T raining and Service Act of 1940.263 Th e Board subm itted its repo rt within 

a year, and, as a result of its recommendations, the Preside nt granted 

full pardons to 1523 of the 15,805 offenders.264

Th e most striking aspect of the Pres iden t’s Amnesty Board was that 

while it was confronted with over 15,000 cases of selective service violations, it decided to consider each case individually. Th e question of 

gra nting a gene ral amnesty was discussed by the Board at the outset, 

but they decided unan imou sly not to recommend an amnesty for two 

reasons. First, they realized that there were many flagrant criminals 

amo ng the violators, persons whose draft violations stemmed from 

larger crimes. 265 Second, the Board decided tha t the presidential mandate to “examine and consider the cases of all persons convicted . . . ,”266

gave rise to a strong inference tha t the Preside nt intended the cases to 

be dealt with individually. 267

In dealing w ith the cases individually, the members of the Board had 

the assistance of 16 full-time attorneys268 who compiled data concerning 

the family history, school and work records, criminal records, and selective service history of each offender. In considering this data the 

Board used no specific standards or formu lae. They took all mitigating 

circum stances into consideration, such as ill health in the family, other 

family problems, illiteracy, or lack of understanding of obligations und er 

the Selective Service Act.269 Each offender under consideration had the 

opp ortunity to file a brief and appear at a hea ring to state his case. 

Various organiz ations also testified at the hearings.270

United States Supreme Court; Mr. Willis Smith, former Pres, of the American Bar Assoc.; 

and Mr. James F. O’Neill, form er Police Chief of Manchester, N.H .

Note the misnomer of "Amnesty Board,” since the Board was asked to consider ind ividual cases and recommend indiv idual pardons. See text at note 266.

263. Ch. 720, 54 Stat. 885 (1940).

264. Proc. of Dec. 23, 1947, 62 Stat. 1441.

265. Arguably this should have had no bearing on the question of whether or not 

to gra nt a general amnesty, for those offenders simultaneously guilty of more serious 

crimes could still serve their sentences for these crimes. All tha t would be remitted by 

an amnesty for draft offenders would be the additional sentence resulting from the draft 

offense. Clearly, the Board though t tha t this class of dra ft offenders was morally less 

deserving.

266. 1946 Fed. Reg. 14645.

267. Interview with Mr. James F. O’Neill, Member of the President’s Amnesty Board, 

July 27, 1971 [here inafter cited as Interview, July 27, 1971].

268. Letter from Mr. W. Naramore, head of the staff of independent attorneys assisting the President’s Amnesty Board, Aug. 12, 1971, on file at the Harvard International 

Law Journal. These attorneys received the cooperation of the Justice Department; they 

were paid at first by a White House emergency fund, late r by the Justice Department.

It is interesting to note tha t, with respect to the amo unt of time which must have been 

spent on each case, the members of the President’s Amnesty Board met only on weekends 

and holidays and provided their services on a voluntary basis. Interview, July 27, 1971.

269. Interview, July 27, 1971.

270. Id.
119

In some ways the President’s Amnesty Board seemed to be little more 

than an appeals board, correcting the mistakes of prior court rulings and 

taking mitigating circumstances into consideration where the court 

failed to consider them.271 However, a former Board member maintains that the Board went well beyond the role of an appeals board and 

recommended pardons for hundreds of men who, to his mind, had no 

“right,” under the laws as they existed then, to be spared punishment.272

D. Factors Confronting Congress and the President

in Their Decision on Amnesty

i. Practical Considerations Surrounding the Options Available to Congress and the President

It is clear that both Congress and the President have a number of 

options available to them for dealing with draft evaders and deserters. 

Each has the apparent authority to pardon any individual offender or 

class of offenders.273 In addition, each can grant a partial pardon or 

amnesty, rem itting only part of the punishment suffered for an offense. 

Likewise, each can attach conditions to any pardon or amnesty. Finally, 

it follows logically that different individuals or different classes of offenders can be dealt with in different ways, if there are compelling 

reasons to do so.

Before deciding on a given course of action with respect to draft 

evaders and deserters, Congress or the President would have to consider 

the practical problems and consequences of the various options open to 

them. Clearly the creation of a pardon board similar to President Tr uman’s Amnesty Board would pose the greatest number of administrative difficulties. For whereas the Truman Board was dealing with 

15,805 known persons within the United States who had all been convicted and about whom much data became available, today there are 

few records of the numbers, identity, and whereabouts of these exiles. 

Finding a way to make the exiles known to the pardon board, to 

compile a complete dossier on each individual, and to allow the exiles 

to submit to the “jurisdiction” of the pardon board without simulta271. Th e Board was criticized for not recom mending pardons for a greater percentage 

of the draft offenders. In addition, it was criticized for arbitrariness, lack of standards, 

and discrimination against Jehovah’s Witnesses and othe r self-proclaimed ministers or 

conscientious objectors. See, e.g., Statement of the Rev. A. J. Muste, Chrm., Comm, for 

Amnesty, on the Pardons Granted by President Trum an, Dec. 23, 1947 (1948).

The overall response to the Board’s recommendations was, however, favorable. Interview, July 27, 1971.

272. Interview, July 27, 1971.

273. Congress’ authority to grant pardons to named individuals has not been exercised 

or tested in the courts. See pp. 119-20 supra.
120

neously submitting themselves to prosecution for their offense274 would 

involve an extremely complicated process. In addition, the lack of welldefined standards and the limited amount of time275 given each case 

under the T rum an Board suggest that the outcome in certain cases must 

have been highly arbitrary. Although clearer standards might be provided for a board operating today, the larger number of draft evaders 

makes it unlikely that such a board, regardless of the machinery made 

available to it, could have the time to reach a well-considered result in 

individual cases.

These administrative difficulties might be avoided with an amnesty, 

granted without regard to individual circumstances. However, an amnesty would give rise to other difficult questions. First, how would one 

define the class or classes of offenders entitled to receive amnesty? 

Should deserters be included in the same amnesty with draft evaders, 

and should deserters and draft evaders in exile be treated differently 

from their counterparts in jail? Second, are there means of further 

subdividing these broad classes of offenders for purposes of treating 

different groups in different ways? Individual motives and the degree 

to which one might be considered a conscientious objector might be 

meaningful factors in defining the scope of an amnesty. However, such 

factors cannot be used to limit the scope of an amnesty because by 

definition an amnesty takes no individual circumstances into account. 

It defines those to be pardoned according to the external aspects of the 

offense committed without regard to the identity or personal circumstances of the individuals involved.276

Further questions pertain to the conditions to be attached to an amnesty, and the means to be relied on for enforcing them. One suggestion 

would be to require draft evaders to submit to induction in the armed 

services, or to perform two or more years of some form of alternative 

service, as a condition to receiving the benefits of an amnesty.277 Likewise, deserters might be required to return to their posts and to serve 

a period of time equal to the remainder of their term plus the length 

of their unauthorized absence, a condition attached to 19th-century am274. This last consideration is imp ortant in orde r to entice exiled deserters and draft 

evaders to take advantage of the pardon board.

275. Given tha t the Board met only on weekends and holidays, note 268 supra, and 

tha t 15,805 cases were considered over the course of about one year, the Board must have 

devoted to each individua l case an average of less than five minutes.

276. An amnesty mig ht take into account whether or not a self-declared conscientious 

objector took steps to become classified as a C.O., since this would be one of the "external aspects” of the particular offense by which an amnesty mig ht define the class of 

offenders to be pardoned . However, such a factor would not be a meaningful means of 

limiting the scope of an amnesty.

277. This suggestion has been made by Mr. James F. O’Neill, member of the President’s Amnesty Board of 1947. Inte rview, July 27, 1971. Cf. Senator Ta ft’s amnesty 

bill, supra note 163.
121

nesties for deserters. 278 A variation of this plan might allow deserters 

to serve the required period of time in non-c ombat military service. All 

of the above conditions would have the adva ntag e of being easily enforceable, since the agents of enforcement, the armed services for those 

who sub mit to in duction or return to duty , and the dra ft boards for those 

who choose alternative service, are already in existence. In addition, the 

adm inistration of an amnesty would be facilitated by attaching as a condition the require ment tha t exiles report to designated bord er posts or 

military bases within a given time period to benefit from the amnesty.279

2. Policy Considerations

Th e administrative details of an amnesty or even a pardon board could 

be resolved if Congress or the Pres ident decided to gra nt some form of 

amnesty o r pardons. Th e more im med iate question is whethe r Congress 

or the Pres iden t will ever make this decision, and what policy considerations will influence them in their decision.

Policy considerations weig hing against an amnesty or pardons include, first, the notion tha t law breakers oug ht not to be forgiven, particularly where their offense has, in one sense, imperiled the lives 

of those who took their places.280 Second, an amnesty might cause 

a decline in morale and discipline within the arm ed services, thereby wea kening military effectiveness.281 Th ird , an amnesty might 

mak e it difficult to operate a military dra ft in the futu re, since future

278. See pp. X21-22 & note 233 supra.

279. This again was part of Mr. O’Neill’s suggestion. See note 277 supra.

280. One could argue, of course, that because of their attitu des draft evaders and deserters would have made terrible soldiers and would have caused even greater risks at 

the battlefront.

281. It is unclear, however, to what extent an amnesty would cause a decline in morale 

and discipline, since morale and discipline are already at an extremely low ebb, largely 

because of anti-war sentim ent within and withou t the armed services. See N. Y. Time s, 

Sept. 5, 1971, at 1, col. 1; Oct. 26, 1970, at 1, col. 3; June 21, 1970, at 1, col. 5. The 

morale problem manifests itself not only in in-service anti-w ar sentiment {see note 285 

infra) , but in the high rate of desertion {see note 6 supr a), the low rate of re-enlistments 

{see N. Y. Times, Dec. 11, 1970, at 93, col. 6), and the growing problem of drug addiction {see N. Y. Times, May 17, 1971, at 1, col. 1). As early as 1967, one man in 32 

was absent withou t leave from the armed services at some time durin g the year. Testimony of A. Fitt, Ass’t Sec. of Defense, Hearings Before a Subcom m. on the Treatment

of Deserters from the Military of the Senate Com m, on Ar me d Services, 90th Cong., 

2nd Sess. 3 (19 68).

Given the tremendous amount of anti-war sentiment in the United States, and the fact 

tha t the President himself is tryin g to cut back our involvement in Indochina by pulling 

out troops {see note 285 infra) , it is already clear to some servicemen in Indo chin a that 

they arc being asked to endange r their lives for very little; there is little more harm 

tha t an amnesty could do to the morale of these servicemen. However, it cannot be denied tha t a significant num ber of servicemen do feel or wou ld like to feel that they are 

making a positive contribution to a worthwhile cause; the morale of these men might 

well suffer if an amnesty were granted.
122

draftees would consider it ine quitable to be re quired to serve in the arm ­

ed forces when persons who had previously refused to serve had 

eventually been excused.282 Fina lly, with respect to pardons or amnesty 

for deserters, objection might be raised to interference by Congress or 

by the Pres iden t with military justice,283 particularly after the recent 

controversy over the Pres ident’s alleged intrusio n into the Calley case.284

Policy considerations in favor of pardons or amnesty include, first, 

the desirability of bringing back to this coun try thousands of exiles 

whose presence abroad is a rem inder to American s and to the rest of 

the world tha t this country pursued in Indoch ina a course of conduct 

unacceptable to many of its young citizens. Second, the repudia tion of 

the war by mah y American political and social leaders285 has served to

282. It is interestin g to note tha t President Trum an’s Amnesty Board never found this 

consideration to be compelling. Interview, July 27, 1971. Of course, the Board pardoned 

only 1523 offenders out of 15,805, and all of these 1523 had been convicted and had 

presumably served part or all of their sentence.

Th e difficulty of operating a milita ry draft would be alleviated by making an amnesty 

conditional on subm itting to induction into the armed services. (See pp. 126-27 supra).

An all-volunteer army would also eliminate draft problems. President Nix on has set a 

goal of a volunteer army by 1973. See President Nixon’s Message to Congress, Jan. 28, 

1971, N. Y. Times, Jan. 29, 1971, at 1, col. 4.

In addition, it is arguable tha t most of those who refused to serve in Indochina for 

moral reasons would not refuse to serve in wars of less questionable justification, or in 

which the security of the nation was directly at stake.

283. Th e military establishment would, of course, have no legal cause for objecting, 

since the pardoning power of the President extends to offenses und er the jurisdiction of 

the courts-martial, even apart from the President’s powers as Com mander-in-Chief. See

Chapman, Presidential Pardons, 1957 J.A.G. J. 7 (May, 1957). Likewise, since the Uniform Code of Military Justice, which contains the provisions of law relating to the offense 

of desertion, was enacted by Congress, the congressional pardon power extends to offenses 

under the U.C.M.J. for the same reasons as it extends to offenses under other congressional enactm ents. See pp. 118-20 supra.

284. Th e President perm itted Lt. Calley to remain in his apartme nt, contrary to the 

order of the court-martial which sentenced him to the stockade (see N. Y. Times, April 

2, 1971, at 1, col. 8), and promised to "review’’ Lt. Calley’s case a fter it had gone thro ugh 

the appeals process (see N. Y. Times, Apr. 4, 1971, at 1, col. 8).

285. Congressmen and Senators have spoken out against the wa r on countless occasions 

(see, e.g., N. Y. Times, Apr. 23, 1971, at 6, col. 4) and have introduced a num ber of 

bills and resolutions accordingly. See, e.g., Vietnam Disengagement Act of 1971, S. 376, 

92nd Cong., 1st Sess. (19 71); S.J. Res. 89, 92nd Cong., 1st Sess. (1971); H.R. Con. 

Res. 39, 92nd Cong., 1st Sess. (19 71); H.R. Res. 54, 92nd Cong., 1st Sess. (1971). The 

President himself is pursuin g a policy of troop with draw al from Indochina. See, e.g.,

N. Y. Times, Nov. 13, 1971, at 1, col. 8; Nov. 14, 1971 § IV, at 1, col. 4.

Within the armed services anti-war feeling has manifested itself in demonstrations, 

und erground newspapers, and political meetings in coffeehouses. See generally, N. Y. 

Time s, Sept. 2, 1969, at 1, col. 8; May 18, 1969, § VI, at 25; Apr. 6, 1969, at 2, col. 3. 

Even officers’ groups have been formed to speak out against the war. See, e.g., N. Y. 

Times, Oct. 23, 1970, at 22, col. 5; Sept. 27, 1970, at 19, col. 1. In 1969 the Army was 

forced to issue a memo, Guidance on Dissent, instructing commandin g officers to impose 

only such min imu m requirements as were necessary to enable the Arm y to perform its 

mission. N. Y. Times, Sept. 12, 1969, at 1, col. 8. In addition, more and more servicemen are seeking discharges or assignment to non-combat duties (see N. Y. Times, Mar. 

22, 1971, at 25, col. 1), an option opened up by Departm ent of Defense Directive 1300.6
123

accentuate the moral dilemma, more so Jian in past conflicts, of whether 

or not to serve in the armed forces; arguably deserters and draft evaders 

who acted in response to this dilemma are not the type of law breakers 

whom this country should seek to punish.286 Third, a failure to grant 

pardons or amnesty might be considered inconsistent with the traditions 

of this country. Not only are there numerous precedents for amnesty 

in U nited States history, but the historic role of this nation is that of a 

free land to which exiles from other lands have frequently turned; it 

would be ironic for such a nation to bar its exiles from returning to a 

free and productive life within the United States. A fourth consideration would involve the diplomatic advantages which might inhere in 

an amnesty, since countries such as Canada and Sweden, to the extent 

that they are burdened by the presence of American exiles, would presumably welcome an amnesty. Finally, there are at present certain 

administrative policies in dealing with deserters and draft evaders287

(19 62). See Cusick, In-Service Conscientious Objection: Problems of the Grow ing Privilege, 1970 J.A.G. J. 35 (Sept., 1970 ); N. Y. Time s, May 2, 1971, at 14, col. 1; Apr. 13, 

1971, at 16, col. 5; Mar. 31, 1971, at 18, col. 8; Aug. 30, 1970, at 35, col. 1.

A num ber of veterans of the conflict i n Indochina have opposed the war. For example, 

the Vietnam Veterans Against the War received a great deal of publicity due to their 

“war crimes hearings” in Detroit (see The New Republic, Feb. 27, 1971, at 16), their 

demonstrations in Wash ington (see N. Y. Times, Apr. 25, 1971, § IV, at 1, col. 1), and 

their testimony before the Senate Foreign Relations Committee (see N. Y. Time s, Apr. 

13, 1971, at 1, col. 5; Barry, Why Veterans March Against the War, N. Y. Times, Apr. 

23, 1971, at 31, col. 5).

286. Professor L. Boudin has reasoned tha t if we cannot, for practical reasons, hold 

the leaders of this nation responsible for the war crimes (i.e., violations of international 

law) perpetrated in Indochina, then we should not hold deserters and dra ft evaders 

liable for their violations of our domestic laws. Statement of Leonard B. Boudin, Esq., 

Public Forum on “Th e Legal Responsibility of the Individual,” sponsored by the American Society of International Law, Oct. 7, 1971, Washington, D. C.

One class of draft evaders abroad is especially deserv ing of some form of amnesty. This 

class consists of evaders who, prior to summer, 1970, refused to serve in the armed forces 

because of their objection to war in any form , but whose objection to war did not stem 

from traditional religious beliefs. In Welsh v. United States, 398 U.S. 333 (1970) , the 

Supreme Court virtually eliminated the requiremen t tha t conscientious objection to war 

be based on religious training and beliefs. The Court ruled tha t moral and ethical beliefs, if held "with the strength of tradition al religious conviction,” could be the basis of 

the opposition to war. Id. at 339-40. See Note, Conscientious Objectors: Recent Developments and a Ne w Appraisal, 70 Colum . L. Rev. 1426 (1970). If persons whose opposition to war stems from non-religious beliefs can now be classified as conscientious objectors (C.O .’s) and avoid military service, then persons with the same beliefs who were 

denied C.O. status before Welsh ought to be given first priority with respect to pardons 

or amnesty. Of course, whether or not these factors can be taken into account depends 

on whe ther amnesty is gran ted or a pardon board is created. It would probably be administratively infeasible for an amnesty to take moral beliefs into account. See p. 126 

supra; but cf. Congressman Koch’s recent bills, notes 165 8t 167 supra (any person in 

military service, in jail, or in exile could return to full civilian status and seek exemption 

from military service as selective conscientious objectors).

287. For example, many deserters currently receive dishonorable administrative discharges. See p. 109 & note 133 supra. Although certain stigmas do attach to such a
124

which closely resemble partial or conditional amnesty, except for the 

hap haz ard way in which they are administered; an official amnesty (or 

pard on board) could at least apply more uniform standard s to these 

offenders.

In weighing the considerations for and against pardons or amnesty, 

Congress or the Presiden t must also keep in mind the large num ber of 

options available to them for dealing with dra ft evaders and deserters. 

Th e appropriateness and the political acceptability of pardons or amnesty would depend largely on their scope, the conditions attached to 

them, and the time whe n they were gran ted. In this regard, the most 

politically and administratively feasible course of action, once a decision 

had been made in favor of some form of pardons or amnesty, would be 

to gran t amnesty to all dra ft evaders on the condition that they subm it 

to induction into the armed services or perform two years of alternative 

service, and to all deserters on the condition that they complete their 

tours of duty, plus a period of time equa l to their u nau thorized absence, 

in combat or non-c ombat military service.288 As for the timeliness of 

pardons or amnesty, it wou ld probably be most feasible politically to 

wait until American combat involvement in Indochin a had ended.289

Perhaps the simplest and least controversial course of action which 

could be taken by Congress or the President, absent strong popu lar 

pressure for an amnesty,290 would be to avoid the issue altogeth er and 

to keep it o ut of the public eye as much as possible. This appears to be 

the presidential policy to date.291 How ever, it is clear tha t serious consideration should be given immediately to the factors for and against

discharge, the discharged serviceman does not face a jail sentence, and therefore the 

administrative discharge acts as a partial pardon.

Likewise, many draft evaders are excused from prosecution or from serving sentences 

afte r conviction if they subm it to induction or to alternative service. See p. i n and 

note 148 supra. A draft evader benefitting from this trea tment is, in effect, receiving a 

conditional pardon.

288. See pp. 126-27 supra. It should be noted tha t conditions which may be thou ght 

desirable by the President or Congress may be unacceptable to deserters or draft evaders.

289. It is unlikely that many Americans would favor an amnesty while American 

servicemen were still dying in action in Indochina. However, it should not be necessary 

to wait any longer than the end of our combat involvement in Vietnam. Note that 

President Trum an created his Amnesty Board a year after the hostilities had ended. See

p. 123 supra. President Lincoln granted amnesty to deserters before the Civil War had 

even ended. See p. 122 supra. President Johnson’s first amnesty came within two 

mon ths of the end of the Civil War. See id.

290. Although much has been written on deserters and draft evaders abroad (see

note 4 supra), and although more and more arguments concerning amnesty have been 

raised (see note 158 supra), the problems of draft evaders and deserters do not appear 

to be, and may never be, so immediate to the American electorate as to result in 

substantial political pressure for an amnesty.

291. See p. 88 supra.
125

pardons or amnesty and to the many options open to the President and 

Congress for dealing with deserters and draft evaders.292

E. Conclusion

The Constitution gives the President the power “to grant reprieves and 

pardons for offenses against the United States.” This clause has been 

broadly interpreted by the courts to allow the President to grant full, 

partial or conditional pardons or amnesties for every federal offense, 

except in cases of impeachment.

Congress appears to have the same authority as the President, although its pardoning power is less certain because it has been exercised 

infrequently and tested little by the courts.

A number of options are open as to the type of amnesty or pardons 

which Congress or the President could gran t to deserters and draft 

evaders. Amnesty might be granted to entire classes of offenders, or 

pardon boards might be created to consider cases individually. Pardons 

or amnesty could operate to remove any part of the punishm ent applicable to an offense, or they could remit the punishment altogether. Any 

condition can be attached to a pardon or amnesty, as long as it is lawful 

and possible to fulfill.

Presidents have in the past granted pardons or amnesty to deserters, 

draft evaders, and even persons guilty of treason. Whether or not similar pardons or amnesty will be granted in the near future depends 

ultimately on a political judgment, one which Congress or the President 

will soon have to make. At the very least, studies should be undertaken 

immediately to determine when and if an amnesty or a large number of 

pardons would be advisable and what form the amnesty or pardons 

should take. [D.L.R.]

292. Mr. James F. O’Neill, member of President Trum an ’s Amnesty Board, has stated 

tha t he “would be hopeful tha t the Government would initiate something now so tha t 

a fair evaluation mig ht be made of the situation, to take it out of the emotional area as 

much as possible. If this does not happen, some great injustices will be done.” Interview , July 27, 1971. See also Senator George McGovern’s campaign promise of amnesty, 

and various bills intro duced in the House and Senate, p. 113 supra.
1 2 6

C o n gressi o n al A m nest y f or W ar Resisters: 

P olic y C o n si de r ati o ns a n d C o ns tit uti o n al 

Pr o ble m s

L o uis L usky *

I. In t r o d u c ti o n

A s t h e w ar i n S o ut h e a st A si a gri n d s j e r kil y t o w ar d a h alt,’ w e m u st 

t ur n t o t h e t a s k of bi n di n g o ur i nt er n al w o u n d s. O n e of t h e k n otti e st 

pr o bl e m s w e c o nfr o nt i s w h et h er a m n e st y s h o ul d b e gr a nt e d t o t h o s e 

w h o h a v e r e si st e d t h e w ar, or e v a d e d p arti ci p ati o n i n it, b y ill e g al 

m e an s. P u bli c d e b at e o n a m n e st y f or t h o s e w h o ill e g all y h a v e o p p o se d 

A m eri c a n p arti ci p ati o n i n t h e w ar h a s alr e a d y st art e d. T h e f or m ul ati o n 

of p o siti o n s b e g an m or e t h a n a y e ar a g o w h e n t h e A m eri c a n Ci vil 

Li b erti e s U ni o n r e c o m m e n d e d br o a d a m n e st y f or d r aft vi ol at or s, e xil e s, 

a n d milit ar y off e n d er s.

* 1 23

 A n u m b er of bill s ar e i n t h e c o n gr e s si o n al 

h o p p er; t h e br o a d e st — a n d, nt t hi s writi n g, t h e m o st r e c e nt —i s H. R.

• Pr of e s s or of L r w , C ol u m bi a U ni v er sit y S c h o ol of L a w ; A. B 1 9 3 5, U ni v er sit y of L o ui s vill e; 

L L. B. 1 9 3 7. C ol u m bi a U ni v er sit y. T hi s arti cl e c o n s oli d at e s a n d e x p a n d s 2 r e c e nt n e w s p a p er articl es b y Pr of e s s or l. u s k y: zt m nr s/ v W' A nr S o rt Will Hi nt! o ur W o u n d s ?, W a s hi n gt o n P o st, J a n. 9, 

1 9 7 2. ( O utl o o k) at 3. c ol. I; a n d A m n e st y f o r W h o m, a n d H o w M u c h ?, Tilt; N a t O h si n vi n, 

M ar. 1 1. 1 9 7 2, nt I B, c ol. I. P er mi s si o n of T h e W a s hi n gt o n P o st C o. a n d D o w J o n e s A C o., I n c., 

ns c o p yri g ht o w n er s of t h e r e s p e cti v e arti cl e s ( 1 5 1 9 7 2) t o r e pri nt s u b st a nti al p orti o n s of t h o se 

arti cl e s i s gr at ef ull y a c k n o wl e d g e d, n s i s t h e r e s e ar c h a s si st a n c e of J o h n It . R o e, Jr., a n d Fr a n kli n 

M. T at u m of t h e V a n d er bilt S c h o ol of L a w.

1. T h e wi n di n g d o w n of t h e I n d o c hi n a w ar h a s n ot pr o c e e d e d s m o o t hl y. T o s o m e p er s o n s, 

i n f a ct, t h e wi n di n g d o w n pr o ce s s m a y s e e m ill u s or y b e c a u s e i n r e c e nt m o nt h s b o m bi n g h a s b e e n 

i nt e n sifi e d ns gr o u n d tr o o p s ar c r e m o v e d fr o m S o ut h e a st A si n. M o r e o v er, o n M a r c h 2 3, 1 9 7 2, 

Pr e si d e nt Ri c h ar d M. Ni x o n s u s pe n d e d t h e P nri s p e a ce t al k s a n d r ci n stit ul e d t h e m o n A p ril 2 7, 

1 9 7 2. o nl y t o s u s p e n d t h e m a g ai n. N . Y . Ti m e s, M ar. 2 4, 1 9 7 2, at I, c ol. I; N. Y . Ti m e s, A p r. 2 R, 

1 9 72. at I. c ol. R; N. Y . Ti m e s, M a y 5. 1 9 7 2, nt I. c ol. R. It s h o ul d b e n ot e d, h o w e v er, t h at t h e se 

m e a s ur e s ar c n ot n e c e s s aril y i n c o n si st e nt wit h di s e n g a g e m e nt, e s p e ci all y si n ce t h e i m p er ati v e s of 

d o m e sti c p oliti c s n p p e ar t o d e m n n d t h at t h e w ar b e t er mi n at e d or r e d u c e d t o mi ni m al pr o p orti o n s 

b ef or e t h e N o v e m b er 7 el e cti o n

2. R e s ol uti o n of t h e A m e ri c a n Ci vil Li b erti e s U ni o n. J a n I R, 1 9 7 1, N e w Y or k, N e w Y o r k; 

S o b ol. A m n e s t y L e gi sl at or s: F. v a dl n g t h e I s s u e, Vill a g e V oi c e, F e b. 2 4, 1 9 7 2, at I, c ol. I.

3. F.. g . H R. 1 4 1 7 5, 9 2 d C o n g., 2 d S e s s. ( 1 9 7 2) (i ntr o d u c e d b y C o n gr e s s w o m n n A b z u g. 

pr o vi di n g f or a g e n er al, u n c o n diti o n al a m n e st y f or p er s o n s w h o h a v e c o m mitt e d s p e cifi e d vi ol ati o n s of f e d er al l a w a n d e st a bli s hi n g a c o m mi s si o n t o c o n si d er gr a nti n g a m n e st y t o p er s o n s w h o 

h a ve vi ol at e d st at e or f e d er al l a w w hil e pr ot e sti n g t h e w a r i n S o ut h e a st A si n); II . R . I 2 R 2 2. 9 2 d 

C o n g.. 2 d S e ss. ( 1 9 7 2 ) (i ntr o d u c e d b y C o n gr e s s m a n F d w n r d K o c h, pr o vi di n g a m n e st y t o sl at e a n d 

f e d er al off e n d er s at ti m e s a n d u n d er c o n diti o n s e st a bli s h e d b y t h e Pr e si d e nt); H R. 1 2 4 1 7, 9 2 d 

C o n g., 2 d S es s. ( 1 9 7 2) (i ntr o d u c e d b y C o n gr e s s m a n E d w ar d K o c h, pr o vi di n g a m n e st y t o p er s o n s
127

14175, introduced by Congresswoman Bella S. Abzug on March 29, 

1972?

The protean term "amnesty” is not mentioned in the Co nstitution, 

but it has been used elsewhere in many different senses: clemency for 

convicted criminals, clemency for offenders not yet apprehended or 

prosecuted, and imm unity from punishment for acts not yet committed 

that ord ina rily would be criminal? The term has been employed whether 

the offenders were listed by name or specified by general classification, 

and it has sometimes been used as a synonym for the constitutional term 

"pardon.” * On occasion the substance of amnesty has been granted 

withou t use of the term at all? In this article, the term “ amnesty” is

who hnvc refused or evnded service in the armed forces if such persons serve 2 years in specified 

public service organizations); S. 3011, 92d Cong., 1st Scss. (1971) (introduced by Senator Ta ft, 

providing amnesty to persons who have refused or evnded service in the armed forces if such 

persons serve 3 years in specified public service organizations); H R 5690, 92d Cong.. 1st Scss. 

(1971) (introduced by Congressman Edward Koch, defining conscientious objector to include a 

person who objects to a particular war).

4. The Abzug bill provides for a general unconditional amnesty on the cessation of hostilities, 

but no Inter than July I. 1972. to be granted automatically to anyone who has refused or evaded 

induction under the draft laws, to anyone who nbsented himself from the armed forces, and to 

violators of associated statutes, when such violations occurred or will occur during the war years. 

.Vre. eg . Military Selective Service Act $ 12. 50 U.S.C. 462 (1970); Uniform Code of Military 

Justice. 10 U.S.C. « RR2. RRS-RR (1970); Act of June 25, I94R, IR U.S.C. $ I3KI (1970); Act of 

June 25. I94R. IR U.S.C. 5 23R7 (1970). In addition, H R . 14175 proposes the establishment o f an 

Amnesty Commission appointed by the Congress and the President to grant amnesty to violators 

of any other federal, state. Or local law when the Commission finds that the violation was motivated 

substantially by opposition Hr the war and that it did not result in significant property damage or 

personal injury. The bill givej the Commission leeway further to grant amnesty when it finds that 

although the violation did result in damage it was nevertheless justifiable on the basis of a deeply 

held ethical or moral belief. H R. 14175. 92d Cong., 2d Scss. (1972).

5. Amnesty has been defined as “an act of the legal sovereign conceding, from grace, a 

voluntary extinction from memory of certain crimes com mitted against the state.” I 

Encycio eaedia of tm» Socia l Scie nc es 3 6(1 937). Amnesty, according to that authority, usually 

is granted to political offenders, often before trial or punishment. Amnesties may be said to be 

"first, general or particular, that is. they may,cover all classes of political offenders or may be 

limited to special groups, with specific exceptions; and second, absolute or conditional, that is. they 

may impose no conditions or they may demand the performance of certain conditions before their 

provisions enter into legal effect." Id at 36-39. See Duscha. Amnesty’ , Satu rday Rev. 51 ( M ay

6. 1972). Sec also Comment. American Deserters and Draft Evaders: Exile, Punishment or Am ­

nesty’. 13 H am v. I n t l L.J. R8 (1972).

6. Brown v. Walker. 161 U S. 591.601 (IR96). "The distinction between amnesty and pardon 

is of no practical importance . . . . 'The Constitution does not use the word "amnesty." and. 

except that the term is generally applied where pardon is extended to whole classes or communities, 

instead of individuals, the distinction between them is one rather of philologicnl interest than of 

legal importa nce .*" Id

1. I'or example, near the end of the Second World Wnr, Secretary of Wa r Patterson created 

a top-level Wnr Department Clemency Board to eliminate excessive sentences that had been 

adjudged under the stress of combat. Royall, Revision o f the Mili tary Justice Process As Proposed 

by the War Department. 33 Va. L. Rev. 269. 279(1947 ). At the same time. art. 50 V) o f the Articles
1 2 8

u s e d i n it s br o a d e st s e ns e: t h e s oft e ni n g of p u ni s h m e nt f or a l ar g e n u mb er of off e n d er s, f or r e a so n s of p u bli c p oli c y.

Fr o m o ur e arli e st d a y s g o v er n m e nt h a s gr a nt e d a m n e st y aft er di visi v e c o nfli ct s at h o m e or a br o a d. Fr o m t h e S h a y s* a n d W hi s k e y* R e b elli o n s i n t h e ei g ht e e nt h c e nt ur y, t hr o u g h t h e Ci vil W a r,'* d o w n t hr o u g h

of W n r of t h e 1 9 2 0 C o d e, pr o vi di n g a u t o m ati c. hi g h-l e v el r e vi e w i n c e rt ai n t y p e* of c a s e s, w a s 

a cti v a t e d. I d at 2 R 0; .t rr A c t o f J u n e 4. 1 9 2 0. e h. 2 2 7, § 1, 4 1 Sl a t. 7 9 7 (r e p e al e d a n d r e pl a c e d b y 

t h e U C M J i n I 9 4 R).

R I n J u n e 1 7 R 7, t h e M a s s a c h u s ett s G e n e r al C o u rt r e p e al e d t h e Di s q u alif yi n g A ct. w hi c h h a d 

i m p o s e d c er t ai n ci vil ui s n hilitit e s o n t h e r e b el s, a n d ( e x c e pt f or 9 r e b el l e n d er s) p r o cl ai m e d u n c o n diti o n al p ar d o n f o r nil w h o w o ul d t a k e a n o at h o f all e gi a n c e b y S e pt e m b er 1 5. I 7 R 7. R. T a y l o r . 

s h r n M a s s a c h u s e t t s i n t iii R f v o i u ti o n 1 6 5 ( 1 9 5 4). E v e n t u all y e v e n D a ni el S h a y s r e c ei v e d 

a f o r m al p ar d o n. H a m p s hi r e G a z e tt e. S e pt. I 9 v I 7 R 7.

9 B y p ar d o ni n g p a rti ci p a nt s i n t h e 1 7 9 5 W hi s k e y R e b elli o n, Pr e si d e n t W a s hi n g t o n s et a 

pr e c e d e nt f or a s u c c e s si o n o f pr e si d e nti al a m n e s ti e s. O n J ul y 1 0. 1 7 9 5, W a s hi n g t o n pr o cl ai m e d 

“ A f ull, fr e e a n d e ntir e p ar d o n t o all p er s o n s . . . o f nil tr e a s o n s. . . a n d ot h er i n di ct a bl e off e n s e s 

a g ai n st t h e U nit e d Sl a t e s c o m mitt e d wit hi n t h e f o u rt h s ur v e y of P e n n s yl v a ni a b ef o r e t h e s ai d 2 2 n d 

d a y o f A u g u st l a st p a st . . . . ” I C o m p i l a ti o n o p tii f . M f s s a g f s a n o Pa p p u s o f t ii f Pri si - 

d i n t s 1 7 3 ( J. Ri c h ar d s o n c d. I R 9 7 ) ( h er ei n aft er cit e d a s J. Ri c h ar d s o n]. E x c e pti o n s w er e m a d e of 

t h o s e w h o “ r ef u s e d or n e gl e ct e d t o gi v e a s s ur n n e e o f s u b mi s si o n t o l a w s o f t h e U ni t e d Sl at e s; 

vi ol at e d s u c h a s s ur a n c e s nft e r t h e y w er e gi v e n; or will f ull y o b st r u ct e d or att e m pt e d t o o b str u ct t h e 

e x e c uti o n o f t h e a ct s f or r ai si n g a R e v e n u e o n di s till e d s pi rit s a n d still s, or b y ai di n g or a b etti n g 

t h e r ei n . . . .' "I d . I n hi s e x pl a n ati o n t o C o n g r e s s, t h e Pr e si d e nt s ai d: “ | M | y p er s o n al f e eli n g i s t o 

mi n gl e i n t h e o p er a ti o n s o f t h e G o v e r n m e nt e v er y d e gr e e of m o d e r ati o n a n d t e n d er n e s s w hi c h t h e 

n a ti o n al j u s ti c e, di g nit y a n d s af et y m a y p e r m it. " S w o m b y, A m n e s lf: T h e R e c o r d a n d t h e N e e d. 

a t . C a t ii o i i c R f p . 2 ( J a n. I, 1 9 6 9).

Ot h er a m n e sti e s w er e gr n n t e d b ef or e t h e Ci vil W a r. I n 1 7 9 9 a b a n d o f o v er 1 0 0 P e n n s yl v a nia n s, r e b elli n g a g ai n st t h e l a w s f or t h e v al u a ti o n o f l a n d s a n d d w elli n g s, fr e e d t h e pri s o n er s o f a 

U nit e d St at e s m a r s h al a n d pr e v e n t e d hi m fr o m c arr yi n g o ut hi s d u ti e s. O n M a y 2 1, I R 0 0, Pr e si d e nt 

A d a m s gr a nt e d a f ull. fr e e, a n d a b s ol ut e p ar d o n t o all t h e s e p er s o n s. J. Ri c h a r d s o n, s u p r a at 2 7 6- 

7 7.

B y t h e Pr o cl a m ati o n o f O c t o b e r 1 5, I R 0 7, Pr e si d e nt J eff er s o n gr a nt e d a f ull p ar d o n t o all 

d e s ert e r s fr o m t h e A r m y of t h e U ni t e d St at e s w h o w o ul d s ur r e n d er t h e m s el v e s wi t hi n a p eri o d of 

4 m o nt h s. I d. at 4 1 3. D u ri n g t h e W a r o f I R 1 2. pr o cl a m a ti o n s off e ri n g “ a f ull p a r d o n " t o d e s ert e r s 

w h o s urr e n d e r e d wit hi n 4 m o n t h s w er e i s s u e d b y Pr e si d e n t M a di s o n o n F e br u a r y 7, I R 1 2. O c t o b er 

8. 1 8 1 2. a n d J u n e 1 7. , 8 1 4 . N o e x c e pti o n s w er e li st e d. I d. at 4 9 7. 4 9 9, 5 2 8. Pr e si d e nt M a di s o n 

al s o pr o cl ai m e d a n a m n e st y f or t h e pir a t e s a n d s m u g gl er s i n t h e vi ci ni t y o f N e w Orl e a n s w h o h a d 

h el p e d fi g ht t h e Briti s h. 1 0 D i c ti o n a r y o f A m e ri c a n Bi o g w a pii y 5 4 0 ( 1 9 3 3 ).

T h e l a st of t h e pr e- Ci vil W a r a m n e sti e s c a m e i n I R 3 0 w h e n Pr e si d e nt J a c k s o n a p p r o v e d a W a r 

D e p a rt m e n t G e n e r al O r d er t h a t e xt e n d e d a fr e e a n d f ull p a r d o n t o d e s ert e r s, s u bj e ct t o t h e f oll o wi n g pr o vi si o n s: t h o s e i n c o n fi n e m e nt w er e t o b e r el e a s e d a n d r et ur n e d t o d u t y; t h o s e nt l ar g e a n d 

u n d e r s e nt e n c e o f d e at h w er e t o b e di s c h ar g e d a n d n e v e r a g ai n e nli st e d i n t h e s er vi c e of t h e c o u ntr y. 

J. Ri c h a r d s o n, s u p r a at 1 0 6 2- 6 3.

1 0. D uri n g t h e Ci vil W n r Pr e si d e nt Li n c ol n gr a nt e d s e v e r al a m n e sti e s. B y pr e si d e nti al pr ocl a m a ti o n o n M ar c h 1 0. I R 6 3. d e s ert er s fr o m t h e U ni o n A r m y w h o r e p ort e d o n or b ef o r e A p ril I, 

I R 6 3. w er e r e st o r e d t o t h eir r e gi m e nt s wit h o ut p u ni s h m e nt e x c e pt f or f o rf eit u r e o f p a y a n d all o wa n c e s d uri n g t h eir a b s e n c e. Pr o cl a m ati o n of M a r. 1 0. I R 6 3, 1 3 Sl a t. 7 7 5. O n D e c e m b er 8, I R 6 3, a 

g e n er al a m n e st y w a s e xt e n d e d t o r e b el s If t h e y l o o k a n o at h of l o y alt y t o t h e U ni t e d St at e s. T h e 

p ar d o n i n cl u d e d f ull r e s t or ati o n of pr o p ert y ri g ht s e x c e pt pr o p ert y ri g h t s i n sl a v e s a n d w h e n ri g ht s 

of t hir d p arti e s h a d i nt e r v e n e d. Pr o cl a m ati o n o f D e c. 8, I R 6 3, 1 3 Sl a t. 7 3 7. Offi c er s of t h e C o n f e der at e G o v e r n m e n t, c e rt ai n ot h er cl a s s e s of r e b el s, a n d f o r m er offi c e r s o f t h e U ni t e d St at e s w h o
129

World War I" and W orld War II,” the ending of hostilities usually has 

been followed by amnesty in one form or another. President Nixon, in 

a January 2, 1972, television interview, said—though with a later qualifica tion” —that “ we always, under our system, provide amnesty. You 

remember Abraham Lincoln in the last year— the last days, as a matter 

of fact—of the C ivil War, just before his death, decided to give amnesty 

to anyone who had deserted, i f he would come back and rejoin his unit 

and serve out his period o f time.” President Nixon added that he “ would 

be very liberal with regard to amnesty.’’ ”

joined the rebellion were excepted. On Mnrch 26. IR64, Lincoln found it necessary to issue an 

Additional proclamation defining the cases in which insurgent enemies were entitled to the benefits 

of the Proclamation of December R, IR63. Proclam ation of M ar. 26. IR64, 13 Slat. 741. Finally , 

on December 25. IR6R, President Andrew Johnson granted a full, unconditional pardon and am ­

nesty to “ all persons engaged in the late rebellion." Proclamation of Dec. 25, IR6R, 15 Stal. 711. 

President Johnson's unqualified amnesty followed a series of limited, conditional amnesties. See 

fen erallv 5 J. Richardson, supra note 9. at 3906,

11. Tw o presidential proclamations were issued regarding the grant of nmnesty 'ollowing 

Wo rld War I. The first, issued by President Coolidge on Ma rch 5. 1924. granted nmnesty to those 

persons convicted of desertion in time o f war who had deserted between the signing of the Armistice 

in November 19 1R. and the formal termination of the wnr by actions of the President and Congress 

in November ,921. Proclamation of Mar. 5. 1924, 43 Stat. 1940. The second proclam ation was 

issues, hy President Franklin D. Roosevelt on December 23, 1933, and covered persons convicted 

of various wnrtime crimes who had complied with the sentence Imposed on them. Proclamation 

of Dec 23. 1933. 4R Sla t. 17,25.

12. President Trum an on December 23, 1946, created a 3-man President's Amnesty Board 

to decide on n case-by-case basis whether nmnesty should be granted to persons accused of violating 

the Selective Tra ining nnd Service Act of 1940, eh. 720, 54 Stat. R85 (1940). Proclam ation of Dee. 

23, 1947. 62 Stat. 1441. Out of I5.RO5 cases reviewed, clemency was granted in 1,523 pursuant to 

recommendations by the Roard; President Trum an hnd already pnrdoncd nnother I.5I R. making 

a total of 3.041. Knig ht. The Amnesty Question fo r Dr aft Evaders: Ar e They A ll the Same?, T llE 

A m m a n Legio n M ag .. zin e 4 (M ay, 1972). Following the Korean W ar there was no general 

amnesty, hut some administrative leniency was demonstrated. No rth Korea held 4.42R American 

soldiers as prisoners of war. many of whom allegedly had collaborated with the enemy. By September 6. 1953. all of the PO W's who desired to return were repatriated, and the nrmy released its 

official policy on prosecuting those soldiers who had collaborated with the enemy The Department 

of the Army staled that it would prosecute only when there appeared to be the most compelling 

and convincing evidence that the accused was guilty of a serious offense, nnd that no returned 

prisoner eligible for discharge should he retained for the purpose of trial in the absence of that 

kind of evidence. Prugh, Justice for all Recap-K's, T he A nm y C omrat For ce s J., 15, 16 (Nov . 

1955). See also Note. Misconduct In the Prison Cam p A Survey o f the I.a w and an Analysis of 

the Korean Cases. 56 Cot.UM. L. Rev. 709 (1956) ,n 1959, the remaining 210 prosecutions were 

dropped. E. K in k e a d, I n EveitY W as But O ne 75 (1959).

13. See note 30 Infra

14. N .Y . Times, Jan. 3, 1972, at 20, col. 8. The Ame rican Legion's position is that amnesty 

should be granted, after the conflict ends, on a case-hy-case basis as was done after World War 

II , see note 12 supra, but not on a blanket basis. Knight, supra note 12, at 37.
130

II. olicy Considerations

It seems fair to say that the question is not whether there is to he 

amnesty or no amnesty. Rath er, the questions arc: to whom should 

amnesty be granted, and how much, and when, and how? Nevertheless, 

to start at the heart of the matter, let us consider a question that is asked 

whenever amnesty for war rcsisters is debated: “ Wh y should we forgive 

these tra itors and cowards, pardon their c rimes, and welcome them back 

from Can ada and Sweden? “ The re are m yriad variatio ns on th is theme; 

sometimes the b luntncss is softened, sometimes the rightness or wron gness o f the war is acknowledged to be relevant, and sometimes dist inctions arc recognized between those who have fled and those who have 

submitted to punishmertt. But the core of the question is constan t. It 

always starts wllh “ why,” and it always is premised on the follow ing 

assumptions:

(1) That those who have broken the law to show their opposition 

to the war in Southeast Asia arc “ traitors ” — meaning “ dis loy al” rather 

thnn actu ally guilty of treason ns defined by articl e H I, section 3 of the 

'United Stat es'C ons titu tion .

(2) Th at those who have broken or evaded the law in order to 

avoid service in the war are also cowards.

(3) Th at the soc iety can well do with out these people if they 

choose to leave or stay away, and can afford to relegate them to the 

status of fugitives, convicts, or ex-convicts if they elect to return or 

remain.

(4) That the only real problem is how to be fair to these law 

violat ors and their families, and that the rema ining 200,000,000 or so 

of us have nothing to worry about except the general ethical responsib ility to let the punishment fit the crime.

(5) Th at there is no longer any bond of common citizensh ip between the law violator s and the great law-abiding maj ority who have 

made the laws and have at least acquiesced in the w ar.

Believing that each of these assump tions is fallacio us, I shall try 

to show that the domin ant concern for amnesty is a concern for the 

welfare of society as a whole, and that preoccupation with the problem 

of fairness to the viola tors involves a sad distr actio n from the main 

point. I shall mention also a few undisputed facts which , in m y opinio n, 

cast serious doubt upon the accur acy of the first three of the five listed 

assumptions— facts which suggest that amnesty may be called for even 

if we disregard the needs of the larger societ y and seek nothin g but 

fairness to the law viola tors. In the c oncluding section of the artic le, 1 

shall very briefly describe the legal tools that are availab le to do what-
13

ever the American people ultimately say they want done—as they may 

say at the polls this November.

First let us examine the root question, the starting point for appraisal of any proposal for public action: whose ox is being gored? The 

fourth and fifth of the five propositions both say, in different ways, that 

fairness to the lawbreakers is our only concern. Although it is by no 

means unimporta nt, I submit that it should not be even our prim ary 

concern. Rather, our prim ary concern should be to thrust this long and 

divisive war into history as completely and rapidly as we can, to let time 

gel on with its healing, to cleanse our society of a continuing legal 

fallout whose half-life is measurable in decades, and—without denying 

ourselves the honor of mourning the dead, supporting the crippled, and 

com forting the bereaved—to turn our minds and hearts to the future.

Dirty and frig htful as the war experience has been, lessons can be 

learned from it that may help us deal with future challenges in a manner 

more humane, more effective, and less expensive. The war has demonstrated that a society such as ours, in which the people have the ultimate 

power of decision (however long it may take them to bring their power 

to bear through the electoral process),” will tear itse lf apart if led into 

a war whose necessity cannot be made clear to all or nearly all of the 

people. Moreover, the war has done much to liberate us from the fiction, 

so carefully nurtured by Senator Joseph McCarthy and his latter-day 

disciples, that communism is a unitary, monolithic phenomenon comparable to a killin g disease which we are honor bound to fight wherever 

we find it, and which we can effectively handle with the same remedies 

wherever and whenever it shows itself. The war also has helped to dispel 

the dangerous dogmas (a) that our nation— militarily encumbered, as 

it is, by its dependence on consent and its humanitarian ideals—can lick 

anyone we elect to fig ht, and (b) tha t a “ white” nation can lick a 

‘‘ nonwhite” nation in any fair and equal combat. Finally, the war has 

reminded us, as we have not been reminded since the Great Depression, 

that our liberties are too fragile to survive when any substantial minority 

loses confidence in the Government’s desire for justice; therefore, our 

society can remain open only if the ethical qualities of our Government's 

major undertakings command the support, or at least the acquiescence, 

of nearly everyone.

All these lessons, and others too, will serve us well when we grapple 

with the problems o f today and tomorrow, i f only we can allow ourselves 

to learn. But our ability to understand and profit from the dearly bought

15. See p. 554 Infra.
132

experience is, and will continue to be, gravely impaired so long as the 

legal debris of the war in S outh east Asia remains to dis tract us, so long 

as our eyes are blinded by the ashes of dead issues.

What is this legal debris? Let us suppose that tom orro w morning 

the fighting ends and all war prisoners are sent hom e.’* What, then, will 

our situation be? At tha t time we shall have term inated the war in its 

inte rnation al aspect only. On the domestic side, these quite substan tial 

vestiges will remain, and, barring amne sty, they will remain for years 

and decades to come:

(1) Tens of thousands of objectors to the war have broken the 

federal an d/or state criminal law and, if not already prosecuted, are 

subject to prosecution. Numerically, the largest groups are dra ft refusers or evaders, and participants in illegal dem ons trat ions. The grea t 

majority have engaged in no act tha t has involved or thre atened injury 

to any person, or substantial damage to, or theft of any property; but 

some few have committed assault, arson , burglary, and perh aps worse 

crimes.

(2) Some of these people have exiled themselves in Ca nada, Sweden, and other foreign coun tries. Others, who have not fled, either (a) 

have been convicted, or (b) are presently being prosecuted or serving 

prison sentences, or (c) are subject to prosecutio n.17 The last grou p is 

by far the largest. The war’s end may lead most prosecutors to ignore 

them in favor of more dangerous offenders. Even so, however, each of 

them , along with his spouse and close associates, will know tha t if 

anything is said, published, or done that awakens the p ros ecu tor's unf avorable attention, prosecution may ensue at any time before the applicable sta tute of limitations has run . * The violator, in effect, will be a 

pro bat ion er and as such he will have reason to keep his mou th shut on 

controversial issues. His one venture in political expre ssion—opposition

16. It is a good het that the war w ill in fact end. or pra ctically end. no more than a few 

weeks before the Novem ber election Prisoner repatria tion may take a wh ile long er, but it is most 

un likely to be long delayed, once the fighting ends. The alte rnative s to ending the war would seem 

to be ( I) a sudden movement in the direction of W orld W ar III or (2) ren uncia tion by President 

Nixon o f his chances fo r re-election.

17. See N ew sw eek . Jan. 17. 1972. at 19. col. I: Village Voice. Feb. 24. 1972. at I. col. 1.

18. E g . Ac t of Aug. 10. 1956. 10 U.S.C. § 843 (1970). provides tha t a person charged with 

desertion or absence witho ut leave in tim e of w ar may be tried and punished at any tim e withou t 

lim itation. A person charged with desertion in time of peace is not liable to be tried by courtm artial if the offense was committed more than 3 years before the receipt of sworn charges and 

specifications. In addition , any person who refuses o r evades reg istration or service in the armed 

forces in vio latio n o f 5j 3 of the Universal M ili ta ry Tr aining and Service Act. 50 U.S.C (A pp .) 

!j 453 (1970). is subject to a 5-year statute of lim ita tio ns Toussic v. Un ited States. 397 U S . 112 

(1970); Act of Sept. 1. 1954. 18 U S C § 3282 (1970)
133

to the w ar by illega l means— may prove to be his last.

(3) Al mos t with out exc eptio n, these violators believe— perhaps 

rightly , perhaps not— that they have served rather than harmed the 

United State s by revealing, through their law -bre akin g or self-e xile, the 

depth of their own conviction that the war has been wrong, thereby 

helping to speed the general realizatio n that the war must be ended. 

Millions of others share and cling passionately to this convi ctio n,11 and 

will go on pro claiming the injustice of continued punishment, prosecution, or de facto probation. Th us the d ivisive effect of the war will be 

prolonged, perhaps for decades.

(4) Th e rankle will persist long after prosecutions arc ended and 

sentences served. The stigm a of crimin al status— the plight of the excon vict — will still remain. Th is status carr ies with it vario us political 

and civ il disa bilities , heavier in some states than in others. These include 

disabilit y to vote,” to hold pub lic office,” and to obtain public employment;” ine ligibility for admi ssion to professions such as law, medicine, 

and teaching, or for admi ssion to other licensed callings such as taxi 

dr ivin g and liq uo r re ta iling ;” and other less obvious legal impe diments.”

(5) The law violators are numerous enough, and are sufficiently 

dispersed geo gra phicall y, to spread these effects through out the land. 

Th e problem is thus a nation al one, aris ing from a national war and 

invo lvin g our nationa l poli tica l health, and it can only be dealt with 

effectively and uniform ly through federal action.

Notice should be taken not only of the f oregoing consid erati ons but 

also of two addit ional arguments against soft treatment for those who 

have defied the law in the name of a higher duty. These less frequently 

artic ula ted arg um ent s, whic h very prob ably underlie the superficial 

question posed at the begin ning of this discu ssion , have been raised by 

thoughtful scholars and statesmen and therefore deserve attention.

Fir st, it is asked how we can expect any future milita ry consc ription

19. Blnu. Amnesty for Dissenters on War In Backed hy Religion* Leader*. N .Y . Times,

Ma r. 28. 1972. at 16. col. 3.

20. "The slate constitutional and statutory provisions disfranchising persons convicted of

criminal offenses are so diverse that they are difficult to categorize. Despite this diversity, the result

in the overwhelming majority o f states is that citizens convicted of serious crimes, usually felonies,

lose their right to vote until their civil rights are restored in accordance with the appropriate state

laws." Special Frojeet. The Collateral Consequences o f« Crimin al Conviction, 23 V a n d . L. R e v.

929, 975 (1970).

21. Id at 987.

22. Id at 1013.

23. Id at 1002-13.

24. See Id., passim.

31 -65 8 0 - 7 4 - 1 0
to succeed if we now grant unconditional and com plete pard on to those 

who have defied the dra ft for the war in S outheast Asia. The answ er, I 

think, is to he found in a point already mentioned. This war has demonstrated not tha t the American people are outright pacifists, but tha t we 

draw the line at wars whose necessity cannot be mad e clea r to all or 

nearly all of the people. The experience with the present war provides 

no basis for believing tha t our young people would lag back if our 

bord ers were invaded or if some neo-Hitler were to engage in atrocities , 

aggressions, and thre ats of world dom ination similar to those tha t led 

to World Wa r II.

The second and bro ader question is whether civil disobedience in 

any form is not to be feared and deplored as an attack upon the rule of 

law itself. Can public ord er survive if we do not insist upon at least some 

punishme nt for those who have denied their oblig ation to comply with 

duly enacted laws, channelin g their oppo sition to cfTcct change into the 

regular corrective processes of opinion form ation and electoral action? 

The general answer to this question is to be found in o ur system’s long 

standing recognition tha t civil disob edience can serve a useful public 

function. For centuries, religious leaders have insisted that although 

Cae sar must be rendered his due, the individual rightly reserves to him ­

self the right and duty to decide what belongs to Caesa r. If he decides 

that Caesa r has transgressed a higher law, he is duty -bound to resist. 

Moreover, although it is not to be expected tha t C aes ar will immediately 

counten ance such resistance in all cases—as Caesa r does in the case of 

our law respecting conscientious objection to military service—civil disobedience still serves a useful function by appealing to what the late 

Ch ief Ju sti ce Ston e called “ the sober second thou gh t of the com ­

munity .’’25 If histo ry proves tha t the objectors were righ t, as in the case 

of John Brown’s murderous attack at Ha rper’s Ferry and in the more 

recent exam ple of the thou sands who engaged in illegal “sit-ins” to 

protest rac ial di scrim ination, their crimes will be viewed as having 

brou ght abo ut long-run gains outweighing any tem porary losses in respect for legal authority . The risk they run is that their crim es may be 

found to disserve the long-term needs of society, contrary to their own 

deeply felt convictions and hopes. Such has been the fate of those who, 

like c ertain governors and lesser officials of the deep South ,2* defied the 

Supreme Co urt’s determ ination tha t racial segregation is uncon stitutional. Whether form ally convicted or not, their sincerely motivated

25. Stone, 77ip Common Law In the United Slates, 50 H ar v. L. Rev. 4, 25 (1936).

26. Lusky, Racial Discrimination and the Federal Law: A Problem In Nullification, 63 

C olum . L. Rev. 1163, 1174 n.49 (1963); see United State* v. Barnett. 376 U .S. 681 (1964).
135

violations or the criminal law will not be redeemed by the judgment of 

history. In the ease of resisters to the present war, history promises a 

more generous appraisal.

A more specific answer, pertinent in the particular circumstances 

of the present war, will serve to introduce a discussion of the nature and 

scope of amnesty that the public interest demands for resisters to this 

war. Two accepted axioms o f constitu tional government arc ( I ) that the 

rule of law binds the rulers as well as the ruled and (2) that ultim ate 

sovereignty resides in the electorate, if Caesar himself has ignored the 

expressed will of the people, is it the resisters who bear the real blame 

for denigration of the law, or is it Caesar?

A strong ease can be made for the proposition that Americans 

passed adverse judgment on the war no later than the 1968 presidential 

election. President Lyndon B. Johnson won the 1964 election on a platform containing a no-war plank. Four years later, in my opinion, a clear 

mandate was given when both major candidates won nomination on an 

end-the-war program, after President Johnson had declined to run for 

the stated reason that he feared his candidacy would hamper his peacemaking eflorts. This Novemher the people will have another opportunity to express their condemnation of the war if the issue is adequately 

framed in the presidential and congressional races. Should the people 

reallirm what I think they said in 1968, it logically follows that those 

who opposed the war sooner and more vigorously than the rest of us 

will tend to be regarded as having performed a service by helping to 

hasten public awareness of the war’s true character and presumptively 

should be relieved of all legal disadvantages resulting from their opposition to the war, or at least any such disadvantage that they incurred after 

the 1968 election. This conclusion not only involves remission of crim inal penalties but also implies the complete erasure o f criminal status.

It is desirable that amnesty, if premised on the wrongness of the 

war, be granted openly and officia lly and not bit by bit in the form of 

quiet military discharges given to deserters, or through casc-by-casc 

leniency accorded by clemency commissions or parole boards.27 The 

candid admission of error is beneficial not only to the individual soul, 

as the churchmen tell us, but also to the body politic. The French, for 

example, benefited from their painful recognition of the wrong done to 

Captain Dreyfus. The Germans benefited from their even more painful 

recognition of Nazi wickedness under the rule of Ado lf Hitler. We 

Americans, if we truly believe that the war in Southeast Asia has been

27. Thix. for example, wax the practice adopted after Wo rld War II . See note 12 sup ra.
1 3 6

b a d mi st a k e, al s o w o ul d b e n efit, b ot h i n s elf- e st e e m a n d i n o ur r el ati o n s wit h t h e r e st of t h e w o rl d, b y m a ki n g e x pr es s a n d offi ci al 

a c k n o wl e d g m e nt of t h e err or, a n d b y d oi n g s o s o o n er r at h er t h a n l at er.

F ull a m n e st y mi g ht n ot, h o w e v er, b e t h o u g ht a p pr o pri at e i n all, 

c as es. It w o ul d n ot b e ill o gi c al, t h o u g h it w o ul d b e a d mi ni str ati v el y 

diffi c ult, t o li m it cl e m e n c y t o t h o s e w h o se off e ns e s w er e m oti v at e d 

w h oll y or p artl y b y c o n s ci e nti o u s o p p o siti o n t o t h e w ar. T o b e s ur e, s uc h 

a li mit ati o n w o ul d di s cri mi n at e i n f a v or of a rti c ul at e y o u n g m e n w h o 

ar c c a p a bl e of e x pl ai ni n g t h eir f e eli n g s i n r cli gi o- p hil o s o p hi c al li n g o; 

a n d r el ati v el y f e w of t h e m c o m e fr o m A p p al a c hi a or H arl e m. Il al s o 

w o ul d n ot b e ill o gi c al, t h o u g h a g ai n a d mi ni str ati v el y diffi c ult, t o d e n y 

f ull cl e m e n c y t o t h o s e w h o se off e n s e s h a v e b e en “ vi ol e nt.” ” E v en wit h 

t h es e li mit ati o n s, h o w e v er, m o st a ct s of cri mi n al o p p o siti o n t o t h e w ar 

w o ul d b e p ar d o n e d.

If, o n t h e ot h er h a n d, it t ur n s o ut t h at m o st A m eri c a n s c a n a gr e e 

o nl y t h at f air n e s s s h o ul d b e a c c or d e d t o w ar r e si st er s, s o t h at t h eir a ct s 

or o mi s si o n s will b e r e a p pr ai s e d i n t h e c al m er at m o s p h er e of p e a c eti m e, 

a m n e sty will b e n arr o w er. T h er e m a y b e li b er ati o n of pri s o n er s, b ut n o 

er a s ur e o f t h e sti g m a of c o n vi cti o n or r e st or ati o n of p oliti c al a n d ci vil 

ri g ht s. T h er e m a y b e a m n e st y f or f e d er al off e n d er s ( m o st of w h o m ar c 

dr aft r ef u s er s) b ut n ot f or st at e l a w vi ol at or s — m o st o f w h o m h a v e b ee n 

pr o s ec ut e d f or s o m e f or m of vi ol e n c e or n e ar- vi ol e n c e, t h o u g h t h e gr e at 

m aj orit y h a v e d o n e n o m or e t h a n bl o c k t h e tr a n s p ort of dr aft e e s or 

e n ga g e i n ot h er ill e g al d e m o n str ati o n s.

I n a p pr ai si n g t h e d e sir a bilit y of li mit ati o n s u p o n a m n e st y, h o we v er, o n e s o m b er f a ct m u st n ot b e i g n or e d. Atti c a st a n d s a s a r e mi n d er 

of t h e diffi c ult y a n d h u m a n w a st e i n v ol v e d i n p u ni s h m e nt of p e o pl e w h o 

b eli ev e t h e y h a v e b ee n u nj u stl y c o n vi ct e d. It al s o h a s br o u g ht t o li g ht 

t h e p ri miti v e cr u dit y of t h e m et h o d s t h at o ur p e n ol o gi st s h a ve t h u s f ar 

d e vi s e d f or d e ali n g wit h t h e m. T h e e x e c uti o n or c o nti n ui n g p u ni s h m e nt 

of p ers o ns w h o se i n n o c e n c e i s m ai nt ai n e d n ot o nl y b y t h e m s el v e s b ut 

b y gr e at n u m b er s of s y m p at hi z er s pr o vi d e s t h e l att er wit h a d e v a st ati n gl y eff e cti v e m e an s of p er p et u ati n g d e str u cti v e s o ci al di s c or d. T hi s i s 

n ot t o s ay t h at t h e g uilt y a n d t h e i n c orri gi bl e s h o ul d g o fr e e w h e n e v er 

n oi s y m o b s p er si st i n d e m a n di n g t h eir r el ea s e. B ut it i s cl e ar t h at w h en 

a c o n si d er a bl e s e g me nt of s o ci et y b eli ev e s t h at a r e al q u e sti o n e xi st s 

a b o ut m or al or l e g al c ul p a bilit y of t h e i n c ar c er at e d — a s i s tr u e i n t h e 

c as e b ot h of t h e bl a c k milit a nt s nt Atti c a u n d of t h e dr aft r e si st er s

2 R. T h e t er m ‘’ vi ol e nt " i s n ot e a s y t o d efi n e. D o e s it I n cl u d e, f or e x a m pl e, t h e a ct of s cr a m

bli n g dr aft h o ar d r e c or d s or p a rti ci p a ti n g i n ait-i n d e m o n str ati o n s ?
137

imprisoned now or in the future by reason of their disapproval of the 

war in Southeast Asia— there is a price to be paid in the coin of persisting social discord.

Finally, in deciding whether clemency is due such offenders as the 

Berrigans, we should ask ourselves this question: had John Brown’s 

body not lain a-mouldcring in the grave )vhen the Civ il War ended— if, 

instead, he had been serving a prison term —would he have been accorded less generosity than JefTerson Davis and Robert E. Lee?

Only a crystal ball could tell us how the amnesty problem will be 

resolved. Its tim ing, especially, may depend on how the war ends. 

Should it cease at a defined moment,” amnesty, is likely to be granted 

soon thereafter. Should the war trd il off as gradually as it began, amnesty may be slower in coming.

But should we postpone our consideration of the problem until 

hostilities are over? 1 do recognize the accuracy of President Nixo n’ s 

prediction that amnesty will be delayed until our prisoners are back 

home and Am erican servicemen, except perhaps for volunteers, no 

longer fight in Southeast Asia.” It docs not follow, however, that the 

politic al groundwork for nn amnesty must be delayed until then. It is 

not too soon to initiate public debate on the scope and timing of the 

amnesty. Unless public opinion crystallizes and the candidates commit 

themselves on this issue, the November 1972 election cannot serve as a 

meaningful expression of the popular will. No r is it too soon to lay the 

necessary legal groundwork. Thus in the remainder o f this article, I shall 

consider the possibilities for presidential and congressional action to 

develop the means for carrying out the expression,of public sentiment 

that may well emerge when Americans next go to the polls.

• •» t

III. Presidential and Congressional Power T Grant A mnesty 

to Federal and State Offenders

The co nstitutiona l au thority ,fo r a presidential or congressional 

grant of amnesty must be examined on two levels. Since the Constitution contains an express provision regarding clemency for federal offenses, presidential and congressional power in this area is considered first. 

The question of amnesty for state offenders is then discussed separately

29. Recent event* may have increased the probability for a rapid termination of the war in 

Southeast Asia. A quick settlement may be spurred by President Nixon's trips to Peking and 

Moscow, by congressional action, or by the United Nations, whose competency in this area has 

been increased by the admission o f Mainland China. Cf. N .Y . Times. Apr. 14. 1972, at I. col. 4.

JO. N .Y . Timea. Jan. 3. 1972, at 20. col. 8; N ew sw eek. Jan. 17. 1972, at 19. col. 2.
138

because the Con stitutio n contains no express provision regarding clem ­

ency for these persons.

A. Federal Offenders 1

It is true, as Presiden t Nixo n has reminded us, that clemency for 

federal ofTcnses is an executive function. Article II, section 2 of the 

Constitution gives pardoning power to the Pre sident.’ Such clemency 

can tak e the form of full pardo n—witH erasure of guilt, as is done in 

cases of mistake n identity— or remission or reduction of punishm ent. 

Moreover, the Preside nt's power to g rant amnesties as well as individual 

pa rdon s was not seriou sly challeng ed until cong ressional radicals 

mounted a constitutio nal attack against President Andrew Johnson’s 

uncondition al gra nt of amnesty on Christmas Day, 1868, to all Con federa tes who had part icip ated in the Civil Wa r.” In 1869 the Senate 

Jud iciary Comm ittee concluded that the President under article II, section 2 of th e C ons titution did not have the power to gra nt amn esty . The 

Comm itte e reaso ned tha t there is a distinction between the terms pardon and amn esty and tha t the framers, being awa re of the distinction, 

deliberately omitted amnesty from the authority “ to gra ht Reprieves 

and Pardo ns.’’”

The presidential power to gra nt amnestie s under article II, section 

2 was confirme d, however, by the Sup rem e Co urt’s dec isions in United 

Sta tes v. Kleinu and Ar ms tro ng v. United Stales ,u tha t upheld the 

amnesty ord er of December 25, 1868. In late r decisions, the Court has 

gone on to hold tha t the Pre sident’s pardoning power includes the power 

to gra nt not only outrigh t a mne sty, but also amn esty conditione d on the

31. U.S . Const , art. II, § 2. The section gives the President “ Power to grant Reprieves and

Pardons for Offences against the United States, except in Cases of Impeachm ent."

32. Proclamation of Dec. 25. 1868. 15 Stat. 711.

33. "The committee, after a careful examination of the subject, have no hesitation in coming

to the conclusion that the proclamation in question was wholly beyond the constitutional power of

the President, and that it can have no efficacy to the ends sought to he reached by it. " S. Ref .

No. 239. 40th Cong.. 3d Sess. 22 (1869). The logic of the Senate report apparently ignores a

statement by Alexander Ham ilton in FederaH.it Paper No. 74, in which he indicated that the

pardoning power should extend to the^rgnting o f an amnesty. The principal argument for reposing

the power of pardoning in the Chief, JEgecutive. he said, is that "in seasons of insurrection or

rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or

rebels may restore the tranquility of the commonwealth . . . . The dilato ry process o f convening

the legislature, or one of its branches, for the purpose of obtaining its sanction to the measure,

would frequently be the occasion of letting slip the golden opportunity." T hb Fed er al ist N o . 74,

at 484 (E. Earle ed. 1937) (A. Ham ilton).

34. 80 U.S. (13 W all.) 128 (1872).

35. 80 U.S. (13 Wall.) 154 (1872).
1 3 9

o c c urr e n c e or n o n o c c urr c n c c of a s p e cifi e d e v e nt.” R e a s o n a bl e c o n diti o n s — p er h a p s a n o at h of all e gi a n c e, a s aft er t h e Ci vil W a r

17

 or p erh a ps alt er n ati v e p u bli c s er vi c e a s pr o p o s e d b y S e n at or T aft a n d ot her s’* — c a n b e att a c h e d.

Alt h o u g h t h e Pr e si d e nt h a s pl e n ar y p o w er t o gr a nt cl e m e n c y t o 

f e d er al olf c n d cr s, b ot h milit ar y a n d ci vili a n, t h er e ar c c ert ai n t hi n g s t h at 

h e l a c k s p o w er t o d o wit h o ut c o n gr e s si o n al a ut h ori z ati o n, li e pr o b a bl y 

l a c k s p o w er t o r e st or e t h e citi z e n s hi p of t h o s e w h o h a v e r eli n q ui s h e d it 

i n pr ot e st a g ai n st t h e w ar, si n c e C o n gr e s s al o n e p os se ss es t h e 

n at u r ali z ati o n p o w er.” M or e o v er, t h e S u pr e m e C o u rt i n U nit e d Si dl e s 

v. liitr di c k * h el d t h at t h e Pr e si d e nt c a n n ot gi v e a p ar d o n gr a nti n g a 

g e n er al p er s o n al i m m u nit y fr o m p u ni s h m e nt f or u n s p e cifi e d ol Tc ns cs. 

Alt h o u g h t h er e i s s o m e l a n g u a g e i n t h e o pi ni o n t h at c o ul d b e cit e d 

a g ai n st pr e si d e nti al p o w er t o gr a nt pr e- c o n vi cti o n p ar d o n s, t hi s s h o ul d 

b e di sr e g ar d e d a s u n c o n si d cr e d di ct u m b ot h b e ca u se t h e e x er ci s e of t hi s 

p o w er h as b e e n u p h el d b y t h e C o urt o n a n u m b er of o c c a si o n s

41

 a n d 

b e ca u se t h e e as e i n v ol v e d a w h oll y dil T cr c nl pr o bl e m.

41

T h e S u pr e m e C o urt n e ver h a s b ee n c all e d u p o n t o a dj u di c at e t h e 

c o n stit uti o n alit y of a n a m n e st y gr a nt e d b y C o n gr e ss al o n e, wit h o ut t h e 

affir m ati v e c o n c urr e n c e o f t h e Pr e si d e nt or s o m e m e m b er of hi s c a bi n et. 

A s a m att er of f a ct, s o f ar a s I c a n di s c o v er, C o n gr e ss h a s n e v er p a s se d 

a n a ct l a b el e d a s a n a m n e st y. L e gi sl ati o n h a vi n g t h e s a m e cf T c ct, h o we v er, h as b ee n p as s e d o n s e v er al o c c a si o n s. Aft er t h e Ci vil W ar, f or 

e x a m pl e. C o n gr e s s, p ur s u a nt t o s e cti o n t hr e e of t h e f o urt e e nt h 

a m e n d m e nt,

41

 r e m o v e d p oliti c al di s a biliti e s

44

 t h at h a d b e en i m p o s e d

3 6. U nit e d St al e s v. B ur di c k. 2 3 6 U. S. 7 9 ( 1 9 1 5): K n ot e v. U nit e d St at e s. 9 5 U. S. 1 4 9, 1 5 3 

( 1 8 7 7) ; s e e U nit e d St at e s v. Kl ei n. 8 0 U. S. ( 1 3 W all.) 1 28 ( 1 8 7 2 ).

3 7. S e e n ot e 1 0 s u pr a a n d a c c o m p a n yi n g t e xt.

3 8. H R . 1 2 4 1 7. 9 2 d C o n g.. 2 d S o w. ( 1 9 7 2 ); S. 3 0 1 1. 9 2 d C o n g.. 1st S es s. ( 1 9 7 1).

3 9. T h e C o n stit uti o n e x pr es sl y d el e g at e s t o C o n gr e s s t h e p o w er “ T o e st a bli s h a n u nif or m

R ul e of N at ur ali z a ti o n U. S. C o n s t , art. I. $ 8. cl. 4.

4 0. 2 3 6 U. S. 7 9 ( 1 9 1 5).

4 1. Ar m str o n g v. U nit e d St at e s, R 0 U. S. ( 1 3 W all.) 1 5 4 ( 1 8 7 2); U nit e d St at e s v. Kl ei n. 8 0 

U. S. ( 1 3 W all.) 1 2 8 ( 1 8 7 2). S e e a h o n ot es 9 A 1 0 s u pr a ( pr e si d e nti al pr e c o n vi cti o n a m n e st y f or 

s p r e a d off e n se s h a d r e p e at e dl y b e e n gr a nt e d ? a p p ar e ntl y wit h o ut c h all e n g e).

4 2. T h e d e ci si o n t ur n e d o n w h et h er a c c e pt a n c e of a p ar d o n i s n e ce s s ar y f or it s eff e cti v e ne s s. 

2 3 6 U. S. at 8 7.

4 3. S e cti o n 3 of t h e f o urt e e nt h a m e n d m e nt pr o vi de s: “ N o p er s o n s h all b e a . S e nat or or 

R e pr e s e nt ati v e i n C o n gr e s s, or El e ct or of Pr e si de nt a n d Vi c e- Pr e si d e nt, or h ol d a n y offi c e, ci vil 

nr milit a r y, u n d er t h e U nit e d Sl at e s, nr u n d er a n y st at e, w h o. h a vi n g pr e vi o u sl y t a k e n a n o at h, a s 

a m e m b er of C o n gr e s s, or ns a n offi c er of t h e U nit e d St at e s, or n s n m e m b er of a n y St al e 

I e gi sl at ur c. nr n s n n e x e c uti v e or j u di ci al offi c er of u n y Sl at e, t o s u p p ort t h e C o n stit uti o n of t h e 

U nit e d St ni e s. s h all h a v e e n g a g e d i n i n s urr e cti o n or r e b elli o n o g ni nsl t h e s a m e, or gi v e n ni d or 

c o mf ort t o t h e e n e mi e s t h er e of. B ut C o n gr e s s m a y, b y a v ot e of t w o t hir d s of e a c h H o u s e, r e m o v e 

s uc h di s a bilit y. " U. S. C o n s t , a m e n d. X I V , 5 3. T h e fir st s e nt e nc e l e giti mi z e d C o n gr e s s’ att e m pt s
140

This action was never challenged in the courts, because it was expressly 

authorized by the fourteenth amendment,4* and, therefore docs not constitute persuasive authority for the existence o f a general congressional 

amnesty power. On the other hand, at least two Supreme Court cases4* 

have indicated that Congress may have an amnesty power, although it 

is clear that Congress may not lim it or restrict the presidential pardoning power.47

In Pollock v. Bridgeport.** commonly referred to as The Laura, the 

Court upheld an act of Congress granting the Secretary o f the Treasury 

the authority to remit fines for violation of federal revenue laws. It was 

contended that this constituted an encroachment upon the President’ s 

exclusive right to grant pardons,4* but the Court held otherwise, noting 

that remission of fines had been standard practice for nearly a century. 

It will be observed that, in this ease, the remission of fines could not 

have taken place without the concurrence of a high executive official. 

For that reason it does not squarely hold that Congress could independently grant amnesty, although it docs provide some support for that 

view.

The same is true of Brown v. Walker.M decided in 1896. The plaintiff, Brown, had been subpoenaed to testify before a federal grand jury 

investigating alleged violations of the Interstate Commerce Act. He 

asserted the fifth amendment privilege against self-incrim ination in refusing to answer certain questions, even though Congress previously had 

authorized imm unity for witnesses such as he, and immunity had been 

granted to him. Having been jailed for disobeying a court order to 

answer the questions. Brown petitioned for a writ of habeas corpus on 

the theory that despite imm unity, compulsion to answer was an unconstitutional infringement upon his privilege against self-incrim ination.

io refuse to seat memhcrs-elcct who had southern sympathies. See gene rally R. C u r r e n t , T . 

W i i .iia m s , A F. Fr e io e i., A m er ic a n H is to r y 433-35 (1963).

44 Congress exercised the right to rem ove the dis abilities imposed by § 3 o f the fourtee nth 

amendment at various times and usually to benefit lim ite d classes o f persons. In IR72. for exam ple , 

by a blan ket act. disabilities were removed from all persons except .Senators and Representatives 

of the 36th and 37th Congress, officers o f the judiciar y, m ili ta ry and naval service of the United 

States, and a few others. Act of M ay 22. 1872, 17 Stat. 142. Fi na lly , on June 6, 1893. Congress 

removed all of the disa bilities that had been imposed under $ 3 of the fou rteenth am endm ent. Ac t 

of June 6. IR93. 30 Stat. 432.

45. U.S . C o n s t, amend. X IV , $ 3.

46. Brown v. W alke r. 161 U .S . 591 (1896); Pollock v. Bridgeport. 114 U .S . 411 (188 5).

47. Ex p an e Ga rla nd . 71 U .S . 333 (1866).

48. 114 U .S . 411 (IRR5).

49. W at 413.

50. 161 U.S . 591 (1896).
141

The Supreme Cou rt rejected Brow n’s fifth amendment claim51 and addressed the separation of powers argument, the possible conflict between the immunity statute and the executive pardoning power:

The act of Congress in question securing to witnesses immun ity from prosecution 

is v irtua lly an net of general nmnesty, and belongs to a class o f le gislation which is 

not uncommon either in England . . . or in this country. Although the Constitution 

vests in the President “ power to grnnt reprieves nnd purdons for olTcnccs against 

the United Stales, except in cases of im peachment," this power has never been held 

to lake from Congress the power to pass acts of general amnesty, and is ordinarily 

exercised only in cases of individuals nftcr conviction, although, as was said by this 

court in Etr Parle Garland . . . " it extends to every offense known to the law, and 

may be exercised at any time after its commission, either before legal proceedings 

urc taken, or during their pendency, or after con viction and jud gm en t."”

As already noted, the issue in Brown v. Walker was whether the 

legislature has power to forbid prosecution of a lawbreaker in exchange 

for otherwise unavailable testimony against other lawbreakers.53 The 

ease of the war resisters is not quite parallel, because no quid pro quo 

is involved. 55 Nevertheless, the above-quoted language seems to recognize the amnesty power as one that belongs to Congress despite the 

absence of express constitutional delegation, because the Court says that 

the President’s clemency power does not "ta ke from Congress the power 

to pass acts of general amnesty.”

B. State Offenders

The President surely lacks power to grant amnesty to the many 

violators of state law—a category that includes most of the illegal demon strators— because his constitu tional pardoning power is expressly 

confined to federal olTcnscs. Moreover, the Constitution docs not ind icate whether Congress has any power in this area. Consequently, some 

co nstitutiona l lawyers may say that slate law violators cannot be 

granted clemency even by Congress and the President acting in concert. 

They may argue that this power resides only in the respective states.

Each o f the 50 state governments does possess this power. In most 

of them, the governor has autho rity under the state constitution to

51. td at 600

52. td a l6 0 l.

53. S rr text accompanying notes 51 & 52 supra.

54. I l ix true that Senator Taft's bill. S. 3011, paralleled in the House by H R . 12417. 

introduced by Congressman Edward I. Koch, would grant amnesty on condition that the violator 

work in some public service job for a stipulated period. Unlike the Immunity statute involved in 

llrow n v. Walker, however, the objective or the Taft-K och bill is not to obtain the years or public 

service as a stipulated consideration; the purpose, rather, is to avoid discrimination against those 

who responded to the draft as required by law.
142

extend clemency to those who have been convicted,” and in the remaining states this authority resides in either a board of pardons* 5* or the 

legislature.5

’ Moreover, although only a mino rity of state constitutions 

contain a clemency provision whose scope is not expressly limited to 

post-conviction pardons,” it may well be that each state legislature has 

the power to withdraw the authority of police and prosecutors to proceed against lawbreakers not yet convicted.

Reliance on state clemency for war resisters, however, would inevitably negate the possibility of national uniformity, since there would be 

a broad spectrum of clemency policies. Illegal demonstrators, for example, convicted of obstructing the entrance to draft offices by link ing 

arms to form a cordon, might be granted a full pardon in some stales, 

reduction or remission of sentence in others, and no relief at all in the 

remainder. Such diversity, of course, would leave much to be desired 

on the score of fa ir and equal treatment for those who have responded 

in identical fashion to the challenge presented by the foreign policies and 

military ventures of the same federal government. Furthermore, the 

national interest in healing the societal wounds that the war has inflicted

55. A las. Cons t, art. III. 9 21; A r iz. C onst , art. 5. 5 5; A rk. Const, art. 6. § IR; C al. 

Con st, art. 7. 5 I: Coi.o. Const , art. IV , 5 7; C o n n . Const, art. IV , § 13; Di;l. C onst, art. 7. 

5 I (on recommendation in writing o f majority of honrd); H aw ah C onst, nrt. IV , 5 5; ll.l.. C onst. 

art. 5. § 13: I no. Cons t, art. 5. § 17 (may he limited hy hoard appointed hy legislature); Iow a 

Con st, art. 4, 5 16; K an. Const , art. I. $ 7; K y . Const . 5 77; La. Const, art. 5, 5 10 (on 

recommendation in writing of majority of hoard); M e. C onst , art. V II , § 9 (in conjunction with 

council); Mo. Cons t, art. 11.5 20; M ass. C onst, art. V III, 5 64 (with advice of council); M in n . 

Con st, art. 5. 5 4 (in conjunction with hoard); M in i. Const, art. V I, 5 9; Miss. Const , art. 5. 

5 124; M o nt. C ons t, art. V II . 5 9 (governor's action must he approved hy hoard); Mo. Const. 

art. 4. 5 7; N.H . Const , art. 2, 5 52 (governor may grant with advice of council): N J . Const. 

art. 5, 5 I; N .M . Const , art. 5, § 6; N .Y . C onst , art. IV . 5 4; N.C. Const, art III. § 6: N.D . 

Con st, art. 111,5 76 (1900) (in conjunction with board): On to C onst, art. I l l , 5 I; O k i.a. C onst. 

art. 6. 5 10 (upon favorable recommendation of pardons and parole honrd); Ore . C onst , art. V, 

5 14; Pa. Con st, art. 4. 5 9 (on recommendation in writing of mnjority of honrd); R.L Const. 

amend 2 (governor mnv grant with advice and consent of Senate): S.D . Const, art. IV , 5 5 ;Tf n n . 

( on si art 111. 5 6: Tex. C onst , art. 4, 5 I I (governor may grant on written recommendation

mtv,;x board majority): V a. C onst , art. V, 5 73 (power taken away if legislature creates

mrrtons hound): Vt. Const , art. 2. 5 20; W as h. C onst , art. 3, 5 9; W. V a. Const, art. 7, 5 II; 

Wis. Const, art. 5. 5 6; Wvo . Const , art. 4. 5 5.

56. Fi.a. Const, art. 4, 5 12; G a. Const, art. V, 5 I. eh. 21-3011; I da ho C onst, art. 4,

5 7; N fb. C onst , art. 4, 5 13: N ev. C onst, art. V. 5 14; S .C. C onst, art. 4, 5 II; Uta h Const. 

art. V II . 5 12.

57. A i .a. Const, art. 5. 5 124.

5R. A i .a. Const, amend. X X X V II I; Co n n . C onst , art. IV . 5 13; Del. C onst , nrt. 7. 5 I; 

H a w aii Const, art IV . 5 5; I da ho C onst , nrt. 4. 5 7; K an. C onst, nrt. I. 5 7; K y . Const. 5 77; 

La. Const, art. 5. 5 10: M e. C onst , art. V, 5 II; Mn. Const, art. II, 5 20; N J . Const, art. 5, 

5 2. H I; O re . Const, art. V, 5 14; Pa. Const, art. 4, 5 9; R .I. Const, amend. 2; S.C. Const. 

art. 4. 5 II; Tex. C onst, art. 4, 5 II; Vt . Const, art. 2, 5 20; W ash . Co n st, art. 3. 5 9.
143

would be lost in a welter of puroebiul party polities. Thus it would seem 

that federal action is needed, and since the President lacks the power 

to pardon state law violators, this raises the question whether any provision in the Constitution delegates sullieicnt power to Congress to grant 

amnesty to state offenders.

Despite the tremendous reach accorded to the commerce power 

during the past 35 years,” it would be hard to construct an argument 

that it extends to the pardoning of all stale law violators; even if an 

argument to this cITcct were somehow contrived, it would rightly be 

subject to criticism as a subterfuge.” For example, it is difficu lt to 

explain how the pardoning of one convicted of crim inal trespass for 

conducting a sit-in at a university ROTC office can be viewed as a 

protection of “ Commerce with foreign Nations, (or) among the several 

states, (or) with the Indian Tribes.**”

The war power provides a more solid basis for granting amnesty 

to state law violators. It has been held to authorize Congress to deal 

with the economic consequences of foreign wars.” By parity of reasoning. the war power should be held to include the authority to deal with 

war’s social consequences—specifically, disrespect for law on a scale not 

seen since Prohibition days, and a devastating polarization of political 

opinion. Given these facts, congressional amnesty for stale offenders 

might well pass muster under the war power.”

I l docs not follow, however, that prim ary reliance should be placed 

on the war power.** There is a certain incongruity in using the war power

59. Since 1937. the Supreme Court has accorded virtually complete deference to congressional exercise of the power. See. e.g.. Daniel v. Paul, 395 U .S. 298 (1969); Heart of Atlanta Motel 

v. United States. 379 U.S. 241 (1964); Wicka rd v. Filhurn. 317 U.S. I l l (1942); NLRB v. Jones 

& Laughlin Steel Corp.. 301 U.S. I (1937). In the 100 years preceding 1937, the commerce clause 

was interpreted more strictly. See. e.g.. Schechter Poultry Corp. v. United Stales. 295 U.S. 495 

(1935); Railroad Retirement Bd v. Alton R.R ., 295 U.S. 33 0(1 935); Ham mer v. Dagenharl. 247 

U.S. 251 (1918); United Stales v. E.C . Knight Co., 156 U.S. I (1895); The Trade-M ark Cases. 

100 U.S. 82 (1879); r / United States v. Butler. 297 U.S. I (1936).

60. Reliance on the commerce power to support the Civ il Rights Act of 1964, 42 U.S.C. 

66 1971. I975a-d. 2000a to h-6 (1970), occasioned much adverse comment on this account. See. 

eg .. Kalzenbach v. McClung. 379 U.S. 294. 305 (1964) (Douglas & Goldberg. J.J., concurring).

61. U.S. C onst , art. I. 6 8. cl. 3.

62. Bowles v. Willing ham . 321 U.S. 503 (1944) (rents); Yakus v. United Slates, 321 U.S. 

414 (1944) (prices).

63. In addition, the Supreme Court has held that congressional power to mitigate the consequences of a war does not end with the termination of hostilities, so timing of the amnesty would 

seem Io he no p; hlcm. Woods v. Miller Co., 333 U.S. 138 (1948) (postwar rent-control).

64. The fact that Congress has not declared this war might be thought Io preclude reliance 

on the war power, but such an objection almost certainly would fail. S rr Mo ra v. Mc Namn ra. 

389 U.S. 934 (1967) (the Court refused to review denial of injunction sought by army privates who 

attacked legality of undeclared Vietnam war and resultant orders shipping them to Vietnam).
144

Io pardon I hose who have illegally resisted (he war, and this might make 

an amnesty inexplicable to the electorate if based upon the war power 

alone. In my opinion, congressional action can and should he predicated 

not only upon the war power but also—and more app ropriately—upon 

a constitu tional provision that was adopted for the very purpose of 

empowering Congress to override state action that is inconsistent with 

federal policy: the privileges or immunities clause of the fourteenth 

amendment.

Some co nstitutiona l lawyers may well li ft an eyebrow at this 

suggestion. They know that the clause was emasculated almost a century ago by the decision in the Slaughter-House Cases,“ and that a 1935 

jud icial effort to reactivate it as a self-executing lim itation on state 

power** was quashed five years later.*7 They know too that it was a 

watershed decision which has shaped the whole course o f federal-state 

relations during the past 99 years. Even during the past ten years, when 

we have seen constitutional precedents that limited equality, free expression, and the rights of accused persons repudiated wholesale, this 1873 

decision has stood firm as Gibraltar, v irtua lly untouched by recent c riticism.*"

Yet, in my opinion, the decision in the Slaughter-House Cases was 

a disaster— a product of well-motivated judicial arrogance, comparable 

in destructive effect to the three “ self-inflicted wounds” listed by 

Charles Evans Hughes in his Blumenthal Lectures at Columbia University in 1927:** the Dred Scot! case,7

* Hepburn v. Griswold.1' and Pollock 

v. Farmers' Loan & Trust Co.11 As in each o f those cases, the Court in 

the Slaughter-House Cases overstepped the bounds of judicial power to 

rewrite the Constitutio n. As in each of those cases, the Court was impelled to usurpation by a felt need to save the Nation— from rebellion 

in Dred Scott, from fiscal irresponsibility in Hepburn, from socialism 

in Pollock, and from replacement of federalism by centralized government in the Slaughter-House Cases. And, as in each o f those cases, the

65. R3 U.S. (16 Wall.) 56 ( IR73).

66. Colgate v. Hnrvey. 296 U.S. 404 (1955): see Hogue v. C IO . 507 U.S. 496, 500 (1959) 

(Roberts A Black, J.J., concurring).

67. Madden v. Kentucky. 509 U.S. R5 (1940).

6R. The m wl notable exception is L. M i i .i .er, T he P et itio ne rs ch. 7 (1966).

69. C.F.. H uoiif.s, T he Supreme Court oe th e U nit ed States 50-54 (1928).

70. Dred Scott v. Sandford. 60 U.S. (19 How.) 393 (1857). overruled by U.S. C onst . 

Amend. X IV .

71. 75 U.S. (8 Wall.) 603 (1870) (the first Legal Tender Case), overruled. Knox v. Lee. 79 

U.S . (12 Wall.) 457 (1871).

72. 157 U.S . 429 (1895) (invalidating the federal Income tax ), overruled. U.S. Const. 

amend. X V I.
145

wcl l-intcntioncd decision was a national catastrophe.

These arc serious charges to level at a constitutional decision that 

has been so universally accepted by great judges.” Therefore, although 

this is not the place for a full disquisition, it is necessary to state the 

gravamen of the indictment.”

Hirst, we must understand precisely what Justice M iller’ s ma jority 

opinion held. In 1869 the Louisiana legislature had enacted a statute 

giving to a certain corporation a monopoly on the operation of slaughter 

houses in three parishes, including New Orleans. A number o f butchers, 

being thus forbidden to continue their businesses as independent enterprises, attacked the statute as violative of the thirteenth and fourteenth 

amendments. The Supreme Court rejected these contentions, affirming 

the judgment of the Supreme Court of Louisiana that upheld the statute.

What concerns us here, with regard to the amnesty question, is the 

rati ona le of Justice Mille r's opinion, insofar as it interprets the privileges or immunities clause o f the fourteenth amendment. Section 1 of 

the amendment, after providing that all persons born or naturalized in 

the United States and subject to its jurisdiction are its citizens, goes on 

to provide: “ No State shall make or enforce any law which shall abridge 

the privileges or immunities of citizens of the United States.’’” The 

complaining butchers claimed that the right to pursue a lawful common 

calling is a privilege inherent in citizenship, and that, being citizens of 

the United States, they enjoyed immu nity from abridgment of that

7 1 Hague v. C IO . 307 U.S. 496. 519-20 A n.l (1959) (Slone. J., concurring); Colgate v. 

Horvey. 296 U.S. 404. 443, 445-46 (1935) (Slone, Brnndeis. A Cnrdozo. J.J., dissenting).

74. Il could he contended that even if the Slaughter-It mue Caxex were nol overruled, Congress, under Ihe privilege* or immunities clause and 5 5 of the fourteenth amendment, has the 

power to gran, nmnesty to person* who have violated state statutes in their acts o f protest against 

Ihe war in Southeast Asia. Although 5 5 historically has been rcstrictivcly construed (see ihe Civil 

Rights Case*. 109 U.S. 3 (IMM3); United Stales v. Harris, 106 U.S. 629 (IX*2 ); United States v. 

Cruikshank, 92 U.S. 542 (1X75)). recent decisions seem to indicate that the Supreme Court is 

willing to give Congress some latitude in defining the phrases o f the first section of the fourteenth 

amendment. .Vrr Katzenhnch v. Morgan. 3R4 U.S. 641 (1966). See ahn United States v. Guest. 

3M3 U.S. 745 (1966). It would seem that under the Civil Rights Act of IR66, as interpreted hy Jones 

v Alfred H. Mayer Co.. 392 U.S. 409 (I96R). Congress has the power under the analogous § 2 of 

the thirteenth amendment to grant to an individual an affirmative privilege against private racial 

discrimination. Since the fourteenth amendment was designed in part to legitimate the C ivil Rights 

Act of IR66. it is arguable that the fourteenth amendment's privileges or immunities clause was 

intended to have wider scope than has heretofore been recognized. If the fourteenth amendment 

was designed to give to Congress the power to define a privilege against private racial discrimination. then the fourteenth amendment also might confer on Congress the power to grant amnesty 

as an immunity of United States citizenship and to forbid even private discrimination against an 

individual heenuse of his dissent from the war in Southeast Asia. To the contrary it could he argued 

that the fourteenth amendment granted to Congress expansive power only to prevent racial discrimination. See Oregon v. Mitchell. 400 U.S. 112. 129 (1970).

75. U.S. Con st, amend X IV , 5 I.
1 4 6

pri vil e g e. T h eir e as e w as t h e fir st t h at r e q uir e d t h e S u pr e m e C o urt t o 

i nt er pr et a n d a p pl y t h e f o urt e e nt h a m e n d m e nt, a n d, a s o n e c o m m e nt at or a ptl y wr ot e 4 0 y e ar s aft er w ar d: “ T h u s t h e S u pr e m e C o u rt of t h e 

U nit e d St at e s b e ga n it s s erie s of a dj u di c ati o n s u n d er t h e F o urt e e nt h 

A m e n d m e nt b y s u b st a nti all y r e p u di ati n g it.’’

J u sti c e Mill er’ s r e a s o ni n g r ej e cti n g t h e pl ai ntiff s’ cl ai m u n d er t h e 

pri vil e g e s or i m m u niti e s cl a u s e of t h e f o urt e e nt h a m e n d m e nt w a s 

f o u n d e d o n s ev en pr o p o siti o n s, of w hi c h t h e s e c o nd, t hi r d, si xt h a n d 

s e v ent h, it i s s u b mitt e d, d o vi ol e n c e t o t h e C o n stit uti o n:

( 1) F e d er al citi z e n s hi p i s a st at u s di sti n ct fr o m st at e citi z e n s hi p, a s 

t h e v er y w or di n g of t h e fir st s e nte n c e of t h e f o urt e e nt h a m e n d m e nt 

s h o w s.

( 2) E a ch t y p e of citi z e n s hi p, f e d er al a n d st at e, c arri e s wit h it a 

di sti n ct s et of pri vil e g e s a n d i m m u niti e s a n d t h e t w o s et s d o n ot o v erl a p; 

t h u s w h at e v er i s a pri vil e g e or i m m u nit y of st at e citi z e n s hi p c a n n ot b e 

a pri vil e g e or i m m u nit y of f e d er al citi z e n s hi p.

( 3) It i s st at e a n d n ot f e d er al citi z e n s hi p t h at c arri e s wit h it “ t h o s e 

pri vil e g e s a n d i m m u niti e s w hi c h ar e f u n d a m e nt al; w hi c h b el o n g of ri g ht 

t o t h e citi z e n s o f all fr e e g o v er n m e nt s, a n d w hi c h h a v e at all ti m e s b ee n 

e nj o y e d b y citi z e n s of t h e s e v er al St at e s w hi c h c o m p o s e t hi s U ni o n, 

fr o m t h e ti m e of t h eir b e c o mi n g fr e e, i n d e p e n d e nt, a n d s o v er ei g n.”

77

( 4) T h e pri vil e g e of p ur s ui n g a c o m m o n c alli n g i s a pri vil e g e of 

st at e citi z e n s hi p b e ca u se it i s a f u n d a m e nt al ri g ht t h at h a d e xi st e d, 

s u bj ect t o t h e r e g ul at or y p o w er of t h e s e v er al st at ut e s, si n c e b ef or e t h e 

r atifi c ati o n of t h e C o n stit uti o n i n 1 7 89 —i. e., fr o m t h e ti m e w h e n t h e 

c ol o ni c s b e c a m e fr e e st at es.

( 5) T h e s e c o n d s e nt e n ce of t h e a m e n d m e nt pr ot e ct s o nl y t h e p ri vil eg es a n d i m m u niti e s of f e d er al citi z e n s hi p.

( 6) T h er ef or e, t h e ri g ht t o p ur s u e a c o m m o n c alli n g i s n ot a pri vi ­

l eg e of f e d er al citi z e n s hi p a n d s o i s n ot pr ot e ct e d b y t h e pri vil e g e s or 

i m m u niti e s cl a u s e of t h e f o urt e e nt h a m e n d m e nt.

( 7) It f oll o w s t h at t h e pri vil e g e s or i m m u niti e s cl a u s e of t h e f o u rt e e nt h a m e n d m e nt i s v er y r e stri ct e d i n it s s c o pe: it pr ot e ct s o nl y t h o s e 

pri vil e g e s a n d i m m u niti e s t h at “ o w e t h eir e xi st e n c e t o t h e F e d er al g o v7 6. E. A b b o t t . Ju s ti c e a n o t h e M o o f b n La w 7 5 ( 1 9 1 J).

7 7. RJ ( J. S. ( 1 6 W all.) al 7 6, q u oti n g wit h a p pr o v al fr o m J u sti c e W a s hi n gt o n’ s o pi ni o n i n 

C orfi el d v. C or y ell, 6 F. C a s. 5 4 6 ( C. C . E. O. P a. I R 2 3) ( e m p h a si s n s i n ori gi n al). T h e C orfi el d 

e as e, i nt er pr eti n g t h e pri vil e g e s a n d i m m u niti e s cl a us e of art. I V . $ 2, h el d t h nt t h e pri vil e g e of 

di g gi n g f or o y ster s i n N e w J ers e y w at er s w a s n ot a pri vil e g e or i m m u nit y of citi z e n s hi p w hi c h h a d 

t o h e e xt e n d e d t o P e n n s yl v a nia n s, b e ca u se e nj o y m e nt of t h e st at e’ s p u bli c d o m ai n w a s n ot s o 

“f u n d a m e nt al ” a ri g ht a s t o b e a pri vil e g e I n h er e nt i n citi z e n s hi p.
147

eminent, its Nationa l character, its Cons titution, or its laws,” 7

* such as 

the right to go to the seal of government, the right of access to seaports, 

the right to petition the fcdcrul government for redress o f grievances, 

the right to freedom of the high seas and protection while in foreign 

lands, and the righ t to use navigable streams. The great residue of 

rights— including nearly a(l of those that really matter to the common 

man— arc privileges and im munities of state citizenship only, the fourteenth amendment not having been intended to alter the basic character 

of our federal system by “ brin ging ] within the power of Congress the 

entire domain of civil rights heretofore belonging exclusively to the 

Stales.” 7

* .

The notion that there CQuj^.bc no overlap between the perquisites 

of state and of federal citizenship was made from the whole cloth, a 

sheer invention by Justice K liller. C ertainly the idea was not imp licit in 

Justice Washington's Cqrficld v. /Co ryell" opinion, which interpreted 

the privileges and immunities clause of article IV , section 2, because 

that IH23 ease was decided long before the fourteenth amendment im ­

ported into the C ons titution, for the first time, the term “ citizen of the 

Un ited States.” To be sure, tb<? duality of citizenship’ had been expounded by Chief Justice Taney in the Dred Scott ease"' but not for the 

purpose of showing that the perquisites appurtenant to the respective 

citizenships were mutually exclusive; his point, rather, was that one 

might be a “ citizen” within the meaning of the Missouri Constitution 

and laws, and yet not be a “ citizen” as that term is used in article ill, 

section 2,” and article IV, section 2,” of the fed era l constitution. Furthermore, as Justice Mille r himself recognized!, it was universally agreed 

that the purpose o f the first sentence of the fourteenth amendment was 

to repudiate the Dred Scott ruling that Negroes, whether slave or free, 

were not and could not become members of the “ political community

78. S3 U S. (16 Wall.) al 79.

79. S3 U S. (16 W all,) at 77.

80 6 F. Cm . 546 (C .C , E^D, Pa. 1823).

81. Dred Scott v. Sandft^d. 60 U.S. (19 How.) 393 (1857).

82. "The judicial Power; shall extend to all Cases, in Law and Equity, arising under this 

Constitution, the Laws of the United States, and Treaties made, or which shall be made, under 

their Authority . . . to Controversies . . . between a State and Citizens o f another Stale:— between 

Citizens of different States:— between Citizens of the same State claiming Lands under Grants of 

different States, and between a State, or the Citizens thereof, and foreign States. Citizens or 

Subjects." U.S. Const , art. H I. 6 2.

83. "The Citizens of each State shall be entitled to all Privilege! and Immunities of Citizens 

in the several States." U.S. C onst , art. IV , f 2.
148

created by the Constitutio n of the United States” —i.e.. “ citizens of the 

United Slates.” "’

A full exploration of the catastrophic results that have flowed from 

the Mille r interpretation of the fourteenth amendment privileges or 

immunities clause must be reserved for another occasion. For present 

purposes it is enough to point out that it limited almost to zero the 

power of Congress. under the three Civil War amendments, to intervene 

in the relations of a slate with its citizens in order to prevent a national 

interest from being subverted as a result of h ostility or indifference on 

the part of slate and local officials. It is true that, as Justice Mille r 

pointed out, a drastic shift of power from the states to the federal 

government would have resulted from a decision that the privileges and 

immunities of federal citizenship include the “ fundamental” rights; he 

seems to have assumed— quite understandably, and indeed correctly—that the legislature has power to define and redefine the perquisites of citizenship. As he said, this power would have enabled Congress 

to assume centralized control of the whole country, if —and it is an 

important “ i f ’— the voters had been willing to stand for it."* Granting 

arguendo that the possibility of such centralization at the date of the 

Slaughter-House decision was as dangerous as Justice Miller believed, 

there would have been compensating advantages. Had the Court confirmed the privileges or immunities clause as a source of plenary congressional power to root out the vestiges of slavery, we might now, a 

century later, be much farther on the road to a nonracial society."" Since 

the fourteenth amendment— though begotten by the need to protect the 

newly freed slaves from the erstwhile rebel state governments— is by no 

means limited to protection of the freedmen, the only thing that prevents 

resort to its privileges or immunities clause as a source of congressional 

amnesty power is the restrictive Slaughter-House interpretation of that

R4. 60 U .S . (19 H o w .) nt 40 6.

R5. See Wechsler, The Po litical Safegu ards o f Federalism : The Role n f the Stales in the 

Composition and Selection o f the Nat io nal Governme nt. 54 Co lu m . L. . . 54 1 (1 954).

R6. O f course, the Cou rt in the Sla ug hter-Hou se Cases conceded tha t Congress possessed 

the pow er, provided by the final section of each of the amendm ents, to enforce the 3 Civil W ar 

amendments by appropriate legislation. Bui the C ou rt initially construed these enforcement clauses 

with almost unbelie vable strictness. See note 74 supra. Not un til a few years ago did the Cou rt 

begin to permit congressional use of the enforcement clauses to broaden the self-executing coverage 

of the amend ments— though the Cou rt stopped short of m aking them into a general charter to preempt state jurisdiction whenever Congress believes the natio na l interest so demands. See Griflin 

v. Breckenridge. 403 U .S . RR (197 1); Adickes v. S. H . Kress & Co.. 39R U .S . 144 (19 70); Jones v. 

Alfred H . May er Co.. 392 U .S . 409 ( I96 R); Ca rdon a v. Power, 3R4 U .S . 672 (11966); Kal/cnh ac h 

v. Morga n, 3R4 U .S . 641 (196 6); United States v. Price, 3R3 U .S . 787 (196 6); United States v. 

Guest. 383 U .S . 745 (196 6).
149

clause. Therefore, let us examine the soundness of that interpretation.

Although Justice M ille r’s interpretation is supported neither by 

precedent nor by the words of the Constitution, this might not be a 

ground for critic ism if, in the judgment of history, it had served the 

public welfare. Other such usurpations, perhaps including Ma rbury v. 

Madison*1 itself, have survived that test. For reasons already stated, 

however, I think it has serio usly disserv ed the public welfare by alloca ting to the C ourt rather than to Congress the primar y responsibility and 

authority for rooting out the vestiges of s lavery. Other unhappy consequences could be cited as well. But let us assume that the Cou rt was 

justif ied, in the short view at least, in recoiling from an interpretation 

that would have aggrandized the power of a Congress, which, for corruption and faction, has been unexcelled by any of its forebears or 

successors. There is still the matter of intellectual honesty.

Incredible as it may seem, Justice Mille r’s opinion (I ) deliberately 

misquotes the Consti tution in a material respect; (2) trims a quotation 

from Co rfield v. Co ry ell in a manner which obscures the fact that, from 

his viewpoint, it was harmful rather than helpful author ity; and (3) 

denies, erroneously, that Congress- had ever undertaken to define the 

privileges and immunities of federal citizenship. Let us examine these 

points in order.

(I ) At page 75 of 16 Wal lace , Justice Miller declared: “ In the 

Consti tution of the United States, which superseded the Artic les of 

Confederation, the corresponding provision {defining “privileges and 

imm uni tilc s" of slate citizenship] is found in section two of the fourth 

article , in the following words; ‘The citizens of each Slate shall be 

entitled to all the privileges and immunities of citizens of the several 

States.’ Th is purported quotation, which substitutes the word “o f ’ 

for “i n,” is set forth as part of the argument for dual citizenship and 

against the dissenting view that the framers of the fourteenth amendment, who had regarded certain fundamental privileges and immunities 

as imp licit in the status of free citizen sim plic iter , intended to add 

federal protection to those samfc fundamental privileges and immunities 

alread y accorded protection by the several states. It would be reasonable 

to assume that Jus tice M ille r’s pen had merely slipped in this purported 

quotation from article IV , section 2, until one discovered that the error 

remained uncorrected despite the following observation in Justice Brad ­

ley’s dissent; “ It is pertinent to observe that both the clause of the 

Constitution referred to, and Justice Washington in his comment on it.

87. 5 U S . (I Cr inch) 137 (1 803).

88. 83 U S (-16 W il l .) it 73 (emp hasis added).

31-658 0 - 7 4 -1 1
150

speak of the privileges and immunities of citize ns in a Sta te; not of 

citize ns o f a State. It is the privileges and imm unities of citizens, tha t 

is, of citizens a s such, tha t arc to be accorded to citize ns of other Stales 

when they arc found in any State; or, as Justice Was hington says, 

‘priv ileges and im mun ities which arc, in their nature, fundam ental; 

which belong, of righ t, to the citizens of all free governments.’ ’’”

(2) At page 76 of 16 Wallace , Justice Miller quotes from Justice 

Wa shington 's opinion in Corfield v. Coryell:

Th e inq uiry is, what are the priv ilege s and imm unities o f cit izens of the several 

Sta les? We feel no hesita tion in confining these exp ressions to those privileges and 

imm unit ies which are fun dame nta l; which belong of r ight to the c itiz ens of all free 

governmen ts, and which have at all times been enjoye d by citizen s of the several 

States which compo se this Un ion , from the time of thei r beco ming free, 

independent, and sove reign . Wha t these fundamen tal prin cipl es are, it would be 

more tedious than difficul t t o enumerate. Th ey m ay all , however, be comprehended 

under the foll owing genera l heads: protection by the gove rnme nt, with the right to 

acqu ire and possess prop erty o f every kin d, and to pursue and o btain happiness and 

safely , sbojcct, nevertheless, to such restraints as the governme nt ma y presc ribe for 

the genera l good of the whole.**

This quota tion app ears to be consistent with Justice Miller’s co nception 

that state rat her than fcdcrul citizenship c arries with it the fund ame ntal 

rights tha t anteda ted the Constitution. In his dis,sent, however, Justice 

Bradley blasts this notion by the simple process of continuing the enu ­

meration of fundam enta l privileges and imm unities from the Corfield 

opinion at the point where Justice Miller stopped: "the right o f a citizen 

o f one Stale to pass throu gh, or to reside in. any oth er State for pur ­

poses of trade, agriculture , professional pursuits, or otherwise . , ,

This right certainly owed its existence to the federal con stitutio n rather 

than to sta te citizenship; the Co urt had so held only five years before in 

Crandall v. Nevada.'2 Indeed, Justice Miller brazenly cited and quoted 

from tha t very case in ano the r connection .”

(3) At page 72 of 16 Wallace , Justice Miller asserted: “ The first 

section of the fourteenth article, to which our atten tion is more specially 

invited, opens with a definition of c itize nship—not only citizensh ip of 

the United States, but citizenship of the Sta tes. No such definition was 

previously found in the Constitution, nor had any attem pt been made 

to define it by act of Con gress.’’’4 This is a rem ark able asserti on, be89. Id. at 117-18.

90. Id at 76. ,

91. Id. at 117 (emphnsis added).

92. 73 U.S. (6 Wall.) 315 (1867) (majority opinion by Miller. J.).

93. 83 U.S. (16 Wall.) at 79.

94. Id at 72.
151

cause the 1866 Civil Rights Act was on its face an attem pt by Congress 

to guara nte e certain privileges of United Sta tes citizenship to the recently freed slaves.”

Disputes have arisen over the exact purposes tha t the fourteenth 

amend ment was intended to serve. At least one great Justice of the 

Supreme Co urt has ente rtai ned dou bts abo ut whether the fram ers intended to c rea te substan tive due p rocess.” Othe rs have doubted w hether 

corpo ration s arc “ pers ons” within the mea ning o f the am end me nt’s due 

process and equal protection clau ses.17 Moreover, the Court has divided 

alm ost evenly on the question whether the fourteenth amendment “ incorporate s” the first ten, com monly known as the Bill of Rig hts.” In 

add ition, despite the explicit request of the C ourt in its ord er for reargument of Brow n v. Boa rd o f Education, counsel were unable to find 

conclusive evidence one way or the other on the question whether the 

framers regarded racial segregation as a form of racial discrim ination.” 

On one point, however, there has been no disa greeme nt at all. The 

fourteenth amend ment had its genesis in cong ressional dou bts whether 

the thirteent h amend ment provided a sufficient constitutio nal basis for 

the 1866 Civil Rights Act—doubts tha t had led Presiden t Andrew Johnson to veto the bill, which was thereupon enacted over his veto. Thus 

the desire of Congres s to legitimate the 1866 Act nriay be regarded as 

the “ first cau se” of the fourteenth ame ndm ent, which was designed to 

elim inate any question as to the power o f Congre ss to enact it. Yet only 

seven years later we see Justice Miller denying tha t such a statute was 

ever enacted .

The purpose of revealing the shabbincss of the Co urt's reasoning

95. The IR66 Civ il Rights Acl provided in pertinent pnrt: “Tha t all persons horn in the

Uniled States and not subject to any foreign power, excluding Indians not taxed, arc hereby

declared Io he citizens of the IJeilcd States; and such citizens, of every race and color, without

regard to any previous condition of slavery or involuntary servitude, except as a punishment for

crime whereof the party shall have been duly convicted, shall have the same right, in every State

and Territory in the United Slates, to make and enforce contracts, to sue. he parties, and give

evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full

and equal benefit of all laws and proceedings for the security o f person and property, as is enjoyed

hy white citizens, and shall be subject to like punishment, pains, and penalties, and to none other,

any law. statute, or ordinance, regulation, or custom, to the contrary notwithstanding." Act of

April 9, 1866. eh. 31. 5 I. ,4 Stat. 27 (codified in scattered sections of 42 U.S.C.).

96. Eg.. Whitney v. California. 274 U.S. 357. 373 (1927) (Brandeis, J., concurring); cf.

Munn v. Illinois. 94 U.S. 113 (1877).

97. Eg.. Connecticut Gen. Life Ins. Co. v. Johnson, 303 U.S. 77, 85 (1938) (Black. J.,

dissenting); tee Gra ham . The "Conspiracy Theory" o f the Fourteenth Amendment. 47 Y ale L.J.

371; 48 Y ale L.J. 171 (1938) (2-part article).

98. Eg.. Duncan v. Louisiana, 391 U.S. 145 (1968): Adamson v. California, 332 U.S. 46

(1947).

99. 347 U.S . 483. 489-90 (1954).
1 5 2

i n t h e Sl a u g h t er- H o u s e C as e s i s n ot t o bl a c k e n t h e m e m or y of J u sti c e 

Mill e r a n d hi s f o ur a s s e nti n g br ot h er s. W c m a y a s s u m e t h at t h eir d e c a pit ati o n of t h e f o urt e e nt h a m e n d m e nt — b y stri p pi n g it of n e arl y all it s 

clli c a c y a s a s o ur c e of c o n gr e s si o n al p o w er — w a s m oti v at e d b y t h e 

hi g h e st p atri oti s m. B y 18 7 3 t h e a b oliti o ni st cr u s a d e h a d n e arl y p et er ed 

o ut, a n d t h e a b u s es c o m mitt e d i n t h e sl at e s of t h e q u o n d a m 

C o nf e d er a c y b y f e d er al tr o o p s a n d c ar p et b a g g er s w a s a f e st eri n g n ati o n al s c a n d al."* F ull a n d f air eff e ct u ati o n of t h e f o urt e e nt h a m e n dm e nt, i niti at e d b y r a di c al R e p u bli c a n a b oliti o ni st s a n d r atifi e d o nl y 

u n d er d ur e s s,” ' w o ul d h a v e m e a nt l e giti m ati o n of a n y l e g al a d v a nt a g e s 

wit h w hi c h a c orr u pt. C o n gr e s s a n d a w e a k Pr e si d e nt mi g ht el e ct t o 

e m b elli s h f e d er al citi z e n s hi p — <*.£., i m m u nit y fr o m st at e a n d l o c al t a x e s 

or i m m u nit y fr o m arr e st b y st at e a n d l o c al p e ac e offi c er s. T hi s w as 

d o u btl e s s t h e r e a s on w h y t h e Sl a u g ht er- H o u s e C as es, u nli k e t h e t hr e e 

ot h er “ s elf-i nfli ct e d w o u n d s” li st e d b y C h arl e s E v a ns H u g h e s,” pr ov o k e d n o st or m of p u bli c pr ot e st. Y et t h e e n or mit y of w h at t h e C o urt 

di d i n 1 87 3 w a s p u bli cl y a c k n o wl e d g e d e v e n b y a Ri c h m o n d, Vir gi ni a, 

l a w y er, o n e Willi a m L. R o y al,, w h o se str u g gl e t o r e c o n cil e hi s s ati sf a cti o n at t h e r e s ult wit h hi s k n o wl e d g e a s a l a w y er t h at vi ol e n c e h a d b e en 

wr e a k e d o n t h e C o n stit uti o n w a s e x pr e ss e d i n a n 1 87 8 arti cl e a p p e ari n g 

i n t h e S o ut h er n L a w R e vi e w.

T h e n ee d f or a c o n gr e s si o n al a m n e st y pr o vi d e s a n a p pr o pri at e o e1 0 0. C. V. W o o d w a r d . Re u ni o n a ni » R e a c ti o n 1 5 ( 1 9 5 1).

1 0 1. 2 J. D a vi s , T ii f Ri s e a n d Fai o r t h e Co n e f d e r a t f Go v e r n m e n t 6 2 1- 2 2 ( 1 8 8 I); 

L. O r f iii , T ii f Am e n di n g o f tii f Fe d e r a l Co n s ti t u ti o n 7 1, 7 5- 7 4 ( 1 9 4 2): H olifi cl d. S e ce s si o n 

. . . a Ri g h t R e s er v e d h v t h e St al e st, I S K y. S. B. J. 1 6 0, 1 7 1- 7 3 ( 1 9 5 4 ).

1 0 2. S e e n ot e 6 9 s u pr a a n d a c c o m p a n yi n g t e xt,

1 0 3. “ T h e tr ut h i s. w h e n t hi s n m e n d m e nt fir st e n m e b ef or e t h e S u pr e m e C o urt f or c o n str u cti o n. t h e mi n d s o f p atri oti c m e n w er e fill e d wit h al ar m nt t h e c e ntr ali zi n g t e n d e n c y of t h e g o v er nm e nt. T h e pr e si de nt of t h e U nit e d St at e s w a s h ol di n g a h alf- d o z e n sl at es u n d er t h e ar m e d h e el of 

milit a r y d e s p oti s m; t h e C o n gr e s s o f t h e U nit e d St nt c s w a s i n di c ati n g it s di s p o siti o n, str o n gl y a n d 

m or e str o n gl y nt e a c h s u cc e s si v e s e ssi o n, t o e n cr o a c h u p o n t h e r e s er v e d ri g ht s of t h e sl at es; a n d 

t h o se w h o wi s h e d w ell I o t h eir c o u ntr y l o o k e d wit h s orr o wi n g e y es u p o n t h e pr o s p e ct t h at t h e 

a n ci e nt l a n d m ar k s o f t h e st at e s w er e t o yi el d b ef or e t h e a d v a n ci n g stri d e s of a n i m p eri al d e s p oti s m. 

N o o n e c a n d e n y t h at t h e di s p o siti o n of t h e m aj orit y of t h e c o urt t o p ut s o m e c o n str u cti o n u p o n 

t hi s n m e n d m e nt w hi c h w o ul d c ur b t h e pr o gr e s s of F e d er al p o w er w a s a m o st p atri oti c o n e. B ut 

w a s it wi se ? C a n it e v er b e wi s e f or t h e c o urt t o f or c e a m e a ni n g u p o n t h e l a n g u a g e of t h e 

C o n stit uti o n, t o a v ert a f n n ei e d or t hr e at e n e d d a n g er ? It i s t h e gl or y a n d pri d e of t h e i n stit uti o n s 

of t hi s g o v er n m e nt t h at t h e y h a v e s u cc e s sf ull y wit h st o o d e v er y str ai n t o w hi c h t h e y h a v e b e e n 

s u bj e cte d; a n d t h e b eli ef t h at t h e y ar e e q u al t o w h at e v er str ai n m a y b e i m p o s e d u p o n t h e m i n t h e 

f ut ur e i s t h e h o p e a n d c o mf o rt of t h o se w h o c h eri s h t h e m. W o ul d it n ot. t h er ef or e, h a v e b e e n t h e 

p art of wi s d o m, w h at e v er f a n ci e d d a n g er mi g ht h a ve fl o w e d fr o m gi vi n g t hi s n m e n d m e nt a lit er al 

c o n str u cti o n, t o gi v e it t h at c o n str u cti o n, a n d l e a v e it t o t h e i n stit uti o n s t h e m sel v e s t o c ur e t h e e vil s 

w hi c h fl o w e d fr o m it at t h e b all ot- b o x ?*’ R o y all, T he F o u rtee nt h A m e n d m e nt: T he Sl a u g hterH o u se C as es. 4 So u t h e r n L. R e v. ( n e w a eri e a) 5 5 8. 5 7 6- 7 7 ( 1 8 7 8).
1 5 3

e nsi o n f or t h e eff ort t o i n d u c e r e c o nsi d er ati o n of t h e Sl a u g ht cr-l/ o us e 

i nt er pr et ati o n of t h e pri vil e g es or i m m u niti e s cl a us e of t h e f o urte e nth 

a m e n d m e nt. Il is s u b mitt e d t h at t h e ti m e h as n o w c o m e t o r e p u di ate 

t h e Sl a u g ht er- H o us e d o ctri n e a n d t o r e c o g ni z e t h e f o urt ee nt h a m e n dm e nt's pri vil e g es or i m m u niti es cl a us e as t h e s o ur c e of c o n gr essi o n al 

p o w er it w as i nt e n d ed t o b e.

I V. r o p o s a l s f o r Co n g r e s si o n a l Ac ti o n

• H a vi n g c o n cl u d e d t h at t h e Pr esi d e nt h as f ull cl e m e n c y p o wer wit h 

r es pe ct t o f e d er al off ens es a n d t h at C o n gr ess pr o b a bl y is e m p o w er ed t o 

gr a nt a m n est y t o st at e as w ell as f e d er al l a w vi ol at ors if a n ati o n al 

i nt er est will t h er e b y b e s er v e d, l et us t ur n fr o m pr o bl e ms of t h e e xiste n c e 

of t h e a m n est y p o wer t o pr o bl e ms of h o w t h e e xisti n g a m n est y p o wer 

s h o ul d b e e x er cis e d. M y o wn vi e w is t h at t h e p u bli c i nt er est will b e 

s er v ed b etter b y br o a d r at h er t h a n n arr o w a m n est y, b y e arl y r at h er t h a n 

d el a y e d a m n est y, a n d b y a m n est y gr a nt e d wit h o ut c o n diti o ns d esi gn e d 

t o h u mili at e or p u nis h, or t o e q u ali z e t h e b ur d en of n ati o n al s er vi c e.’ *

S u c h a n a m n est y will r e q uir e p oliti c al c o ur a g e of a hi g h or d er. T h er ef or e, I b eli e v e t h at C o n gr ess, at a mi ni m u m, c a n a n d s h o ul d s h o ul d er 

p art of t h e p oliti c al r es p o nsi bilit y b y a c o n c urr e nt r es ol uti o n affir mi n g 

its a p pr o v al a n d s u p p ort of w h at e ver a m n est y t h e Pr esi d e nt t hi n ks t h e 

p u bli c i nt er est d e m a n ds. T his is t h e l e ast t h at C o n gr ess c a n d o, or at 

a n y r at e it is t h e l e ast t h at I t hi n k C o n gr ess s h o ul d d o.

A n a m n est y st at ut e w o ul d c o nstit ut e a n ass u m pti o n of f ull p oliti c al 

r es p o nsi bilit y b y C o n gr ess. It als o w o ul d c o nstit ut e t h e m ost a ut h orit ati v e e x pr essi o n of t h e will of t h e A m eri c a n p e o pl e, a c o nsi d er ati o n 

w h os e v al u e we h a v e pr e vi o usl y n ot e d.’ *

T o a v oi d a n y li n g eri n g c o nstit uti o n al d o u bt, a n d t o a v oi d t h e t y p e 

of wr a n gli n g b y c o nstit uti o n al e x p erts t h at d el a y e d e n a ct m e nt of t h e 

1 9 6 4 Ci vil Ri g hts A ct, t h e eff e cti v e n ess of a c o n gr essi o n al a m n est y 

mi g ht b e m a d e c o n di ti o n al u p o n affir m ati v e pr esi d e nti al a cti o n. T h e bill 

mi g ht sti p ul at e, f or e x a m pl e, t h at it w o ul d n ot b e c o me l a w u nl ess t h e 

Pr esi d e nt si g n e d it, or a p pr o v e d it b y l at er p u bli c pr o cl a m ati o n.’ "* P oliti1 0 4. A s t o p u ni s h m e nt i n t h e c a s e o f ar s o ni st s a n d ot h er s eri o u s off e n d e r s, I s e e n o o bj e cti o n 

t o i m p o siti o n of c o n diti o n s d e si g n e d f or s o ci et y’ s pr ot e cti o n — t h a t i s, c o n diti o n s c o m p ar a bl e t o 

t h o s e or di n a ril y sti p ul at e d b y pr o b ati o n n n d p a r ol e h o a r d s. A s t o e q u ali z ati o n o f b u r d e n, s e e n ot e 

5 4 s u p r a.

1 0 5. S e e l e st f oll o wi n g n ot e 2 7 s u pr a.

1 0 6. T hi s e x pr e s s li m it a ti o n w o ul d m o dif y t h e n o r m al pr o c e d ur e pr e s c ri b e d b y nrti cl c I, § 7, 

cl a u s e 2 o f t h e C o n stit u ti o n, w hi c h all o w s a hill t o b e c o m e l a w wit h o ut t h e Pr e si d e nt’ s si g n at u r e If 

hr d o r s n o t r et u r n II wit h hi s o bj e cti o n s wi t hi n 1 0 d a y s — S u n d a y s e x c e pt e d — aft er it h a s b e e n 

pr e s e nt e d t o hi m a n d 1/ C o n g r e s s d o e s n ol pr e v e n t It s r et u r n b y t h eir a dj o u r n m e nt. S e e Mill e r,
154

tal ly, such a cond ition would be of limited importance in view of the 

unlikelihood tha t the bill would pass at all without support from the 

White House.

It may be said tha t a concurr ent resolution a pproving a p resid ential 

amnesty or a s tatute expressly gran ting amn esty would be p rem atu re at 

the present time because the war is still being fought. Perhap s this is 

so, although the objection might be at least partially obviated by a 

provision delaying the effective dat e of the amn esty until the Presiden t 

proclaims that hostilities have ended or have been reduced to such a 

level as to justify the effectuation of amnesty. Even if imm ediate clem ­

ency is deemed prema ture, however, there is stjll grist for the con gres ­

sional mill. It is certainly not too soon to prov idethe Presiden t with all 

the authority he needs for a full and effe ctiv e'am nesty covering both 

state and federal offenses, even though he may decide not to exercise it 

imm ediately. Congress has followed this course before. For exam ple, 

the Presiden t was vested with authority to fix prices, wages, and rents 

long before he saw fit to do so .” 7 Co nsequently, when the time did come, 

he was in a position to act without dela y for cong ressional action. 

Sim ilar adv anta ges of prompt executive actio n could flow from legislation auth orizing a comprehensive amn esty capable of removing all federal and state political and civil disabilities incurred because of opposition to the war in Sou the ast Asia. 1**

As of April 1972, most political observers believe th at action during 

the current session of Congress is unlikely. They arc probably right, 

unless an early end to the war and a rep atriation of prisoners produces 

a drastic swing in public opinion within months or weeks. On a subject 

so comp lex, however, any actio n by Congres s may need lime for public 

opinion to crystali/.c—for the polls, official and unofficial, to tak e the 

pulse of the natio n. Whether or not the present Congress can rightly

Congressional Power To define the Presidential Pocket Veto Power, 25 V a n i,. L. Rev. 557

(1972): Note, The Presidential Veto Powerg: A Shallow Pocket. 70 M in i. L. Rev. 148 (1971).

Moreover, even if one President refused to sign the bill or expressly vetoed it, his successor could

still activate it by a later public proclamation.

107. Economic Stabilization Act of 1970. 12 U.S.C . § 1904 (1970).

108. The foregoing objectives could be accomplished by congressional adoption of the following amnesty bill, which was developed by the author in collaboration with his seminar in

drafting at the Columbia Law School. There is no claim that it is superior to some of the bills

now pending, particularly the Ahzug bill, but it does embody some ideas not yet reflected in any

of the bills thus far introduced.

A RIL L

To provide amnesty for certain persons who hnve illegally manifested their opposition to

participation in the Southeast Ada Wa r: Io approve and authorize amnesty or mitigation of
155

claim dia l the amnesty issue is unripe, the next one ought to he made 

ready for action by being told in unmistakable terms exactly what action 

the electorate desires. Therefore, every American should consider carefully what the national interest demands and make his views known. 

This is no lime for evasion, procrastination, or silence. Whatever we do, 

let us do it because we believe it is right—not because we lack the 

energy, the intelligence, and the courage to think and to speak out.

punishment for certain additional classes of such persons: and to provide for restoration of civil

and political rights that have been lost or impaired by reason of such illegal acts.

Re il enacted hy the Senate and Un iat of Representatives o f the United Slates o f America In

Congress assembled:

$ I. DrAnitlmts.

(at The term “cessation of hostilities'* means the date on which the President shall declare,

b\ public proclamation, cither thnt armed hostilities in Southeast Asia have ended, or that the level

of the (Joiicd States involvement therein has been reduced to such a level ns to justify the effectuation of Section 2 of this Act.

(b) The term "person" means any natural or artificinl person, including the United States,

the several states, and other corporations public, municipal, charitable, or private.

(c) The term "offender" means a natural person who has violated federal or slate law solely

or partly because of his disapproval of United Slates participation in the Southeast Asin war.

(d) The term “ non-violent offender" means an bffender whose offense has involved neither

iniurv Io another person nor substantial damage to or theft of the property of another person, nor

the threat thereof nor attempt thereat.

(c) The term "federal offender" menns an offender whose offense has been a violation of

the law of the United Slates or nny territory or possession thereof, or the District of Columbia,

including the military law. and Including offenders whose punishment hns already been completed.

(0 I he term "stale offender" means nn offender whose offense hns been a violation of the

lass «d ans state or subdivision or municipality thereof. Including offenders whose punishment has

abends been completed.

(g) I he term "during the Southeast Asin W ar " means the period beginning August 10, I9 M .

nnd ending with the cessation of hostilities.

$ 2. Amnesty for draft resisters and certain m ilitary offenders.

(a) Any non-violent offender whose offense hns consisted of violation of the Selective Service

Act or any regulation thereunder, and whose offense has occurred during the Southeast Asia Wa r,

is hereby pardoned.

(b) Any non-violent offender whose offense has consisted of violation of the military law of

the United States of America, and whose offense has occurred during the .Southeast Asia War

(whether or not it has occurred in Southeast Asia), is hereby pardoned unless such violation has

consisted of desertion under such circumstances ns to endanger directly the life of another member

of the armed services of the United States or its allies.

(c) This section 2 shall be ineffective unless the President of the United States shall have

declared his affirmative approval, hy signing this bill or by public proclamation, and in any event

shall be effective only upon the cessation of hostilities.

§ 3. Approval and autho rization of amnesty for other offenders.

(a) The Congress declares that the interests of the United States require the restoration of

domestic harmony at the earliest time; that such interests will be served by the annulment of all

legal disadvantages that have been incurred or suffered by reason of opposition to the Southeast

Asia War. to the greatest extent consistent with national security and the preservation o f internal

order: and that it is an immunity of citizens of the United States (within the meaning of Section I

of the Fourteenth Amendment to the Constitution of the United States) to enjoy such annulment.
156

Io the extent nnd on the conditio n*. if nny, thnt mny be nulho rized or imposed by the President of

the Un ite d State *.

(h) Th e Congress expresses its approval of such amn esty or mitiga tio n of punishment for

federal offenders other than those described in Section 2 (nnd also for those described in Section

2. unless nnd until thnt section shnll become effective) as the President of the United Stales may,

from tim e to tim e, grant by public proc lamation, unconditio nally or on such cond itions as he may

prescribe.

(c) Th e President of the United States is autho rized to restore the United States citizenship

of any or all persons who have relinquished such c itize nship for the sole or p artia l reason tha t they

have opposed the Southeast Asia W ar.

(d) Th e President of the United States is fu rth er autho rized to g rant, by public proc lamation,

amnesty or mitig ation of punishment to state offenders whose offenses have occurred during the

Southeast Asia W ar.

(e) Any gra nt of amnesty pursuant to this Ac t shall have the effect of restoring all civ il and

political rights that have been lost or im paire d by reason of the vio latio n for which amnesty is

granted, unless the President of the United States shall otherwise declare in his pu blic p rocla mation

granting such amnesty.

I 4. Sho rt title. Th is Act shall be known as “ Th e Southeast Asia W a r Am nesty A ct."

§ 5. Effective date. Except as provided in Section 2(c ), this Act shall be effective im med iately.
157

Mr. Kastenmeier. The Ch air announces th at th ere are a numb er of 

people who have statem ents which will be beneficial to this com mittee 

and the record. Without objection, the y will be received and included 

in the p rin ted record. They may be filed n ot la ter than 10 d ays following the las t day of hearings, whi ch will be on W edn esday of next week.

I would like to express the fac t we a re runn ing beh ind in both our 

que stio ning and our testimo ny, p ossibly cau sing us to miss o ur goal of 

con cluding with six witnesses th is m orning.

In any event, our next witn ess is M r. W alter Morse, General Co unsel of t he U .S. Selective Service System.

Mr. Morse, we welcome you. You have a relatively short statem ent 

and you may proceed, i f you will.

TEST IMON Y OF WA LTER H. MORSE. ESQ., GEN ERA L COUNSEL, U.S.

SELECT IVE SERV ICE ; ACCOMPANIED BY GLENN BOWLES, MANAGER OF OPERATIONS ; HOPKI NS CHARLES. DEP UTY GEN ERA L

COUNSEL; AND S. R. SHAW, L. & L. OFF ICER

Mr. Morse. Mr. Ch airma n, members of the subcomm ittee, it is a 

privilege fo r me to ap pe ar this mo rning, bu t before I sum marize my 

statem ent , I would like to introd uce my colleagues.

On my left is Mr. Sha w, our L. & L. Officer; and on my imm ediate 

rig ht is Mr. Bowles, the Ma nager of Op era tio ns for the Selective 

Serv ice Sy stem ; and on my fa r righ t is De puty Gener al Counsel, 

Mr. Cha rles.

I sha ll attempt to s ummarize m y sta tem ent as you sugg ested. Then, 

I hope we can answer any questions th at yo u migh t have.

As you noted from my state me nt, I will not address the legal aspects 

of amn esty. The De pa rtm ent of Justice has done th at. However, as a 

matter o f policy, th e ad mi nis tra tio n opposes th e H ouse bills th at g ra nt 

amn esty. I shall attempt to sta te the basis fo r this opposition.

How ever, befo re doing so, I th in k we should recognize the scope of 

the problem. W e are sp eak ing specifically of section 12 of the M ili tary 

Selective Serv ice Act, and we are talki ng o f such vio lations as failu re 

to reg ister or m aking false statem ents rega rd ing o r bearin g u pon one’s 

classification or fai lure or refusal or neglect to perfo rm duties pu rsuan t to Selective Service Act, such as a failu re to repo rt or sub mit to 

induction. T hese are the vio lation s we a re s peaking of. U nd er the M ilita ry Selective Serv ice Act a person who commits such a vio lation can 

be subject to 5 years imprison me nt or $5,000 fine or bo th.

W hat is the point of reference for thes e crim es ? As the bills point 

out. it is from Augus t 4, 1964 to December 29, 1972, the last day in 

which a reg istrant was ind uct ed invo luntarily into t he arm ed forces.

So, the refore , we a re not talk in g about amnesty for those who hav e 

vio late d the law since then. For your infor ma tio n, since t he M ilitary 

Selective Serv ice Act is p erm ane nt law, in 1973 I refer red 3,492 vio lations for failu re to reg ister or reg ister tim ely. We are n ot addre ssing 

amn esty for these violators.

Th e exten t of the prob lem du rin g the Vietn am conflict is th e Sy stem ’s ind uct ion of over 1.8 million men. In iti al ly , 191,840 regi stra nts 

failed to respond. How ever, ou r records show th at o ver 80 per cent of 

these reg ist rants responded when con tacted t he second tim e or maybe
158

the th ird time. The rem ain der who failed to respon d du rin g thi s 

period was 19,271 who were ind icted o r pu t u nd er crim ina l com plaint.

How ever, before sta nd ing tria l, 10,153 o f thes e vio lators had their 

ind ictme nts dismissed for the most pa rt for the reason th at the y too 

sub mitted to induction or upon an F B I inv estiga tion i t was fou nd that 

th eir vio lati on was not willfu l. Of the rem ain ing 9,118, 1,186 were 

acq uitted while 7,932 were convicted . Of these 3,971 were incarc era ted 

while 3,961 were pu t on pro bation . As to those inc arc era ted , 384 received the maximum sentence of 5 years while the average sentence 

ran ged fro m a hig h of 37.3 months in fiscal year 1968 to 17.5 months 

in fiscal year 1973. As of Ja nu ar y 16, 134 still rem ain in pris on. Ho wever, even o f those who were inc arc era ted , 76 were p aro led in the armed 

services and 5 into a lte rnate service.

It also is int ere sting to note th at in fiscal y ear 1972, f or example, 61 

percent o f those i nca rce rated were released on p arole a fter serving only 

41 perce nt of their sentence. Prese ntly, only a ha nd ful of convicted 

vio lators are b eing incarc era ted af te r conviction and in one instance a 

court of app eals rem and ed a case to the distric t court with instr uc ­

tions to v acate th e conviction upon completion of a parole in the Arm ed 

Forces. In addit ion to the 7,932 convicted violato rs, as of Ja nu ar y 1, 

1974, there were 5.119 vio lato rs under ind ictme nt and anoth er 3,080 

under p rose cutive determination or an FB I investiga tion. Of thi s tota l 

numb er of 8,199, approx im ate ly 4,400 are f ugitiv es, of which it is estimated th at 3,000 are in Canad a, 500 overseas, and the whereabouts of 

the rema ini ng 900 is unknown. In sum then, we are speaki ng of a ma ximum numb er of less than 17,000 vio lato rs who could be affected by a 

bla nket or general amn esty , should such acti on ever be taken.

This, as you can see, is less th an 1 percen t of the 1.8 million who 

were inducted.

Mr. Kastenmeier. If I may interrup t, actua lly , the re are man y 

oth ers who would be affected by this legisla tion , are t here not ? Those 

who were convicted would be affected ?'

Mr. Morse. Those conv icted would be affected.

Mr. Kastenmeier. And other catego ries quite a pa rt from the 17,000?

Mr. Morse. No. The 9,000 convicted violato rs, plus the 5,000 under 

ind ictme nt, plus the 3,000 under prosecutive de termi natio n make 17,000. 

Th e 9,000 convicted, the 5,000 still under ind ictme nt, and the 3,000 

under prosecutiv e review or F B I inv estigation add up to ap prox imately the 17,000 tha t could be affected by amnesty.

Mr. K astenmeier. All r igh t. You m ay proceed.

Mr. Morse. All rig ht, sir.

As you are awa re, and I know one of your witnesses will speak to 

the h istory of amne sty for dra ft evaders, bu t l et me just mentio n that 

only twic e in our h istory have dra ft ev aders been gran ted amn esty by 

the Presi dent, once in 1933 and once in 1947, and in b oth in stan ces only 

1,500 received amn esty , and in both instance s they were conv icted 

vio lators who had served th eir sentences.

Now, as to the basis for our opp osition to amn esty, I think there is 

a mi sunders tan din g as to whether or not thes e ind ivi duals who are 

vio lators and perha ps fug itiv es were entitled and did receive justice 

at the hands of the local dr af t boards, as they would hav e you believe 

they did not. Th is question specifically relates to the conscientious objector aspe ct of the problem. In this rega rd you are all aware of the
159

See ger and TFeZcA decisions. Both these decisions af te r the tim e the y 

were issued were imm edia tely imp lem ente d by the Selective Serv ice 

System. The Seeger decision was given effect by an Op era tio ns Bu lletin issued on March 12, 1965. A fter the IFelch decision local boa rd 

memorand um No. 107 was issued on Ju ly 6, 1970.

You are also aware, I am sure , th at we took no acti on with respect 

to the selective conscientious objecto r, the ind ividual who refused because he felt the Vietnam wa r was immoral, bu t he was willin g to 

accept the fact that not all wars are imm oral . Thus, we followe d the 

Supreme Co urt decision in Gillette and Negre in not giv ing any recognition to this type o f a CO.

Fo r the benefit of the chair ma n and the mem bers of the subcommittee, let me po int out th at in view of the actions taken by Selective 

Service, no tw ith sta nd ing Gillette, the local board s did recognize conscien tious objectors’ claims. Between Ju ne of 1964 and Ju ne of 1973. 

145,807 reg ist rants were classified as CO ’s.

The second basis on which we oppose amn esty is we too are concerned about the divisivene ss in the c ountry, and since we a re dea ling 

with a person who fai led to report for induction or comm itted anoth er 

vio lati on, we hav e to recognize t ha t the re are 1.8 million who did serve 

th eir cou ntry. Pe rh ap s it can be said they can become a divisiv e element.

Lastly, and I think most im po rta ntly, is the effect on the System 

should amnesty be gra nte d. As Dr. Cu rti s T arr sta ted in Fe br ua ry 

1972, “A ny widespread pro gra m of amn esty would be inc ompatible 

with the continuation of ind uct ion s.” Th is certa inly applies to the 

futur e. An y general amn esty would be a signal to those in the fu ture 

if we shou ld ever have to go back to inductions, and God for bid , th at 

the y, too, mi gh t be able to evade th eir responsibilitie s and obtain 

amnesty.

Also, with respect to the effect on the System, if amn esty is to be 

gran ted to these pas t violators, wh at abou t the violation s occurring 

rig ht this mom ent, th at is, th e pers ons who fail to reg ister? Are the y 

too to get amnesty next year or th e year af te r, just because the re may 

be n umerous vio lato rs?

In s umma ry, I h ope I have shown t hat those who would qu ali fy f or 

amnesty are few in num ber, his tor ica l prec edent and inequity would 

dic tat e again st the gr an tin g of amnesty, and las tly , the dis rupti ve 

effect in the future on the Selective Serv ice System of prov idi ng a mnesty to those who refused ind uct ion into the arm ed services could be 

fa r reac hing .

Th is concludes my statem ent, Mr. Ch airma n, than k you.

Mr. Kastenmeier. Than k you, Mr. Morse.

Of course, Dr. Tar r, who is from Wis consin, made th at statem ent 

2 ye ars ago when there was a c ontinuation of in ductio ns, and now the 

situatio n has somewhat changed .

I assume t ha t if con sulted by the Presi dent in connectio n with an ything he migh t do, you would pre sen t the same arg um ent to h im for 

his co nsider atio n th at you would to a co ngre ssional com mittee ; is that 

correct ?

Mr. Morse. Th is position has been clea red by the admi nistr ation, 

yes, sir.
160

Mr. Kastenmeier. Is it your view tha t past amnesties, however, 

limited or deferred they were, worked to undermine the Selective 

Service System ? I am talking about World War I or World War II 

amnesties in connection with draft violations. Did this have the effect 

of undermining your operation ?

Mr. Morse. No, sir, because I think we are speaking of two different 

situations. In World War I and World War II, amnesties were 

granted as a result of a board’s review of cases, and I think you will 

find that in each instance the number was small and I think you will 

find also—I think Mr. O’Neil will probably bear this out—that many 

of the Truman pardons dealt with Jehovah Witnesses or individuals of 

that type.

Second, they were all convicted violators and they all had served 

their sentence. We are not talking about that situation here. That is 

why I think there is a distinction, I think it would become quite disruptive to the System in the future because we are not dealing with 

the same situation.

Mr. Kastenmeier. Would you not concede tha t the low number of 

violators arising out of World War IT and the large number of violators arising in more recent years during the Vietnam war was in 

part a result of the view of the war which was held by so many? We 

are dealing with a great many people and that has to do with how the 

war was generally perceived; is that correct?

Mr. Morse. I think the record will show there were many violators 

in World W ar I and II. I do not have those specific figures. But I do 

not think anybody can take the position they were few in number.

Mr. Kastenmeier. You use the term few in number with respect to 

those considered by the Amnesty Board.

Mr. Morse. That is correct, few in number who were granted 

amnesty, 1,500 in each instance.

Mr. Kastenmeier. I do not think anyone has suggested in terms of 

the legislation tha t violations for nonregistration under current laws 

be affected; is that not the case ?

Mr. Morse. That is correct, sir. I was merely making the point that 

if we grant amnesty here, what do we do 2 years from now with respect 

to those who fail to register now ?

Mr. Kastenmeier. Do you agree, though, they would not have a 

basis of resisting an unpopular war as a basis for their amnesty? Presumably, there must be some basis for it which would not be the case 

for violations which might presently occur.

Mr. Morse. I think if you will read the literature of those who 

oppose the dra ft in any form, you will find that they feel tha t even 

registering is a sign of involuntary servitude and individuals that do 

so should be discouraged.

Mr. Kastenmeier. That may be the view of some, but whether tha t 

becomes public law is something else, of course.

I would like to yield to the gentleman from Massachusetts, Mr. 

Drinan.

Mr. Drinan. Thank you very much.

On page 4, you state, “It is also interesting to note tha t in fiscal year 

1962, 61 percent of those incarcerated were released on parole after 

serving only 41 percent of their sentence.” Are you suggesting special 

treatm ent was given to draft evaders in Federal prisons?
161

Mr. Morse. No, sir , I was ju st p ointing that out as a fac t.

Mr. D rin an. Is that better or worse th an arm ed robb ers ?

Mr. Morse. Excuse me, sir ?

Mr. Drin an. Is it bette r or worse than arm ed robbers, 61 percen t 

wore released af te r servin g only 41 perce nt of th eir se ntence?

Mr. Morse. I think the Pa role B oard could answer that question.

Mr. Drin an. It is interest ing , bu t wh at does it mean ?

Mr. Morse. I think it means the i ndivi duals were no t ke pt in priso n 

fo r the ir tot al sentenc ing.

Mr. Drin an. They were, in fac t, given special t reatm en t?

Mr. Morse. I do not know.

Mr. Drin an. I am ask ing you why you pu t the sentence in. It is 

intere sting, but is it significant ? If you are su ggesting they did receive special tre atmen t and th at is the o nly 'reason for havin g th at in there, the n you are un de rcuttin g your arg um ent and the y do d eserve special 

tre atmen t an d you seem to p raise wh at is h ap pe nin g here.

Mr. Morse. No, the B oard of Pa role did p ut them on parole witho ut 

servin g th eir full sentence, and that is the ar gume nt.

Mr. Drin an. Th ere is no arg um ent. I do not know wh at you are 

talking about. It would be good if you delete it or mak e it say 

something. Do I un derst and as of J an uar y 16, 1974, th at 134 are s til l in prison ?

Mr. Morse. T ha t is correct.

Mr. Drin an. On page 8, you make this point, th at th ere were 145,807 

registr an ts who were classified as CO ’s from 1964 to 1973. How many 

denied th at statu s?

Mr. Morse. I would hav e to r efer this to Mr. Bowles.

Mr. Bowles. The System at t hat time had no capa bility of kee ping 

reco rd on tha t.

Mr. Drin an. You mean, you do no t even know ?

Mr. Bowles. No ; we would have to go back to every file.

Mr. Drin an. Th is figure of 145,000 does no t mean anyth ing . I do 

not know w het her it is good or ba d or ind ifferent, o r whe ther twice th e 

numb er were denied. We do not know what it means. I recall while rea din g t he Selective Service Dire ctor’s report in 1971 and 1972, and my recollection is th at t he numb er of peop le who were gran ted sta tus of CO ’s really escalated. Was th at t he res ult of law’ o r 

of policy ? I do not think it can be attri bu ted to Seege r an d WeZcA, bu t 

why did th at ha ppen ?

Mr. Morse. I do not know’ i f it e scalate d, b ut betw een 1964 and 1967, 

the number was pr etty stab le at 10,000. In 1968, it went to 13,000; in 

1969,14,000; in 1970,28,000; and in 1971,36,000.

Mr. Drin an. Pr et ty good e scalation. "Why ?

Mr. Morse. Well. 1 think two reason s: One, the size of the pool 

increa sed ; and two, the appli catio n o f the See ger and WcZcA decisions.

Mr. Drin an. B ut Seeger came dow n in 1965 and We lch came dow’n 

in 1970.

Mr. Morse. Th at is correc t, sir. So i t was in 1968,1969,1970, and 1971 

th at the incre ase start ed.

Mr. Drin an. Except tha t when did Gillette come down ?

Mr. Morse. Excu se me, s ir ?

Mr. Drin an. I n 1971. You say here sh arply restr ict ed the selective 

CO. How can you attribut e this to the law? It seems to me there was
162

more resistance in the cou ntry, and dire ctiv es went out lib era lizing in 

effect what the board s could do. So you were not really going on the 

law, it is my recollection, but on the public policy. More CO ’s were 

granted, from 13,000 to 36,000 ove r a period of 3 or 4 y ears . I do not 

think you can say that is att rib utab le to Weleh because Welch is sharply curtailed by Gillette.

Mr. Morse. T he System resp onded to both decisions in pu tti ng out 

bulletins reg arding the classification for CO’s. I have no oth er reason 

to believe that local boards did not follow those directions, and as a 

result more men were classified CO as the pool enlarged.

Mr. Drix ax. Excep t th at you also sent out a memo sharply cu rtaili ng t ha t in 1971, as I recall it. Th at said anybod y oppo sed to par ­

tic ipating in the Vietnam war is not entitl ed to CO status . So how 

can you say that the TFc/cA decision really caused the num ber of C O’s 

to doub le or triple?

Mr. Morse. You are spe aki ng pure ly of selective CO. T am speaking 

of the general CO ; in oth er words, lie qualifies pu rsu ant to the law 

passed by Congress and in ter prete d by the court.

Mr. Drin ax. You mean, all of a sudden the y belong to a religion 

which held th at war was wrong, and all of a sudden more people 

hap pen ed to show up who happene d to be Q uak ers? Rom an Catholics 

do not q ualify, do they ?

Mr. Morse. Seeger and Welch did not say that. The court did not 

relate the classification to a Sup rem e Being. It did the oppo site.

Mr. Drixax. I know th at abou t Welch. But Gillette tri ed to curta il that.

In any event, there were policy decisions en ter ing in where the 

whole thi ng was eased, and I th ink tha t is dem onstrable.

Le t me make one fu rthe r point. On page 8, you say less than 1 pe rcent of these people will be affected by th is situa tion.

Mr. Morse. That is correct.

Mr. Drin ax. It seems to me you are try in g to have it both ways. 

You tu rn aro und on page 8 and say we m ight have a tremendo us devisive element o f 99 perc ent. A re you really serious th at the 99 percent 

are going to be a div isive element ? Do you t hink the y will be a devisive 

elem ent to the 1 perc ent ?

Mr. Morse. T think so, sir. T served 4 years and every gentlem an 

here at this tab le also did , and I think many of us would feel that as 

an American.

Mr. Drix ax. Y ou also feel th at people should follow the ir conscience 

if th at is the wav th eir conscience leads them, and th e law provide s 

th at?

Mr. Morse. So long as it is within the fra me wo rk of the law ; yes, 

sir.

Mr. D rix ax. Wh at percent ? Tf the o the r gen tlem en are ge tti ng what 

the y are en titl ed to ?

Mr. Morse. If the P res ide nt should gr an t amnesty. I cannot see what 

effect it would have; but until he does, I cannot believe that most of 

these ind ividuals , this othe r 99 percent, would be in favo r o f amnesty.

Mr. Drix an. Have you seen any pub lic opinion polls lately ?

Mr. Morse. Yes, sir. I have.

Mr. Drix ax. The y are qui te the op posite of w hat yo u say.
163

On page 9, it seems t o me, you arg ue from his tor ica l preced ent and 

you assume the re th at historical preced ent has som ething to say. Bu t 

going b ack to the point made by the chairma n th at you are assu min g 

th at th e Vie tnam war is ju st like an y oth er wa r tha t we have had, the n 

it rea lly breaks down, does i t not? Hi sto ric al preced ent does not mean 

a thing because we ha ve never had a n ation in tur mo il like we have h ad 

over the Vietnam war? 1

Mr. Morse. I would say no, sir, we had a civil war.

Mr. Drix ax. Good point.

Bu t would you concede, tho ugh, absent tha t, th at you can not arg ue, 

really, t hat V ietn am is in a long line, and h istorical preced ent says we 

should not giv e amne sty ?

Mr. Morse. I do not thin k I concede th at , sir.

Mr. Drix an. Than k you.

Mr. K astenmeier. T he gen tlem an from New York, Mr. Smith.

Mr. Smith. Than k you, sir.

Mr. Morse, the chairma n asked a question abo ut those who failed 

to reg ister, and I think th at it is contended by some th at from 1964 

throug h 1972 there were hun dreds o f th ousan ds of youn g men who d id 

not reg ister and who should perha ps now be conside red for amnesty. 

Wo uld you comm ent on t ha t?

Mr. Morse. Yes, sir, I would be g lad to.

I think the sta tem ent is inco rrec t. Since Mr. Bowles the Sys tem ’s 

opera tions ma nag er is here tod ay, he can point out to you why th at 

sta tem ent is incorrect.

Bas ically, it is because ou r figures when com pared to the census 

figures would not prove tha t poin t.

Mr. Bowles.

Mr. Bowles. W e have been and are quite intere sted in reg istratio n, 

as you may be well aware. We have ha d observa tions, made by some 

th at we ha ve not been reg isteri ng a ll the y oun g men who are re quired 

to be registere d by law. No twith sta nding , when we made an analysis 

the population figure th at we can su pp ort com pares fav ora bly with 

th at we gathe red from the Cen sus Burea u. We have fou nd th at we 

have registere d more males th an the Apr il 1, 1970, census sta tistics 

indicate. How ever, when comp aring the total registr ati on s for the 

calen dar y ear of 1973 w ith the figures o f the 1970 census you find th at 

those men who were age 15 in the 1970 census, number appro xim ate ly 

2,053,000. Our reco rds fo r last mo nth, which was Ja nu ar y, ind icated 

th at based on Fe brua ry 5 figures wTe c ould expect 1,854,859 registr ations, which is 10 p erc ent short of t he census figure at th is time.

Nevertheless, since we h ave extended the registr ati on tim e in which 

to reg ister to 30 day s af te r a young man reaches his 18th birth da y, 

we a re certain th at we should account for more men in 1973 tha n the 

Census B ure au ha s given us.

I do not know all the reasons for the 10 percent shortage fo r 1973, 

but I know th at th ere are many in tan gib les to lie considered when co mpa rin g the total reg istrat ion s of a y ear gro up. There are men who are 

in the service when it is time f or them to reg ister. So I think we would 

assume the position th at we are registe rin g u p to ou r c apaci ty, a nd to 

our capab ilities, in what we would be expected to reg iste r.

Mr. Smith. You would think , the n, th at the re were not hu nd red s 

of tho usa nds who had failed to r egister?
164

Mr. Bowles. Not hundred s of tho usa nds in a year, not 2 million 

over a 10-year p eriod.

Mr. Kastenmeier. W ould the gen tlem an yield on th at point?

Of course, there are variou s int erpreta tio ns, bu t most rece ntly, on 

March 1, we received from the A ssistant At torney Gene ral, Mr. H en ry 

Petersen, the follow ing statistic. The follow ing is a sta tistical sum ­

ma ry by ind ividual years ref err ed to U.S. attorn eys, nationwid e, as 

dra ft law delinq uen ts from 1963 th roug h 1973, and even inc lud ing the 

first months of 1974. T ha t tot al is 206,775 men, as dis tinguish ed from 

the 17,000 violators refe rre d to by Mr. Morse.

Mr. Morse. I think , sir, i f I may answer that q uesetion, he is spea king of the ind ivi duals who initially fai led to repo rt fo r induction. 

I used the figure of 191,000. He uses 200,000. He is spe aking of the 

referra l o f th e first violation in which th e ind ividual did not rep ort for 

his induction. As I state d, over 80 perc ent of those violato rs o rig ina lly 

rep ort ed to the U.S. att orney, did finally rep ort. They were the init ial 

violations. How ever, the System gives the op po rtu nity to the man a 

second tim e a nd sometimes a th ird time to rep ort . T he figure of 200,000 

is the initial violations and not the final violations b efore prosecu tion 

is undertaken .

Mr. Kastenmeier. I f the gen tlem an from New York will yield a 

bit fu rth er, the q uestion the n is c onc erning th e 17,000 figure you gave 

us as distinguished from the 200,000 or 190,000 figure, how many of 

those i ndividuals m igh t s till have been affected in one w ay o r anothe r ?

Mr. Morse. None. They purge d themselves. They purged themselves 

completely. Only the 17,000 rem ain. The rest pu rged themselves completely. Th ey have nothing on th eir record.

Mr. Kastenmeier. T he gentlem an from New York.

Mr. Smi th . Were the y p urg ed eithe r by s ub mi tting ------

Mr. Morse. Su bm itting to induction.

Mr. Smith. Subm itting to ind uction at a later date.

Mr. Morse. Or as a res ult of a Feder al Burea u of Investigatio n 

repo rt it was fou nd th ei r violation was not willfu l. Fo r example, 

they never received their induction ord er. Th at is how they were 

purged of the ini tial violation.

Mr. Smith. Mr. Morse, wh at is y our System doing a bout the y oun g 

men who arr ive at the age of 18 now and who do not reg ister for some 

reason, pa rti cu larly the reason th at they may not know abou t it, and 

who pe rhaps then would later come in with a request for amn esty ?

Mr. Morse. Yes, sir. The Director, rea lizing th at many people felt 

the dr af t had ended and did not realize the Selective Serv ice Act is 

perma nen t law and th at they must reg ister, did thr ee things. One, he 

initiated a publicity program with eye-catching pos ters aro und the 

country to enco urage people to regi ster. He also went to the Sta tes 

soliciting unc ompensate d reg istrar s. Ev ery op po rtu nity was given to 

the ind ividual to make i t easy fo r him to regi ster.

In addit ion , he has initiated a mail-in reg ist ratio n for those who 

cannot find a r eg istra r to regis ter with.

Now, with respect to those who still do n ot ge t th e word o r refu se to 

reg ister, th e De pa rtm ent of J ustic e issued a m emorandu m on th is very 

subject and it was dated Fe br ua ry 13. You might wish to question th e 

De partm ent of Justic e fu rthe r on its policy. In a dd ition , as a resu lt of
165

an understanding with that Department the failures to register and the 

late registrations are coming directly to my office for review. I have 

been given certain authority by Mr. Petersen in the review of these 

violations. Where there is a willful and deliberate attemp t to violate 

the law, I must refer those to the U.S. attorney for prosecution. I have 

reviewed approximately 3,500 of such violations in the last 3 or 4 

months, and I have referred approximately 750 violations to the U.S. 

attorneys for prosecutive determination based upon the guidelines I 

received.

The problem exists, but I think it is a problem we can cope with in 

view of the actions taken by the Director of Selective Service such as 

good publicity, making more registrars available, and the mail-in 

registration. As a result of this I think people will register and very 

few will refuse to do so.

Mr. Smith. Well, I am glad to hear the System is making attempts 

to see that young men get the word.

Mr. Morse. Thank you, sir.

Mr. Smith. Thank you, Mr. Morse.

Mr. Kastenmeier, The gentleman from Iowa, Mr. Mezvinsky.

Mr. Mezvinsky. Mr. Morse, I gather from your testimony tha t you 

accept the legal argument from Justice that it is not constitutional for 

Congress to act in this area. Is tha t correct ?

Mr. Morse. I have no authority to question it, sir.

Mr. Mezvinsky. You have no authority to question it. You are also 

saying there are no circumstances whatsoever th at would justify the 

granting of amnesty; is that right ?

Mr. Morse. T hat is the administration position; correct, sir.

Mr. Mezvinsky. Based on that, you think it would have a very 

divisive and disruptive effect not only on the Selective Service System 

but on justice in general; is tha t right ?

Mr. Morse. I feel that granting of amnesty would have a bad effect 

on the future of the System, and frankly, I feel it would be divisive 

itself within the country.

Mr. Mezvinsky. Mr. Chairman, I am interested in the Justice 

Department's legal argument that Congress cannot act and that there 

should not be the granting of amnesty or immunity under any circumstances. Ironically, we have the presidential matter in front of our 

committee and if this investigation shows there was a violation of law, 

your position would not allow Congress to gran t any immunity or 

amnesty in that area as well. So it is a very thought provoking and 

timely argument. I shall keep it in mind.

Thank you.

Mr. Kastenmeier. The gentleman from New York.

Mr. Smith. Mr. Morse, if you listen to the testimony of the Department of Justice, as I gathered, their position legally is that it is a 

murky, controversial issue as to whether Congress has power to grant 

amnesty. They tend toward the view that Congress does not, but I 

think they are not making a flat statement that tha t is the constitutional basis of it, that it is impossible for Congress to do it. Would you 

say tha t is about right?

Mr. Morse. As I have said, I have to accede to the Justice Department’s position. I t speaks for the Executive on the law. They set the 

pace, we follow it. So anything I could say would be meaningless.

31 -6 58 0 — 74------ 12
166

Mr. Smith. Thank you.

Mr. Kastenmeier. I think the gentleman from New York has correctly restated the Justice Department position.

Thank you, Mr. Morse. We appreciate your testimony.

Mr. Morse. Thank you.

[Mr. Morse’s statement follows:]

Statement of Walter H. Morse, General Counsel, Selective Service System

Mr. Chairman and members of the Committee, it is a privilege for me to appear 

before you today on behalf of the Selective Service System at your Hearin gs into 

the question of amnesty for dr aft evaders and deserters.

I sh all defer to the Depa rtment of Justice witness to discuss with you the legal 

aspects of amnesty. However, it is essential to understand that when we speak of 

amnesty we speak not only of the release from punishment but also the expunging 

of the existence of guilt to the ex tent tha t one’s civil righ ts are restored as though 

the offender is as innocent as if he ha d never committed the offense. With this in 

mind, I shall address myself to amnesty as it may pertain to the Selective Service 

System.

With regard to House Concurrent Resolutions 144 and 385 which make it the 

sense of Congress that no pardon, reprieve, or amnesty be enacted by the Congress or exercised by the President for persons who are in violation of the Military Selective Service Act, we take no position on whether affirmative action 

eith er is necessary or desirable. With respect to House bills—H.R. 236, 674, 2167, 

3100, 5195, 10975) and 10980, submitted for our comment with your letter of F ebruary 22 to the Director of the Selective Service System, we recommend they not 

be enacted by the Congress. As you know, the scope of those bills extend from 

general to selective amnesty and from a requirement for earned immunity to no 

such requirement. In all cases, however, amnesty is provided for. I shall attempt 

to state the basis for th is position of opposition.

Pursu ant to Section 12 of the Military Selective Service Act (50 App. U.S.C. 

462), a failure to register, the making of a false state ment regarding or bearing 

upon one’s classification, or a failure or refu sal or neglect to i>erform any duty 

required of one under regulations made pursuant to the Military Selective 

Service Act, such as a failure to repo rt or submit to induction, may subject tha t 

person to punishment by imprisonment for not more than five years or a fine of 

not more than $10,000 or both. It is to these violations of the M ilitary Selective 

Service Act, for the most part, that the question of amnesty would have to be 

addressed. In addressing them, however, a timely point of reference should be 

established for the Vietnam conflict which would appear to be the period from 

August 4, 15)64 (the date of the passage of the Tonkin Gulf Resolution) to 

December 29, 1972 (the last day in which a reg istr ant was inducted involuntarily into the Armed Forces). Although the general induction authority provided in Section 17(c) of the Military Selective Service Act expired or July 1, 

1973, 3,492 violations for failure to register or register timely have been referred 

to the United States Attorneys for prosecution during calendar year 1973. These 

violations are not being considered in any deliberatio ns on a queston of amnesty. 

However, it must be recognized tha t equity cannot be achieved if amnesty is 

perm itted fo r all prior violations.

During the period of the Vietnam conflict 1.8 million men were involuntarily 

inducted into the Armed Forces. 300,000 more than during the Korean War. 

Although 191,840 registr ants failed to respond initially to the ir order to report 

for induction for one reason or another, most of them eventually did. It is with 

the remainder that we must concern ourselves. Statistics show that of them. 

19,271 were indicted or put under a criminal complaint. However, before standing 

tria l, 10,153 o f these had their indictments dismissed for the most part for the 

reason that they too submitted to induction or upon an FBI investigation it was 

found tha t their violation was not willful. Of the remaining 9,188, 1,186 were 

acquitted while 7,932 were convicted, of these 3,971 were incarcerated while 

3,961 were put on probation. As to those incarcerated, 384 received the maximum 

sentence of five years which the average sentence ranged from a high of 37.3 

months in FY ’68 to 17.5 months in FY ’73. As of J anuary 16, 134 still remain in 

prison. However, even of those who were incarcera ted 76 were paroled in the 

armed services and 5 into altern ate service. It also is inte resting to note that in 

FY ’72, for example, 61% of those incarcerated were released on parole aft er
167

serving only 41% of their sentence. Presently , only a handful of convicted violato rs are being incar cerated after convicted and in one instance a Cou rt of Appeals remanded a case to the Dis tric t Court with instruct ions to vaca te the conviction upon completion of a parole in the Armed Forces. In addition to the 7,932 convicted violato rs, as of Jan uar y 1, 1974, t he re were 5,119 viola tors under 

indictment and another 3,080 unde r prosecutive dete rmin ation of an FBI inve sti­ gation. Of this tota l number of 8,199, approxima tely 4,400 are fugitives, of which it is e stim ated t ha t 3,000 are in Canada, 500 overseas, and t he w hereabouts of th e remaining 900 is unknown. In sum then, we are speaking of a maximum number of less than 17,000 violators who could be affected by a blanket or general am­ nesty, which amounts to less tha n one per cent of the tot al number of induc ted 

men during the Vietnam conflict. I now wish to turn briefly to the histo ry of amnesty for dr aft evaders in this country and then a ddre ss the issue itself. As I am sure you a re aware , only twice in our hist ory has amnesty been grant ed, and when granted, only then in a selected manner, th at is, first in 1933 and secondly in 1947. You will recall th at 

Pres iden t Roosevelt fifteen years af ter World Wa r I granted amnesty to some 1,500 convicted violators of that war while Pre side nt Truman (lid the same for a like numbe r of violators from World Wa r II. In both cases convictions were 

reviewed and those persons deemed to be deserving were recommended for clemency. The 1947 Board reviewed over 15,000 cases, recommending amnesty only in one out of every 10 cases. Also in 1933 and 1947 all sentences had been served by the convicted viola tors before amnest.v was grant ed. There was no amnesty gran ted af ter the Korean War. I have defined th e extent of the problem, because, in my opinion it has a significant l»earing on the issue of amnesty. The numbers of v iolato rs and histo rical precede nt should not be ignored in addressin g 

the issue. There are those who in the name of mora lity contend th at he who refuse d to serve his country did it out of a sense th at his country was wrong and he was right about our involvement in the conflict in Vietnam. They contend th at such a viola tor had a “tru e sense’’ of righ t and distin guish ed it from wrong. He responded to a higher law or morality . Yet let us not forget th at each one of them had his chance to prove his belief and eligibili ty for the recognized conscientious objection sta tus unde r the conditions described below. Now, after the fact, he 

contends th at if not truly a conscientious objector he is at least a “selective” conscientious objecto r and should be recognized as such. If this should be the case it would api>ear to make a mockery of the efforts of the 17,000 local board members who fait hfu lly served the ir country with out pay and did the ir duty as 

they saw it. For those who believe tha t many if not all of the 8,199 outs tand ing violators, particu larl y the estim ated 4,400 of this number who are fugitives, are in fact conscientious objectors, the facts would appe ar to belie such a conclusion. On July 6. 1970, Local Board Memorandum No. 107 was issued which set forth the crit eria for classification of conscientious objectors as had also been the case under Operati ons Bulleti n No. 270 issued on March 12, 1965. Local Board Memo­ randum No. 107 gave effect, as presen tly does Cha pter 661 of the Reg istrants 

Processin g Manual, to the Supreme Court’s rulings in U.S. v. Seegcr, 380 U.S. 163 

(196 5) , and in U’c7c7i v. U.S., 398 U.S. 333 (1 97 0) . In the 1965 decision it held 

that an individual seeking to qualify for dr aft exemption as a conscientious object or does not have to believe in the existence of a “Supreme Being” in its most orthodox sense and in 1970 the court furth er stated th at the conscientious 

objector may even embrace any indiv idua listic or “homemade religion” which is so sincerely and deeply held as to guide the conduct of his life in the same 

way tha t a traditi ona l paciflstic religion would guide one of its adherents . However, as you may know, the Supreme Court refused in the decisions of U.S. v. 

Gillette and ~Negrc v. Larsen, 401 U.S. 437 (197 1) to recognize the “selective” 

conscientious objector who is opposed to par ticipating in a partic ula r but is not 

opposed to participating in all wars. Thus, it can be concluded that if within the 

8,199 outs tand ing violators there are Seeger-type conscientious objectors, they 

would all have to pre-dat e the year 1965 since the System by O peratio ns Bulleti n 

No. 270 gave effect to this decision at tha t time. If they are lFc7c7i-type conscientious objectors, the ir violatio ns would have to have occurred before 1970 since Local Board Memorandum No. 107 gave effect 

to the Welch decision at tha t time. Obviously, however, if they are “selective” 

conscientious objectors, they have not been afforded relief by the cour ts or the 

procedures of the Selective Service System. Notwithstandin g, whether these
168

viola tors be of the Seegcr, Welch, or Gillettc-type, it would appear at this point in time th at if there is to be validity to the ir contentions, these alleged-to-be 

conscientious objectors should have filed a claim with the ir local boards for such 

a classification prior to the ir violatio ns and not now be i>ermitted to do so aft er 

the fact. I am not awa re th at they did. However, I am aware th at from Jun e 

1964 to Jun e 1973, 145,807 reg istr ant s were classified as conscien tious objectors. 

Accordingly, it must be recognized th at the System did respond to a bona fide 

claim for such a n exemption.

Then too the re are those who say th at not to forgive and forge t keeps open 

the wound of divisiveness. We should remember the 1.8 million who served, perhaps in some instances with out tota l commitment. Truly those who served and 

sacrificed as an obligation to the ir country may become the divisive element 

should amnesty be g ranted to the less tha n one per cent who faile d to meet their 

duty. The patriot ic youth who complied with the law of the land risked his life 

and gave up his personal freedom for a period of two years.

As Dr. Curtis W. Tar r, the form er Director of the Selective Service System, 

sta ted in Feb ruar y 1972 before a Sulwommittee of the Senate Jud icia ry Committee “any widespre ad program of amnesty would be incompatible with the continu atio n of inductions.” If the world situatio n should make it necessary for the 

System again to rein stitute inductions, general amnesty for past violators might 

well convince some young men in the fut ure t ha t they had litt le to lose by evading 

military service. Fur the r, since the Military Selective Service Act is permanent 

legislation and requires a person to registe r when he becomes eighteen, even 

duri ng i>eriods of no induction, the person who refuses to do so must be prosecuted. How can we explain or jus tify amnesty for those who broke the law in 

times of armed conflict hut refuse it for those in time of peace? Such a position 

is illogical on its face.

In summary, I lioi>e I have shown that those who would qualify for amnesty 

are few in number, histo rical preceden t and inequ ity would dict ate against, the 

grantin g o f am nesty, and lastly the disru ptive effect in the fut ure on the Selective 

Service System of providing amnesty to those who refused induction into the 

Armed Services could he far reaching.

This concludes my statem ent, Mr. Chairman, thank you.

Mr. Kastenmeier. Next, the Chair would like to call Father J. Bryan Hehir, director of the Division of Justice and Peace, United 

States Catholic Conference.

TESTIMONY OF REV. J. BRYAN HEH IR, DIRECTOR, DIVISION OF 

JUSTICE AND PEACE, UNITED STATES CATHOLIC CONFERENCE

Mr. Hehir. Mr. Chairman, as you noted, I am director of the Division of Justice and Peace, which is the civil agency of the Catholic 

bishops of the United States.

I appreciate the opportunity to present the views of the conference 

on the question of amnesty to this subcommittee.

The agreement the United States and other nations signed over a 

year ago brought a formal cease-fire to the war in Vietnam. We must 

acknowledge, however, tha t this action did not achieve fully the expectation of establishing peace for the people of Indochina, nor did 

it eliminate all of the conditions which that most tragic war inflicted 

upon the people of the United States.

Domestically, the effects of the war are still with us; in fact, there 

is a risk that its aftereffects can leave a residue of bitterness which 

could poison our national life for years to come. This must not be 

allowed to happen. We must instead seek to resolve the situations 

which cause divisions among us, in a spirit of reconciliation. Reconciliation is the theme and motivating idea of this presentation; recon 

ciliation is also the primary need of the moment in this country.
169

The ma nif est ations of th e need for reco nciliation are n owh ere m ore 

ap pa rent than in the lives of those dir ectly touched by the war. The 

consequences of the wa r are diverse and call for a pl ur al ity of modes 

of reconciliation. On a pr ior occasion, the Catho lic bish ops of the 

Un ited State s called attentio n to the needs of retu rn ing veterans, 

especially the wo unded and the p risoners of war. I n the last few weeks, 

some of these very men have come to Wash ing ton to rem ind the Congres s and the cou ntry th at their needs have not been ade quately met 

as yet. The rei ntegratio n of these retu rn ing vetera ns into tne full life 

of th e society a nd the provision fo r the ir medical, social, and economic 

needs is one dimension o f reconcilation due to them because of the va lor 

the y have displa yed and the sacrifices t hey have made.

An equally im po rta nt tas k of reconc iliation to which we w ould like 

to give specific attentio n in this testimony , however, relate s to those 

you ng men whose critical jud gm ent of the Vietn am wa r led them to 

resist military service. Th is testim ony today in fav or of amnesty is 

rooted in pr ior e valuation s which the A merica n Catho lic bish ops have 

mad e abou t these young people. For example, in 1968, the bishops 

offered the following assessment of those who oppose m ili tary service:

There is sometimes ground for question as to whether the att itu des of some 

toward military duty do not spring from cowardice. In this problem, as in all 

crises which tes t generosity and heroism, cases of moral as well as physical 

cowardice doubtless occur. But a blanket charge of this kind would be unfair to 

those young people who are clearly willing to suffer social ostracism and even 

prison terms because of their opposition to a particular war. One must conclude 

that for many of our youthful protesters, the motives sprin g honestly from a 

principled opposition to a given war as pointless or immoral.

Nor can it be said, the Bishops continued, th at such conscientious objection 

to war, as the war is waged in our times, is entirely the result of subjective considerations and without reference to the message of the gospel and the teaching 

of the Ch urc h; quite the contrary, frequently conscientious dissent reflects the 

influence of the principles which inform modern papal teaching, the Pastora l 

Constitution [of the Second Vatican Council] and a classical tradition of moral 

doctrine in the Church, including, in fact, the norms for the moral evalu ation of 

a theoretically ju st war. (“Human Life in Our Day,” ch. 2, The Fam ily of Nations, November 1968.)

The pur pose of recalling these words is t o focus ou r concern tod ay 

on those who hav e suffered prison terms a nd social ostr acism, even to 

the point of self-impose d exile, as a res ult of their opp osition to the 

war. I t is the belief of the Catholic Conference th at in the present 

context of our country, the g rant in g of amnesty is a work o f reconciliation.

It is im po rta nt to specify wh at we mean by am nesty ; to gr an t 

amn esty requires both an un de rst an ding o f its precise me ani ng a nd a 

recognition of how it relates to reconciliation.

As has been pointe d ou t previo usly tod ay, amnesty does not mean 

th at society or the Na tion “forg ive s” a person fo r his un law ful acts. 

Ra ther, amnesty is a heali ng act of del ibe rate and selective “f orge ttin g,” used in situ ati ons w here the N ation bo th admits i ts own need for 

reconciliation and recognizes th at need fo r heali ng of inju stic es su ffered by the ind ividuals in question. To gr an t amn esty , the n, bri ngs 

abo ut heali ng and reco nciliation to some div ide d mem bers of society 

and reco nciliation o f th ese members w ith society as a whole. Th e Gov ­

ern me nt’s gr an t of amnesty becomes the law ’s own way of undoing 

wh at the law itself has done.
170

Wh o should be g ran ted amn esty ? We find thr ee broad ca tego ries of 

cases. First, those yo ung men who were subject to the d ra ft bu t whose 

inform ed conscience led them to oppose pa rti cipa tio n in the Vietnam 

war, even tho ugh they could not say in conscience th at they were 

oppo sed to all use of military force. The se selective conscientious 

objecto rs are now servin g pri son term s. We d o not believe any useful 

purpo se is served at this time by continuing th e inc arc era tion in Fe deral prison s of these young men whose consciences in str ucted them not 

to engage in the killing a nd d ying of the Vie tnam war. There for e, for 

thi s first gro up 1 would rep eat the inju nction o f the Ame rican Catholic 

bish ops made in 1971:

We urge civil officials * * * to consider granting amnesty to those who have 

been imprisoned as selective conscientious objectors (“Declaration on Conscientious Objection and Selective Conscientious Objectors,” Oct. 21,1971).

Secondly, we also recognize th at an addition al gro up o f y oung men 

are in a somewhat sim ila r position—th at is, men in military service— 

who fo r reasons o f their consciences were compelled to refu se to serve 

in the wa r and who were imp riso ned o r given less -than-hon orable discharges . H ere ag ain the com plicating impact of selective conscientious 

obje ction upon the stru ctures of military law is e vide nt. How ever, we 

do not believe th at the ind ividual forfe its his rig ht to exercise the 

dic tates of his conscience once he ente rs the ran ks of the militar y, or 

fo r th at ma tter, any oth er form of emp loymen t. Th e request for 

amnesty for selective conscientious obje ctors in Federal prisons, t herefore, we believe, should also be extended sim ilarly to men in military 

jails.

Th ird ly, there is th e gro up o f young men who have l eft the cou ntry 

or who ha ve rem aine d in t he cou ntry as fugitiv es from the law because 

the y felt compelled to follow their consciences ra th er than the law. 

Ce rta inl y, their experiences of sufferings and sep ara tio n have been 

tryi ng for them person ally as well as for th eir fam ilie s and frie nds. 

We are here to aga in urg e officials and all Am eric ans to resp ond to 

their conspicuo us need to find a solu tion to the problem s o f these men 

throug h the reco nciling work of am nesty.

Pe rh ap s the hea rt of m y testim ony is to answer why shou ld amnesty 

be g ranted to these men? I have alr ead y c ited one re as on : th e politica l 

and sp iri tual need to deal with the division s in the fab ric of o ur na ­

tio na l life. There is, howe ver, also a second reason of the moral or 

juris prud en tia l order. All three of th e c ateg ories c ited a re made up of 

men who held the position of conscientious obje ction to a pa rti cu lar 

war, t hat is, selective conscientious objection. C ath oli c teaching on the 

morali ty of warfare fully supp orts those who, with inform ed conscience, oppose pa rti cipa tio n in all form s of wa rfa re. Th e dominan t 

moral position in the Catho lic c ommunity for several cen turies, how ­

ever, has been the moral doctrine o f the jus t war. T his position, while 

leg itimating the use o f force again st injustice in political affa irs as the 

ultim a ratio , refu ses to condone any and all uses of forces. Such a 

tea chi ng, req uirin g the indiv idual to exercise responsible discrim ina ting judgme nt about the moral va lid ity for each use of force, is the 

matrix from which the jud gm ent of selective conscientious objection 

issues.
171

Because selective conscientious objection is so explicitly a product 

of a Catholic moral doc trin e, the Am eric an bishops expressed their 

concern in 1968 abou t the inadequacy, inde ed the injustice, o f the f ai lure of our lega l system to pro vid e fo r th is very sound mo ral posture. 

They sa id:

The present laws of this country, however, provide only for those whose reasons 

of conscience a re grounded in a tota l rejection of the use of military force. This 

form of conscientious objection deserves the legal provision made for it, but we 

consider that the time has come to urge that similar consideration he given those 

whose reasons of conscientious objection are more personal and specific (“Human 

Life in Our Day,” cha pter 2, The Family of Nations, November 1968.)

Th is testim ony tod ay is mo tivated by the fac t th at because of the 

inad equacy of the civil law a numb er of ind ividuals suffered and are 

still suffering impris onm ent, or hav e left the country and are still in 

volun tar y exile, or have tak en ref uge from the law, because the y fel t 

compelled to follow th ei r consciences ra th er tha n the law. Th e failu re 

of the law to pro vid e for th e s elective conscientious objector position 

compelled the Bishops in 1968 to recommend th at t he law be revised 

by enact ing “a modifica tion of the Selective Serv ice Act, ma kin g it 

possible, alt hough no t easy, for so-called selective conscience o bjec tors 

to refu se—w ith ou t fear of impriso nm ent or loss of citizensh ip—t o 

serve in w ars wh ich the y conside r unjust, or in bra nch es o f th e services 

(e.g., the Strategic Nuclear For ces ) which wou ld subject them to th e 

performanc e of actions co ntrary to deeply held mo ral convictions 

about ind isc rim ina te killing .” (Ibi d.)

In taki ng this position this mo rni ng and in the past, there is no 

attempt to u ndere stima te the difficulties of th e ju ris pr ud en tia l problem 

involve d here for leg isla tors in seek ing to con struct a law which 

resp ects bo th dem ands o f public order a nd th e d ictate s of an inform ed 

conscience protestin g the chara cte r of a specific instance of wa rfa re. 

Ra the r, the int ention is to hi gh lig ht the notion th at where the imperatives of the moral law co ntr adict th e dem ands o f th e civil law in a 

pro perly form ed conscience, in Catho lic teachin g the moral o rder must 

tak e precedence. T his p rim ary o f the info rmed conscience was th e basis 

of the following counsel offered by the Bisho ps in 1968' when they s aid :

Whether or not such modifications, [meaning the Selective Service Act], in our 

laws are, in fact, made we continue to hope th at in the all-important issue of war 

and peace, all men will follow their consciences. We can do no better than to 

recall, as did the Second Vatical Council, “the perm anent binding force of universal natur al law and its all-embracing principles, to which man’s conscience 

itself gives ever more emphatic voice.” (Ibid .)

In 1971, the Bishops explicitly specified th eir support of selective 

conscientious ob jection:

In the light, of the gospel and from an analysis of the Church’s teaching on 

conscience, it is clear tha t a Catholic can lie a conscientious objector to war in 

general or to a partic ula r w ar because of religious training and belief. (“Declaration on Conscientious Objection and Selective Conscientious Objection,” Oct. 21, 

1971)

On three occasions, “The Catholic C onscientious Ob jec tor,” October 

1969; “M ilitary Consc ription,” Ma rch 1971; “D eclaration on Conscientious Obj ection and Selective Conscientious Objection.” October 

1971, the U.S . Catho lic Conference rei ter ate d the Bis hops' original
172

recommendation in 1968 for a chan ge in the Selective Serv ice legisla ­

tio n affe cting selective conscientious objectors. How ever, in fact, the 

law was no t changed.

Obviously, in the view expressed in these statem ents we stil l have 

an unfinished juris prud en tia l agenda in ou r country on the issue of 

selective conscientious o bjection. The purpose of this testimony tod ay 

is not to discuss th is question in detail, bu t to illu str ate tha t support for 

amnesty is rooted in the mora l jud gm ent t ha t the p roblems of many of 

the young men in volun tary exile or those who are undergroun d or 

those in priso n were caused bv the sens itiv ity of their consciences to the 

wa r and the insens itiv ity of our civil law to th eir conscience.

Befo re I conclude the testimo ny, I request yo ur permission to sub ­

mit in the record the statem ents ref err ed to by the Bishop s and also 

an art icle by Leroy Walters , who has written the best his tory of the 

ju st wa r ava ilab le tod ay and he pub lished an article in the Jo urna l 

of the Am eric an Academy of Religion.

Mr. Kastenmeier. With ou t objection, the documents you ref err ed 

to will be received f or the record.

[The docu men ts refe rre d to ap pe ar at p p. 179-200.]

Mr. Hei iir . Tha nk you.

W ha t should be our respo nse as a Nation to this sit uatio n? I would 

offer guidelines. Fi rst, T th in k it is clea r th at the Na tio n’s need for 

reconc iliation is ill-served by offe ring these men full citizen ship only 

on the conditio n th at they first serve pris on terms f or v iol ating a seriously ina deq uate law.

Second, as one guideline for deter mi nin g the form amn esty should 

take, T would repeat the pasto ral concern expressed by the Catholic 

Bishops of America in 1971, th at “civ il au tho rities gr an t gene rous 

pardo n of convictio ns incurre d un de r the Selective Serv ice Act, with 

the un de rst an din g th at sincere conscientious objectors should rem ain 

open m principle to some for m of service to the comm unity” (It alics 

added) (“ Reso lutio n on South eas t Asia,” November 1971)

In princ iple, one of the objectives of the Na tion is to pro tec t individ ual r igh ts. In p ractice , the N ation’s laws and th eir enforcement are 

not alw ays consonant with that princi ple. In pri nciple, per son s have 

righ ts an d duties as citizens o f the Nation. I n pra ctice, these r igh ts and 

duties are often imperfectly fulfilled . Such a ca tas tro ph ic experienc e 

as th e V ietnam wa r placed a trem end ous str ain on the delica te network 

of the rel ationship between the Nation and citizens, and upon the 

rig hts and dut ies of each. While the r equirem ent in princ iple of a lte rnative service is b oth a possible and reasonable requirement as a condition of amnesty and one which stil l com mands ou r c ons ideration, I 

wou ld wish to stress tod ay th at i t is not the only way, nor p erh aps even 

the be st way a t the m oment to promote reconciliation o r to resolve thi s 

residual mo ral dilemma of the Vietnam wa r. I submi t th at the req uirement of quid pro quo, in the prese nt case, may be more than either 

reason or reconciliatio n requ ire.

In any case we need to keep before us the pre em ine nt need of these 

try in g tim es: mo tiva ted by a sp irit of reco nciliation, the Nation must 

sure ly find a way in pri ncipl e and in pra ctice to integrate these men 

back into society. Th is process requires th at lx>th p art ies in principle 

and in pra ctice show a g reat sp iri t of generosity, and accept t he weaknesses of the other pa rty , th at is, on the one hand, the N ation ’s failur e
173

to design appropriate legislation, and on the other, the individual’s 

failure to find a way of objecting to the war more acceptable to the 

total community. We feel an attempt with this spirit represents the 

best tradition, moral and political reflection.

Thank you.

Mr. Kastenmeier. Thank you, Father Hehir, for such an excellent 

statement. It certainly represents a high sense of morality.

I am wondering, practically speaking, to what extent do you think 

that your communicants and the general American community are as 

ready to accept amnesty as of this hour in our history ?

Mr. Hehir. I think this is a very pertinent question for these hearings and to test the position I have stated.

I think the position I have stated is based on two pillars, if you will, 

one is reconciliation and one also is an attempt to demonstrate that 

there is an objective basis as to why it should be considered at this 

moment.

I think the question of the readiness of people to be reconciling and 

forgiving at this time is still a problematical issue. I feel tha t at this 

moment, for instance the purpose of these hearings is in a sense educative of the American public, to foster debate on this question, to try 

and call attention to the shape of the country, both personally and 

collectively and to ask the question whether in the face of several 

intractible problems we have that do not yield easily to solutions, 

whether we need to continue this problem on the agenda with all these 

other intractible problems when in fact, what I think really is the 

deepest part of human nature, mercy, is one way out of this. I think 

the public can be educated in terms of what is best in the spirit of this 

country. I do not think at the minute you might get a majority vote 

on it, but the function of these hearings is precisely to try to motivate 

that factor.

Mr. Kastenmeier. I yield to the gentleman from Massachusetts.

Mr. Drinan. Thank you, Mr. Chairman.

Thank you, Fathe r Hehir, for this eloquent statement.

Would you say that all churches and synagogues, all religious 

groups in America would concur in general with your sentiments 

here?

Mr. Hehir. That is a very broad question, F ather. I do not have 

empirical data with which I could immediately footnote my answer. 

I would say most churches agree with the general spiri t of the statement, and I think the objective moral doctrine, as you know, is not a 

particularly catholic doctrine. It is a natural law doctrine which I 

think in some way can be directly related to the whole constitutional 

position in the West. Most churches would support it.

Mr. Drinan. In your extensive readings and in all of your background as an expert in this area, you have never heard of any church 

or synagogue who really dissents from any principle in your statement ?

Mr. Hehir. No.

Mr. Drinan. Well, it is good to know the Roman Catholics are singing from the same hymn book in some areas.

I am troubled. Father, by some of your statements or ambiguities 

about alternate service. In 1971 the bishops said th at civil authorities 

should grant a generous pardon of convictions and tha t the sincere 

CO should remain open in principle to some form of service to the 

community. I never have understood tha t sentence, “should remain
174

ope n.’- But you go on and say while this requirement of more than a 

service is both a possible and reasonable requirement as a conditio n 

of amn esty, you go on and say th at we rea lly do not hold it any more. 

Th en you have t he pun ch line wherein y ou say th at you do not t hink 

really that this requirement can be justified by reason o r recon ciliation. 

Then, you sta rt the next pa ragr ap h say ing “I n any case.” Now, how 

does i t come out ?

Mr. Heiiir. I am tryi ng really, to deal w ith tw o levels of a question 

here. Obviously, the t hr us t of t his tes timony is d irected tow ard a ju risdictional problem which is still unresolved. A numb er of the sta tements of the Bishops say we shou ld tr y and resolve th at in case we 

face anoth er conflict—how a re you going to adjud ica te the issue th en ?

On th at level of the question, I think it is obviously not a simple 

question.

Mr. Drixa x. Why is it not ?

Mr. H eii ir. Because, it seems to me, you are tryi ng to bala nce the 

requirements of public o rder again st the req uirements and dictates of 

the inform ed conscience.

Mr. Drixa x. H av ing somebody do 2 ye ars o f nonc ombative service 

is not, goin g to help the public. W ha t is the point of it? You give the 

arg um ent for a reas onable requirement as a con dition of amnesty. If 

the person was co rre ct and the society was wr ong then it does not 

promote pub lic orde r to require him to have a pun ishment or pen alty 

for being righ t.

Mr. H eiiir. I am try in g to preserve the str uc ture of argum ent. As I 

say, on the level of princ iple the re are—on the specific level of Vi etnam , the sp lit in the country, the fac t there was no provision in the 

law, while one still needs to arg ue about how we migh t shape the law, 

pe rhaps the best way to solve the prob lem of Vietnam is jus t gr an t 

uncon ditiona l amn esty. I am pu tti ng th at forw ard fo r pa rt of the 

pub lic discussion.

Mr. Drixax. Wo uld you agre e w ith previous witnesses this m orn ing 

th at a lte rnate service is, in fact, a p ena lty or pun ish me nt ?

Mr. H eiiir. In pri nciple, I do not agree with th at . Whethe r it is a 

prop er respo nse t > the question of amn esty for the Vietnam war, I 

have severe doubts albout that.

Mr. Drixan. All rig ht. If you could clar ify anything fu rthe r on 

th at it would be of value because o bviously th at is an essential element 

of any bill tha t we try to w rite.

Mr. H eiiir . What I am tryi ng to do there aga in is to preserve two 

different questions, and one is really not the amnesty question. I am 

tryi ng to line up the m oral elements of th at problem. O n the selective 

conscientious objector question you introd uce all the historical ma terial of the split in the country about Vie tnam, the lack of the law, the 

inadequacy of counseling procedures f or people who went b efore d ra ft 

boa rds. In o ther words, pa rt of setting up proper- a dju dic ati on for the 

conscientious objector- a nd the selective conscientious ob jector is to get 

at th e question th at Mr-. Sc hwarzschild raised th at th e law works to the 

disfa vo r of those who d o not h ave imm ediately at th ei r access mem bership in a church. Ad ditio na lly there may be a race factor and also we 

need to provide public c ounselin g in an open way. Tha t was not th ere 

and perha ps again t he best way to resolve th e issue is to wipe it from 

the books.
175

Mr. Drin ax. The very term “alt ern ate service” suggests these people 

did not do service to the country and you are still pe rpetua tin g the 

my th th at it was a good war, a nd they shou ld have given service. T ha t 

con tam inates th e argum ent .

Mr. H eh ir. The positions th at supp ort th at sentence are not par ­

tic ularly the assumption s which I ju st bu ilt into t he question. I do not 

mean to bu ild in to this conclusion the ass umptio n th at the wa r was ju st 

and everyone who was seeking a mne sty, the b urd en of pro of is on them .

Mr. Drin ax. Tha nk you v ery much.

I have no f ur th er questions.

Mr. K astenmeier. Than k you, Mr. Dr ina n.

I now yield to the gen tlem an from New York, Mr. Smith.

Mr. Smith. Th ank you, Mr. He hir, for this good statem ent. My 

questions will concern themselves w ith what Fat he r Drin an asked you. 

I was very much intere sted in your answers. Tha nk you very much. 

You speak of SCO , th at is selective conscientious objecto r?

Mr. H eh ir. Ye s; th at is righ t.

Mr. Kastenmeier. Th ank you, Fa th er He hir, for yo ur testimo ny 

this mornin g.

[F at her H eb er’s statem ent follows:]

Statement of Rev. J. Bryan Hehir, Director, Division of J ustice and Peace, 

United States Catholic Conference

I am J. Brya n Hehir, Director of the Division of Justice and Peace of the 

United Sta tes Catholic Conference. I appreciate the oppo rtunity to pres ent the 

views of the Conference on the question of amnesty to thi s Subcommittee.

The agreement the United States and oth er nations signed over a yea r ago 

brought, a formal cease-fire to the war in Vietnam. We must acknowledge, however, th at this action did not achieve fully the expectation of establish ing peace 

for the people of Indochin a, nor did it eliminate all of the conditions th at most 

trag ic war inflicted upon the people of the United States.

Domestically, the effects of the war are still with u s ; in fact ther e is a risk 

th at its after-effects can leave a residue of bitte rnes s which could poison our 

natio nal life for years to come. This must not be allowed to happen. We must 

inste ad seek to resolve the situ atio ns which cause divisions among us in a spi rit 

of reconciliatio n. Reconciliation is th e theme and motivatin g idea of th is presentation ; reconciliation is also the prim ary need of the moment in this country.

The man ifestation s of the need for reconcilation are nowhere more apparen t 

tha n in the lives of those directly touched by the war. The consequences of the 

war are diverse and call for a plurality of modes of reconcilation. On a prior 

occasion the Catholic bishops of the United States called atte ntion to the needs 

of return ing veterans, especially the wounded and the prison ers of wa r ( “Resolution on Imp erati ves of Peace,” November 16, 197 2). In the las t few weeks some 

of these very men have come to Washington to remind the Congress and the 

country th at their needs have not been adequat ely met as yet. The rein tegration 

of these retu rni ng veterans into the full life of the society and the provision for 

the ir medical, social and economic needs is one dimension of reconcilation due 

to them because of the valor they have displayed and the sacrifices they have 

made.

An equally imp orta nt tas k of reconcilation to which we would like to give 

specific atte ntion in thi s testimo ny rela tes to those young men whose criti cal 

judg men t of the Vietnam war led them to resis t mili tary sendee. This testimony 

today in favor of amnesty is rooted in prio r evaluatio ns which the American 

Catholic bishops have made a bout these young people. In 1968 the bishops offered 

the following a ssessment of those who oppose m ilita ry ser vic e:

There is sometimes ground for question as to whether the att itudes of 

some towa rd mil itary duty do not spring from cowardice. In this problem, 

as in all crise s which test generosity and heroism, cases of moral as well as 

physical cowardice doubtless occur. But a blank et charge of this kind would 

be un fai r to those young people who are clearly willing to suffer social
176

ostra cism and even priso n term s because of the ir opposition to a par ticula r 

war. One must conclude that for many of our youthful protesters, the 

motives spring honestly from a principled opposition to a given war as 

pointless or immoral.

Nor can it be said th at such conscientious objection to war, as war is 

waged in our times, is entirely the result of subje ctive consid erations and 

with out referen ce to the message of the Gospel and the teachi ng of the 

Ch urc h; quite the contrary, frequently conscientious disse nt reflects the 

influence of the princip les which inform modern papal teaching, the Pastora l 

Cons titution [of the Second Vatica n Council] and a classical trad itio n of 

moral doctrine in the Church, including, in fact , the norms for the moral 

eva luation of a theoretica lly ju st war. ( “Huma n Life in Our Day,” chap ter 

2, “The Fam ily of Nation s,” November 196 8.)

The purpose of recalling these words is to focus our concern today on those who 

have suffered prison term s and social ostracism , even to the po int of self-imposed 

exile, as a resu lt of the ir opposition to the Vietnam war. It is o ur belief tha t in 

the present context of our country the grantin g of amnesty is a work of reconciliat ion. It is imp orta nt to specify what we mean by amnesty ; to gra nt amnesty 

requires both an understa ndin g of its precise meaning and a recognition of how 

it rela tes t o reconciliation.

Amnesty does not mean th at society or the natio n “forgives” a person for his 

unlawful acts. Rath er, amnesty is a healing act of deli bera te and selective “forgettin g,” used in situ atio ns where the natio n both admits its own need for reconcilia tion and recognizes th at need for healin g of injustices suffered by the 

individual s in question. To gra nt amnes ty, then, brings about healin g and reconcilia tion to some divided members of society and reconciliation of these members 

with society as a whole. The governm ent’s gra nt of amnesty becomes the law’s 

own way of undoing w hat the law itse lf has done.

Who should be granted amn esty ? Three broad catego ries of cases become 

evident. Fir st, those young men who were subje ct to the dr af t but whose informed conscience led them to oppose par ticipati on in the Vietnam war, even 

though they could not say in conscience that they were opposed to all use of 

military force. These selective conscientious objec tors are now serving prison 

terms. We do not believe any useful purpose is served at this time by continuing 

the inca rcera tion in federal prison s of these young men whose consciences instruct ed them not to engage in the killing and dying in the Vietnam war. Ther efore for this first group I would repe at the injunc tion of the American Catholic 

bishops made in 1971:

We urge civil officials . . . to consider grantin g amnes ty to those who have 

been imprisoned as selective conscientious objectors. ( “Declaration on Conscientio us Objection and Selective Conscientious Objector s,” October 21, 

1971. )

Secondly, we also recognize th at an additional group of young men are in a 

somew hat similar position, that is, men in military service, who for reasons of 

the ir consciences were compelled to refus e to serve in the war and who were imprison ed or given less tha n honorab le discharges. Here again the complicating 

impact of selective conscientious objection upon the stru ctu res of mili tary law 

is evident. However, we do not believe tha t the indiv idual forf eits his righ t to 

exercis e the dictate s of his conscience once he ente rs the ran ks of the military, 

or, for th at mat ter, any oth er form of employment. The reque st for amnesty for 

selective conscientious objectors in federal prisons, therefore, should also be 

extend ed s imila rly to men in mil itary jails.

Thirdly, there is th e group of young men who hav e l eft the country or who have 

remain ed in the country as fugitives from the law because they felt compelled 

to follow the ir consciences rather than the law. Certainly the ir experiences of 

sufferin gs and sepa ratio ns have been tryi ng for them person ally as well as for 

the ir families and friends. We again urge officials and all Americans to respond 

to the ir conspicuous need to find a solution to the problems of these men through 

the reconciling work of amne sty.

Why should amnesty be gran ted to these m en? I have alrea dy cited one reason : 

the political and spir itua l need to deal with the divisions in the fabric of our 

natio nal life. There is, however, also a second reason of the moral or ju rispru den tial order. All thre e of the categori es cited are made up of men who held 

the position of conscientious objection to a par tic ula r war, that is, selective conscientious objection. Catholic teach ing on the morality of wa rfa re fully suppo rts 

those who with informed conscience oppose par ticipati on in all forms of warfare.
177

The dominant moral position in the Catholic community for several centu ries, 

however, has been th e moral doctrine of th e ju st war. This position while legitamatin g the use of force aga inst inju stic e in politic al affa irs as the ult im a ratio,

refuses to condone any and all uses of forces. Such a teaching, requiri ng the 

individ ual to exercis e responsible discriminat ing judgment about the moral validity of each use of force, is the ma trix from which the judg men t of selective

conscientious objection issues. Because selective conscientious objection is so explicitly a p rodu ct o f a Catholic 

moral doctrine, the American bishops expressed the ir concern in 1968 abou t the 

inadequacy, indeed the injustice, of the fai lur e of our legal system to provide 

for this very sound moral po sture. The present laws of this country, however, provide only for those whose 

reasons o f conscience are ground ed in a tot al rejec tion of the use of mil itar y 

force. This form of conscientious objection deserves the legal provision made 

for it, but we consider th at the time has come to urge th at sim ilar consid eration be given those whose reasons of conscientious objectio n are more personal and specific. ( “Human Life in Our Day,” cha pter 2, “The Family of 

Natio ns,” November 1968.)

This testimo ny today is motivated by th e fact that b ecause of th e ina dequacy of 

the civil law a numbe r of indiv iduals suffered and are still suffer ing imprisonment, or have left the country and are still in volu ntary exile, or have take n 

refuge from the law. because they felt compelled to follow the ir consciences 

rather tha n the law. The failure of the law to provide for the selective conscientious objector position impelled the bishops in 1968 to recommend th at it be revised by en actin g “a modification o f the Selective Service Act, making it possible, 

altho ugh not easy, for so-called se lective conscience objectors to refuse—w ithout fea r of imprisonment or loss of citiz enship —to serve in wars which they consid er 

unjust, or in branches of the services (e.g., the Strategic Nucl ear For ces) which 

would subje ct them to the perfo rmance of action s con trar y to deeply held moral 

convictions about i ndisc rimin ate killing.” (Ib id .) In tak ing this position the re is no attem pt to underes tima te the difficulties of 

the jur isp rud ent ial problem involved here for legis lator s in seeking to construct a law which respects both demand s of public order and the dictate s of an informed conscience protestin g the cha rac ter of a specific instance of war fare. 

Rather, the intention is to highlight the notion that where the impe ratives of 

the moral law contradict the demands of he civil law in a properly formed conscience, in Caholic teachi ng the mora l order must tak e precedence. This primacy 

of the informed conscience was the basis of the following counsel offered by the 

American bishops in 1968: Whe ther or not such modifications in our laws are, in fact, made we continu e to hope that in the all-i mpo rtan t issue of war and peace, all men will 

follow th eir consciences. We can do no better th an to recall, as did the Second Vatica n Council, “the perm anent binding force of the univ ersal nat ura l 

law and its all embracing principles,” to which “man ’s conscience itself gives 

ever more em phatic voice.” (Ibi d. )

In 1971 the bishops specified the ir suppo rt of selective conscien tious objection :

In th e light of the gospel and from an anal ysis of the Chu rch’s tea ching on 

conscience, it is cle ar th at a Cath olic can l>e a conscientious objec tor to war 

in general or to a par tic ula r wa r because of religiou s training and belief, 

(ita lic s add ed) ( “Declarati on on Conscientious Objection and Selective 

Conscientious Objection,” October 2 1,1 97 1)

On thr ee occasions ( “The Catholic Conscientious Objector,” October, 1969; 

“Milita ry Conscription,” March, 1971; “Declaration on Conscientious Objection 

and Selective Conscientious Objection,” October, 197 1) the United Stat es Catholic Conference reiterated the bishops' original recommendation in 1968 for a change in the Selective Service legislation affect ing select ive conscientious 

objectors. However, in fact, the law was not changed. During this period two 

cases were api>ealed to the Supreme Cou rt involvin g select ive conscientious 

objectors. The young men involved had refused to par ticipa te specifically in the 

Vietnam war on grounds of conscience altho ugh neith er of them was conscientiously opposed to wa r in general. The Court upheld the convictio ns considering 

the present dr af t law cons titutiona l, even though it did not provid e an exemption 

for those who object in conscience to a pa rticu lar war. However, the Court 

expressly sta ted in its majority opinion th at Congressional action to recognize 

the righ t of select ive conscientious objection could also be con stitu tion al.
178

Obviously, in the view expre ssed in these stat ements we stil l have an unfinished 

juri spr udent ial agenda in our country on the issue of selective conscientious 

objection. The purpose of this testimony today is not to discuss this question in 

detail, but to illu strate t ha t suppo rt for amnesty is rooted in the m oral judgment 

th at the problems of many of the young men in volu ntary exile or those who ar e 

underground or those in prison were caused by the sens itivity of the ir consciences to the war and the insensitivity of our civil law to the ir conscience.

What should be o ur response as a nation to this sit uatio n? I would offer three 

reflections. Fir st, I thin k it is clea r th at the nation ’s need for reconcilation is illserved by offering these men full citizenship only on t he condition that they first 

serve prison term s for viola ting a seriously inad equate law. To cause them to 

suffer imprisonment af ter th e suffering an d anguish they have alrea dy experienced 

seems a harsh and vindictive act for a natio n seeking to be an agent of healin g 

and reconcilation.

Secondly, as one guideline for determ ining the form amnesty should take, I 

would repeat the pas tora l concern expressed by the Catholic bishops of America 

in 1971, th at “civil author itie s gra nt general pardo n of convictions incurred 

unde r the Selective Service Act, with the understand ing th at sincere conscientious objectors should remai n open in princip le to some form of service to the community. (It alics added) ( “Resolution on Southeast Asia,’’ November 1971. )

In principle, one of the objectives of the natio n is to prot ect indiv idual rights. 

In practice, the nat ion ’s laws and the ir enforcem ent are not always .consonant 

with th at principle.

In principle, persons have righ ts and duties as citizen s of the nation. In 

practice, these righ ts and duti es are often imperfectly fulfilled. Such a ca tastrop hic experience as the Vietnam war placed a tremen dous str ain on the 

delicate network of relationship between the nati on and citizens, and upon the 

righ ts and duties of each. While the requirement in principle of altern ativ e 

service is both a i>ossible and reasonable requirement as a condition of amnesty 

and one which still commands our consideration , I would wish to stress today 

th at it is not the only way, nor perh aps even the best way at the moment to 

promote reconci liation or to resolve this resid ual moral dilemma of the Vietnam 

war. I submit th at the requir ement of quid pro quo, in the present case, may 

be more than eithe r reason or reconcil iation require.

In any case we need to keep before us the preem inent need of these trying 

tim es : motivated by a spi rit of reconciliation, the natio n must surely find a way 

in principle a nd in practice to inte grate these men back into society. This process 

requires th at both par ties in principle and in practice show a gre at spi rit of 

generosity, and accept the weaknesses of the oth er party, that is, on the one 

hand, the nat ion ’s fai lur e to design appropriate legisla tion, and on the other, the 

individual’s fail ure to find a way of objecting to the war more acceptable to the 

tot al community. Faced by the urgency of the challenge, a display of generosity 

in this degree represents the best of the American trad itio n and should ch aracter ize the att itu de of the government, the citize ns at large and the individ ual 

directly affected. In this way we can get on with the tas ks of reconciliation and 

healing so urgen tly needed in our country at this time.
179

[The doc ument s referred to at p. 172 follow:]

Declaration on 

Conscientious 

Objection and 

Selective 

Conscientious 

Objection

©

UNITED STATES 

CATHOLIC CONFERENCE

Octob er 21. 1971

F

OR many of our Cath olic people, especially 

the young, the question of participation in 

military service has become a serious moral 

problem . They properly look to their spiritual 

ieaders for guidance in this area of moral decision and for support when they judg e their 

sentiments to be in keeping with Cath olic Christian trad ition. For this reason, we wish to express ourselves on the following principles.

The traditio nal teaching of the Church regarding the importance of individual conscience 

is crucial in this issue of conscientious objection 

and selective conscientious objection . The 

obligation to seek the tru th in order to form 

right and true judgments of conscience and the 

obligation to follow conscience was put in 

positive terms by Pope Paul VI and the Fathers 

at the Second Vatican Cou ncil:

Further ligh t is shed on the subject if one 

considers that the highest norm of human 

life is the divine law—eternal, obje ctive, and 

universal—whereby God orders, directs, 

and governs the entire universe and all the 

ways of the human com munity , by a plan 

conceived in wisdom and love. Man has 

been made by God to participate in this law, 

with the result that, und er the gentle disposition of divine Providence, he can come 

to perceive ever increasingly the unchanging truth. Hence every man has the duty, 

and therefo re the righ t, to seek the tru th in 

matters religious, in order that he may with 

prudence form for himself right and true 

judgments of conscience, with the use of all 

suitable means.

Truth, however, is to be sought after in a 

manner proper to the dignity of the human 

person and his social nature. The inquiry is 

to be free, carried on with the aid of teaching or instruction, com munica tion, and 

dialogue. In the course of these, men explain to one another the tru th they have 

discovered, or think they have discovered, 

in order thus to assist one another in the 

quest for truth. Moreover, as the tru th is 

discovered, it is by a personal assent that 

men are to adhere to it.
180

On his part, man perceives and acknow ledges the imperatives of the divine law 

throug h the mediation of conscience. In all 

his activity a man is bound to follow his 

conscience faithfu lly, in order that he may 

come to Cod, for whom he was created. 

("Declaratio n on Religious Freedom," n.3)

Addressing the question in the "Pastoral 

Constitution On the Church in the Mo dern 

World," Our Holy Father and the Bishops at the 

Second Vatican Council wrote:

In the depths of his conscience, man detects a law which he does not impose upon 

himself, but which holds him to obedience. 

Always summoning him to love good and 

avoid evil, the voice of conscience can when 

necessary speak to his heart more specifically: do this, shun that. For man has in his 

heart a law writte n by Cod. To obey it is the 

very dignity of man; according to it he will 

be judged.

Conscience is the most secret core and 

sanctuary of a man. There he is alone with 

God, whose voice echoes in his depths. In a 

wonderful way conscience reveals that law 

which is fulfilled by love of God and neighbor. In fidelity to conscience, Christians are 

joined with the rest of men in the search fo r 

truth, and for the genuine solution to the 

numerous problems which arise in the life 

of individuals and from social relationships.

Hence the more that a correct conscience 

holds sway, the more persons and groups 

turn aside from blind choice and strive to 

be guided by obje ctive norms of morality. 

("The Church in the Mo dern W orld," n. 

16)

In add ition, the Church has always affirmed 

the obligation of individuals to contribu te to the 

common good and the general welfare of the 

larger com munity. This is the basis for the 

participation of Christians in the legitimate 

defense of the ir nation.

The Counc il Fathers, recognizing the absence of adequate authority at the international 

level to resolve all disputes among nations,

acknowledged that "governments cannot be 

denied the right to legitimate defense once 

every means of peaceful settlement has been 

exhausted." ("The Church in the Mo dern 

World," n. 79)

When survival of the wider com munity has 

been threatened by external force, the Church 

has traditionally upheld the obligation of Christians to serve in military defensive forces. Such 

comm unity-oriented service, that is, soldiers 

devoted to the authen tic purposes of securing 

peace and justice, has merited the Church's 

commendation.

The Catholic Bishops of the United States are 

gratefully conscious of the sacrifices and valor of 

those men who are serving and who have served 

in the armed forces and especially those who 

have given their lives in service to the ir country. 

Their courage in the defense of the common 

good must not be underestimated or forgotten. 

In the words of the Second Vatican Council, 

"As long as they (members of the armed forces) 

fulfill this role properly, they are making a 

genuine contribution to the establishment of 

peace." ("The Church in the Mo dern W orld," 

n. 79)

It was also recognized by the Second Vatican 

Council that the common good is also served 

by the conscientious choice of those who renounce violence and war, choosing the means 

of non violence instead:

. . . we cannot fail to praise those who 

renounce the use of violence in the vind ication of the ir rights and who resort to 

methods of defense which are otherwise 

available to weaker parties too, provided 

that this can be done withou t injury to the 

rights and duties of others or of the com ­

munity itself. ("The Church in the Modern 

World," n. 78)

Furthermore, the Cou ncil Fathers, addressing 

themselves more specifically to the rights of the 

conscientious objector to war, stated:

. . . it seems right that laws make humane 

provisions for those who for reasons of conscience refuse to bear arms, provided how -
181

ever, that they accept some other form of 

service to the human com munity. ("The 

Church in the Mo dern W orld," n. 79)

Althoug h a Catholic may take advantage of 

the law pro viding exemption from military service because of conscientious opposition to all 

war, there ofte n arises a practical problem at 

the local level when those who exercise civil 

authority are of the opinion that a Catholic 

cannot under any circumstances be a conscientious objector because of religious training and 

belief. This confusion, in some cases, is the 

result of a mistaken notion that a person cannot 

be a conscientious objector unless the individ ual 

is a member of one of the traditio nal pacifist 

churches (for example, a Quaker).

In the light of the Gospel and from an analysis 

of the Church's teaching on conscience, it is 

clear that a Catholic can be a conscientious 

objector to war in general or to a particular war 

"because of relig ious training and be lief." It is 

not enough, however, simply to declare that a 

Catholic can be a conscientious objector or a 

selective conscientious objector. Efforts must be 

made to help Catholics form a correct conscience 

in the matter, to discuss w ith them the duties of 

citizenship, and to provide them with adequate 

draft counseling and info rmation services in 

order to give them the full advantage of the law 

protecting their rights. Catholic organizations 

which could qua lify as alternative service 

agencies should be encouraged to support and 

provide meaningful employment for the conscientious objector. As we hold individuals in 

high esteem who conscientiously serve in the 

armed forces, so also we should regard conscientious objection and selective conscientious 

objection as positive indicators within the 

Church of a sound moral awareness and respect 

for human life.

The status of the selective conscientious ob ­

jector is com plicated by the fact that the present 

law does not provide an exemption for this type 

of conscientious objection. We recognize the 

very complex procedural problems which 

selective conscientious objection poses for the 

civil comm unity; we call upon moralists, lawyers 

and civil servants to work cooperatively toward 

a policy which can reconcile the demands of the 

moral and civic order concerning this issue. 

We reaffirm the recomm endation on this subject contained in our November 1968 pastoral 

letter, "Hum an Life in Our Da y"-

1) a modification of the Selective Service

Act making it possible for selective conscientious objectors to refuse to serve in 

wars they consider unjust, witho ut fear of 

imprisonment or loss of citizenship, provided they perform some other service to 

the human comm unity; and

2) an end to peacetime conscription.

In restating these recommendations, we are 

aware that a num ber of young men have left the 

country or have been imprisoned because of 

the ir opposition to compulsory military conscription. It is possible that in some cases this was 

done for unworthy motives, but in general we 

must presume sincere obje ctions of conscience, 

especially on the part of those ready to suffer 

for their convictions. Since we have a pastoral 

concern for their welfare, we urge civil officials 

in revising the law to consider granting amnesty 

to those who have been imprisoned as selective 

conscientious objectors, and giving those who 

have emigrated an op portu nity to retu rn to the 

country to show responsibility for the ir con duct 

and to be ready to serve in other ways to show 

that they are sincere objectors.

1971

Publicatio ns Office

UNITED STATES CA TH OL IC CONFERENCE 

1312 Massachusetts Avenue N.W. 

Washington, D C . 20005

31-6 58 0 - 7 4 - 1 3
Statement on

The

Catholic

Conscientious

Objector

October 15, 1969

0INCE Apostolic times, the Church has 

cherished and valued the spirit of nonviolence based on the teaching of Jesus.

This is one of the reasons Christians of the 

early Church did not participate in military 

service. There was even a strong tendency 

tow ard pacifism. The Church Fathers, St. 

Ambrose and St. Augustine, emphasized the 

primacy of love, going so far as to state 

that Christians as individuals had no right 

to self-defense. Christians, however, were 

allo wed to take part in communal defense 

if the wa r was considered just.

TH E theory of the just w ar, beginning with

* St. Augustine and later developed by

Catholic theologians such as St. Thomas 

Aquinas and Francis Suarez, required that 

certain conditions be met: The war must 

be declared only as a last resort by a lawful 

authority, for a just cause, using just means, 

and with reasonable expectation of success. 

The m ilita ry action cannot produce a greater 

evil than it seeks to correct. In applying an 

evolving just wa r theory to the contemporary 

wo rld, the person who is sincerely trying to 

form his conscience must judge whether or 

not the end achieved by a particular wa r or 

all-ou t wa r is pro portio nate, in any degree, 

to the devastation wro ught by that war. On 

the basis of this judgment, he would justify 

either partic ipation in or abstention from war.

N abstaining, some might conclude that 

just wa r in the modern wo rld is not possible, citing Pope John's statement in Pacem 

in Terris: "Therefore, in this age o f ours which 

prides itself on its atom ic power, it is irr ational to believe that wa r is still an apt 

means of vindicating violated rights." In. 

127) "N o more war, wa r never ag ain," 

were the words of Pope Paul VI to the General Assembly of the United Nations.
IN the continuing condemnation of total 

' wa rfare by recent popes, the Second V atican Council declared tha t —

every act of wa r directed to the indiscriminate destruction of whole cities or 

vast areas with their inhabitants is a 

crime against God and man which 

merits firm and unequivocal condemnation. (Gaudium et Spes, n. 80)

A Catholic viewing his tradition , the mes- 

’ •sage of the Gospel statements, could va lidly question and abstain from participation 

in wa r or the preparations for war.

TH E Second Vatican Council, therefore, en- 

' dorsed laws that would —

make human provision for the care of 

those who for reasons of conscience refuse to bear arms, provided, however, 

that they accept some other form of 

service to the human community. (GS, 

n. 79)

ROM the previously stated documents and 

traditions, it is clear that a Catholic (either 

in-service or out-of-service) can be a conscientious objector "because of religious 

trainin g and belief.”

We are, therefore, concerned when we 

hear that some boards and military tribunals 

do not recognize a Catholic claim for military exemption by reason of conscience. On 

the other hand, we are encouraged by recent court decisions and the actions of draft 

boards which uphold the primacy of conscience in this regard.

DUT it is not enough merely to declare 

that a Catholic can be a conscientious 

objector. Christians must "make humane 

provisions" for the conscientious objector

and aid him in his "service to the human 

community. Wha t he often lacks is basic 

info rmation about the draft and its altern atives. He meets opposition from those who 

should, in fact, be counseling and aiding 

him. Once granted the status of a conscientious ob|ector, he often finds himself 

in a menial and degrading alte rnative service in ord er to “ test his sincerity." We therefore recommend:

1. That each diocese initiate or cooperate in providing draft info rmation and

counseling;

2. That Catholic Organization s which

could qualify as alte rnative service

agencies consider apply ing for that

status, and support and provide meaningful employment for the concientous

objector.

W

E are not only concerned abo ut the status o f the conscientious objector, but also 

concerned about that of the Selective Conscientious Objector. His status is comp licated by the fact that his claim for exemption 

is not upheld by law. The American bishops 

spoke at some length in their pastoral letter 

of Novemb er, 1968, Human Life in Ou r 

Day, of the Selective Conscientious Obje ctor, recommending —

a modification of the Selective Service 

Act making it possible, although not 

easy, for so-called selective conscientious objectors to refuse—without fear of 

imprisonment or loss of citizenship — 

to serve in wars which they consider 

unjust or in branches of service (e.g., 

the strategic nuclear forces) which 

would subject them to the performance 

of actions contrary to deeply held moral 

convictions about indiscriminate killing.
184

IN reaffirm ing this recommendation, we are 

reminded of the number of individuals who 

have suffered imprisonment or have left the 

country because they felt compelled to fo llow their conscience rather than the law. In 

a continuing pastoral concern for their we lfare, we urge civil officials, as part of a revision of the law as regards to the Selective

Conscientious Objector, to consider gra nting amnesty to those who have suffered imprisonment and give those who have left 

the country an opp ortu nity to demonstrate 

that they are sincere objectors.

|N conclusion, we encourage clergy and 

1

 laymen alike, especially parents, to be 

sympathetic and understanding to those who 

in goo d conscience are compelled to object 

to military service, even if one were not in 

tota l agreement with the objector. The Fathers 

of the Second Vatican Council wro te —

We cannot fail to praise those who renounce the use of violence in the vindication of their rights and who resort 

to methods of defense which are otherwise availa ble to weaker parties, provided that this can be done without injury to the rights and duties of others 

or of the community itself. (GS, n. 78)

1A/E should look upon conscientious objec- 

’ ’ tion not as a scandal, but rather as a 

healthy sign. War will still not be replaced 

by more humane institutions for regulating 

conflict until citizens insist on principles of 

non-violence. John F. Kennedy once said, 

"W ar will exist until the distant day when 

the conscientious objector enjoys the same 

reputation and prestige as the war rio r does 

today."

Division of World Justice and Peace

United States Catholic Conference

Octob er 15, 1969
185

Resolution

on

Imperatives

of

Peace

o

Novem ber 16, 1972

NATIONAL CONFERENCE

OF

CATHOLIC BISHOPS

This is a critical moment in the history of 

the Vietnam war. Intensive efforts on the part 

of our government as well as other parties 

involved appear to be refining the final details of a settlement which will end the 

fighting. Recalling our exhortation a year ago 

to our nation's leaders and to leaders of 

all nations to "b rin g the war to an end with 

no further delay," we pray earnestly to 

Christ, the Prince of Peace, for a successful 

outcome of the present negotiations: that 

is, for a just and lasting peace with stability 

and freedom for all the nations and peoples 

of Southeast Asia. We couple this prayer with 

a plea to both sides for an end to bombing 

and terrorism which are causing such loss 

of civilian life and destruction of the land 

itself. Indeed, a particularly anguishing and, 

in many cases, immoral aspect of this war 

has been the suffering and death inflicted on 

non-combatants.

It is vitally important that Americans now 

turn the ir attention to the task of reconciliation not only in Southeast Asia but also in 

our country. This war can well leave a residue of bitterness which could poison our 

national life for years to come. This must 

not be allowed to happen. We must instead 

seek to resolve our differences in a spirit 

of mutual understanding and respect.

Special attention must be given to the 

young people of our nation whom the war 

has profoundly affected in so many ways, 

material, psychological, and spiritual. Our return ing veterans and especially the wounded 

and the prisoners of war, must be given every 

possible consideration and assistance to enable them to reintegrate the ir personal and 

professional lives into civilian society. Our 

sincere compassion should be extended to 

the families of men kille d in the fighting. 

The dead, the maimed, and the missing in 

action should have constant remembrance 

in our prayers. Those who continue to serve 

in the military should also receive the moral 

and material support of the nation.

In a spirit of reconciliation, all possible 

consideration must be given to those young 

men who, because of sincere conscientious
186

belief, refused to participate in the war. A 

year ago, we urged “ that the civil authorities grant generous pardon of convictions incurred under the Selective Service Act, with 

the understanding that sincere conscientious 

objectors should remain open in principle 

to some form of service to the comm unity." 

(Resolution on Southeast Asia, National Conference of Catholic Bishops, November, 

1971). We again urge government officials 

and all Americans to respond in this spirit 

to the conspicuous need to find a solution 

to the problems of these men. Generosity 

represents the best of the American trad ition and should characterize our response to 

this urgent challenge.

Generosity must also mark our participation in efforts to rebu ild the war-torn nations and societies of Southeast Asia. There 

can be no doubt that the people of North 

and South Vietnam, Laos and Cambodia 

have suffered a tragedy far greater than ours. 

The dramatic and successful programs of 

aid and reconstruction carried out by the 

United States follow ing World War II provide a model for what is demanded of us 

now. We must be unstinting in the expending of our moral, material and technical 

resources and skills on behalf of the people 

of Southeast Asia who have suffered so 

grievously.

Finally, we believe that the imperatives of 

peace now demand intensive study of many 

complex and pressing moral issues. The 

return of peace should not cause a slackening of attention to these matters. The experience of recent years amply illustrates 

the fact that grave ethical and moral questions regarding warfare remain unresolved. 

While recognizing the right of self-defense, 

we are nevertheless convinced that war is 

not an apt means of settling disputes. The 

quest for viable means of preventing war 

and for effective alternative methods of 

resolving conflicts—through such agencies 

as the United Nations— is an urgent imperative. Technological skill in the science of 

war must not outstrip humane skill in the 

arts of peace. Church agencies, including 

the United States Catholic Conference, Catholic educational institutions, diocesan offices 

for justice and peace and organizations of 

the laity should in the months and years to 

come take a leading role in the effort to 

work for international justice and to find 

ways to ensure that peace— which, God 

willin g, is returning to Southeast Asia and 

also to the United States—will be the 

permanent con dition of human life in all nations and for all time.

r e r e r e

1972

Publicatio ns Office

UNITED STATES CATHOLIC CONFERENCE 

1312 Massachusetts Avenue N.W. 

Wa shing ton , D.C. 20005
187

RESOLUTION ON SOUTHEAST ASIA

In the light of the urgent appeal for justice in the 

world pronounced by the recent Synod in Rome, we 

Bishops of the United States address ourselves again 

to the agonizing issue of the American involvement in 

Southeast Asia. And we feel compelled to make some 

positive recommendations concerning the long 

journey ahead to peace with justice in our world.

Resolution

on

SOUTHEAST

ASIA

November, 1971

I. THE AMERICA N INVOLVEMENT 

IN SOUTHEAST ASIA

Three years ago, in our Pastoral Letter "Human 

Life in Our Day," we raised some basic moral 

questions concerning the Vietnam War:

In assessing our country's involvement in 

Vietnam we must ask: Have we already 

reached, or passed, the point where the 

principle of proportionality becomes decisive? How much more of our resources 

of men and money should we com mit to 

this struggle, assuming an acceptable 

cause and intention? Has the co nflict in 

Vietnam provoked inhuman dimensions 

of suffering?

At this point in history it seems clear to us that 

whatever good we hope to achieve through continued 

involvement in this war is now outweighed by the 

destruction of human life and of moral values which 

it inflicts. It is our firm conviction, therefore, that the 

speedy ending of this war is a moral imperative of the 

highest priority. Hence, we feel a moral obligation to 

appeal urgently to our nation's leaders and indeed to 

the leaders of all the nations involved in this tragic 

conflict to bring the war to an end with no further 

delay.

National Conference 

of

Catholic Bishops

II. THE JOU RNE Y AHEAD TO PEACE 

WITH JUSTICE IN OUR WORLD

It is our prayerful hope tha t we in America will 

have learned from the tragedy of Vietnam important 

lessons for reconstructing a world with justice and a 

world at peace.

First, we must be determined as never before "to 

undertake an evaluation of war with an entirely new
188

attitude” (Vatican II, Pastoral Con stitutio n on the 

Church in the World, No. 80). And we reach this new 

attitude by attending more carefully to the spirit of 

the Gospel and by heeding the pleas of recent Popes: 

"Noth ing is lost by peace; everything may be lost by 

war" (Pius XII, Radio Broadcast of 24 August 1939); 

"I n this age of ours which prides itself on atomic 

power, it is irrational to believe that war is still an apt 

means of vindicating violated rights" (John XXIII, 

Pacem in Terris, No. 127); "N o more war, war never 

again" (Paul VI, Address to the United Nations, 4 

October 1965).

Secondly, we realize that "peace is not merely the 

absence of war, but an enterprise of justice" (Vatican 

II, Past. Const, on the Church in the World, No. 78). 

In this vein we recognize our nation's moral obligatio n, together with other nations, to contribute 

mightily to the restoration and development of 

Southeast Asia After World War II our Country 

launched an unprecedented program of economic 

assistance and social reconstruction of war-torn countries. Certainly we can do no less now.

Th irdly, we are convinced that the United 

Nations must become more effective in the promotion of world justice and peace. In saying this, we 

echo the words of Pope Paul VI that "th e people of 

the earth turn to the United Nations as the last hope 

of concord and peace," and we recognize with the 

Holy Father that the United Nations "must be 

perfected and made equal to the needs which world 

history will present" (Address to the United Nations, 

4 October 1965). Only by strengthening the United 

Nations as an international forum for peace and as a 

multi-lateral instrument for peace keeping can futu re 

Vietnams be averted.

Finally, we recognize a clear need at this point in 

history to urge upon all Americans a spirit of 

forgiveness and reconciliation. We recall that at a 

similarly critical moment in American history, 

Abraham Linc oln urged his countrymen to act "w ith 

malice towards none, with charity towards all." We 

invite our fellow Americans to let these words guide 

new efforts to heal wounds in our divided society and 

to unite our country in the years after the war in 

Southeast Asia.

We speak w ith special concern for those who have 

borne the heaviest burden o f this war: the young men 

who chose conscientiously to serve in the Armed 

Forces, many of whom lost life or limb in this

conflict. We wish to express our profound sympathy 

to the wives and families of the soldiers who have 

died in Southeast Asia. We express our profound 

concern for our prisoners of war and their families 

and promise our prayers for the prisoners' welfare 

and release. And on behalf of the returning veterans 

we urge strongly that the Government increase the 

present benefits and educational opportunitie s afforded by the G.l. Bill, and tha t it create new 

programs of drug rehabilitation , vocational training 

and job placement wherever necessary.

Those who in good conscience resisted this war 

are also subjects of our genuine pastoral concern. 

They too must be reintegrated as fu lly as possible 

into our society and invited to share the opportu nities and responsibilities of building a better nation. 

Hence we repeat our plea of October 21, 1971 that 

the civil authorities grant generous pardon of convictions incurred under the Selective Service Ac t, with 

the understanding that sincere conscientious objectors should remain open in principle to some form of 

service to the com munity. Surely a country which 

showed compassion by offering amnesty after the 

Civil War will wan t to exercise no less compassion 

today.

CONCLUSION

In setting forth our position at this time, we 

realize that the task of constructing a just social order 

and a world genuinely at peace w ill never be an easy 

one. But we must reaffirm tha t followers of Christ 

and all men o f good will must redouble their effo rts 

to achieve this task so w orthy of our best efforts.

Otherwise, for all its marvelous knowledge, humanity, which is already in the 

middle of a grave crisis, will perhaps be 

brought to that mournful hour in which 

it will experience no peace other than the 

dreadful peace of death. But while we say 

this, the Church of Christ takes her stand 

in the midst of the anxiety of this age, 

and does not cease to hope with the 

utmost confidence She intends to propose to our age over and over again, in 

season and out of season this apostolic 

message: "Behold, now is the acceptable 

tim e" for a change of heart; "Behold, 

now is the day of salva tion!" (Vatican II, 

Pastoral Con stitution on the Church in 

the World, No. 82).
189

A REPRINT FROM

JOURNAL OF THE

AM ER ICAN 

AC AD EM Y OF

RELIG IO N

JUNE, 1973

VOLUME XLI NUM BER TW O

31-6 58 0 - 74 - 14
19 0

A Historical Perspective on Selective 

Conscientious Objection 

LeRoy Walters

D

UR IN G the past six years the ques tion of selective conscientious objecI tion (SC O) has been addressed by a Na tional Advisory Comm ission 

on Selective Service, by the Supreme Court, and by num erou s legal 

scholars, political philosophers, and religious ethicists. For the most part, the 

contempo rary debate conc erning SCO has been carried on withou t explicit ref erence to discussions of SCO by the classic just-war theo rists.1

 Th e few docu ­

men ts which cite the just-w ar trad ition have arrived at appa rently contradictory 

conclusions.

'T h e following are amo ng the most imp ortant recent analyses of the SCO question

(documents are listed in chronological order by year and in alphabetical order within each 

year ): In Pursuit of Equity: Who Ser ies Wh en Not All Serve? Report of the Nation al 

Advisory Commission on Selective Service (W ash ing ton , D.C.: U.S. Governmen t 

Printing Office, 19 67 ), esp. pp. 48-51; James Finn, ed., A Conflict of Loyalties:

The Case for Selective Conscientious Objection (New Yo rk: Pegasus, 19 68 ); Edward 

LeRoy Long, Jr., War and Conscience in America (Ph iladelph ia: We stminster Press, 19 68 ), 

pp. 106-120; Willia m V. O'Brien, "Selective Conscientious Objection and Internationa l 

Law,” Georgetown Law Journal 56 (Ju ne, 19 68 ), 1080-1131; Ralph Potter, "Conscientious 

Objection to Particular Wa rs,” in Religio n and the Public Order, No. 4, edited by Donald 

A. Giannella (Itha ca, N.Y .: Cornell University Press, 19 68 ), pp. 44-9 9; Paul Ramsey, 

"Selective Conscientious Objection,” in Th e Just War: Force and Political Responsibility

(New York: Charles Scribner’s Sons, 19 70 ), pp. 91-137; Michael Walzer, "Conscientious 

Objection,” in Obligation: Essays on Disobedience, War and Citizenship (Cam brid ge, 

Mass.: Harvard University Press, 19 70 ), pp. 120-145; Kent Greenawalt, "All or Nothi ng 

at All: The Defeat of Selective Conscientious Objection,” in Th e Supreme Court Review:

1971, edited by Philip B. Kurland (Chicago: University of Chicago Press, 19 71 ), pp. 

31-94; Joh n A. Rohr, Prophets With ou t Honor: Public Policy and the Selective Conscientious Objector, Studies in Christian Ethics (Nash ville: Abin gdon Press, 19 71 ); U.S. Suprem e Court, Gillette v. United States and Neg re v. Larsen et al., U.S. [Supreme

Court] Reports 401 (October Term, 19 70 ), 437-475 (case decided March 8, 19 71 ); 

David Malament, "Selective Conscientious Objection and the Gillette Decision," Philosophy

and Public Affa irs, I (Sum mer, 19 72 ), 362-386. For further bibliography see Roh r, 

Prophets, pp. 185-188. While many of the documents listed above refer to the just-war 

tradition in general terms, discussion of the theorists' views on the specific issue of SCO 

occurs only in the writings of Long, Roh r, and Malam ent, and in Justice Douglas's dissent 

from the majority decision in Negre v. Larsen.

LeRoy W alte rs (Ph.D., Yale) is Director of the Center for Bioethics at Georgetown University’s Kennedy Institute for the Study of Human Reprodu ction and Bioethics. 

This article is based on a paper presented to the AAR Ethics Section at the International 

Congress of Learned Societies in the Field of Religion, Los Angeles, September 5, 1972.
191

Perhaps the most striking instance of divergence in interpreting the tradition 

occurred in 1971. John Rohr, in his important study entitled Prophets With out

Honor, advanced the thesis that, according to the Catholic just-war tradition, 

conscientious objection to a particular war is seldom a moral obligation.2 On 

the other hand, Supreme Court Justice William O. Douglas appealed to the 

tradition in support of a somewhat different view. Basing his position on a 

brief prepared by John Noonan and colleagues,3

 Justice Douglas dissented from 

the majority opinion in the SCO-case Negre v. Larsen, arguing that, according to 

Vitoria and other authorities, "a Catholic has a moral duty not to participate in 

unjust wars.”4

The aim of this essay is to survey in systematic fashion the views of the 

classic just-war theorists concerning SCO. Such an overview will serve to supplement present-oriented discussions of SCO by providing a historical perspective. 

It may also help to explain seeming contradictions in the interpretation of the 

just-war tradition.

The essay itself is divided into three parts, which correspond to three major 

questions discussed by the classic just-war theorists themselves:

1. W hat is the citizen’s presumptive duty, to obey a summons to participate in 

warfare or to abstain from participation?

2. Under wha t circumstances, if any, is SCO morally justified?

3. Should governments make legal provision for conscientious objectors to particular wars?

Two clarifications are in order before we examine the first of these three 

questions. The theorists chosen for inclusion in the survey have been selected 

on the basis of two criteria: (1) they are regarded by historians of international 

law and the just-war tradition as the most representative, creative, and influential 

just-war theorists; and (2 ) their writings explicitly discuss the question of 

SCO. On the basis of the first criterion, the large number of theorists in 

the western tradition can be limited to approximately eight: Cicero, Augustine, Gratian, Thomas Aquinas, Vitoria, Suarez, Gentili, and Grotius.5

 The second criterion excludes Cicero and suggests major concentration on the writings 

of Vitoria, Suarez, and Grotius, who analyzed the SCO issue most extensively 

and systematically.

‘ Rohr, Prophets, pp. 109-123.

’ Richard Harrin gton; Leigh Athearn; Stuart J. Land; and Joh n T. Noonan, Jr. , Negre

v. Larsen: Reply Brief on Behalf of Petitioner (Supreme Court, October Term, 1970, No. 

32 5) .

‘ Gillette v. United States, U.S. [Supreme Court] Reports 401 (October Ter m, 1970) 

470-471 .

5

 For evidence on this point see Robert Regout, La doctrine de la guerre juste . . .

(Pari s: A. Pedone, 19 34 ), pp. 79-93, 152-185, 194-230, and 274-278; Joachim von 

Elbe, "The Evolu tion of the Jus t War in International Law,” Ame rican Journal of International Law 33 (1 939), 667-669, 674-680; and Arthur Nus sbau m, A Concise History

of the Law of Nations , revised edition (New York: Macmillan, 19 53 ), pp. 10-16, 79-114.
192

The second preliminary clarification concerns the precise purpose of the 

essay. In intention at least, the present study concentrates on historical rather 

than normative ethics. It seeks to examine and compare the views and arguments of several ancient experts, all of whom understood themselves to be within 

the just-war tradition. A historical gulf separates us from even the most recent 

of these theorists, Hugo Grotius, who died in 1645. If one recalls that the 

musket and improved cannons were the ultimate weapons in Grotius’ day, that 

most seventeenth-century soldiers were either professionals or mercenaries, and 

that the prevalent pre-modern form of government was monarchical, one begins 

to sense the depth of that gulf.8

 This historical distance does not render the 

views of the classic theorists either invalid or irrelevant. It does suggest, however, that any effort to apply their thought concerning SCO to twentieth-century 

ethical decision-making must take into account a rather significant hermeneutical 

problem.

The Citizen ’s Presumptive Duty

The first question asked by most just-war theorists was whether resort to 

war is ever morally justified. Phrased in the most general terms, their answer 

was: The prince is permitted to resort to war only as a last resort, after all nonmilitary means o f settling a dispute have been tried and have failed. In other 

words, the prince’s prima facie duty was to abstain from war.7

One might expect the theorists to have argued, analogously, that the presumptive duty of the subject or common citizen was to avoid military action. 

Generally speaking, however, they did not so argue. In the opinion of most 

just-war theorists, the prince’s decision to wage war carried sufficient moral 

weight to reverse the presumption. Thus the majority view was that if the 

prince called to arms, the subject’s prima facie duty was to obey and participate 

in warfare. In short, the burden of proof lay with the selective objector.8

• For an attempt to reconstruct the historical setting o f sixteenth- and seventeenth-century 

just-war tho ugh t see LeRoy Brandt Walters, Jr., "Five Classic Just-W ar Theories: A Study 

in the Th ought of Thomas Aquinas, Vitoria, Suarez, Gen tili, and Gro tius” (Ph .D. dissertation, Yale University, 1971) pp. 205-213, 219-269.

7 Thomas Aquinas, Sum ma theologiae (S T ), II-II, 40, 1, objections and answer; Francisco de Vitoria, De jure belli (D JB ), prolog, 1, and 60; Francisco Suarez, "De he llo '

(D B ), I, 1; IV, 1, 5, and 7 (th e disputation "On W ar” is part of the treatise on charity 

in the work entitled Th e Thr ee Theological Vir tue s); Alberico Gentil i, De jure belli

(D JB ), I, 5 (pp. 27 -30); I, 13 (p. 58); I, 17 (p. 79); and Hugo Grotius, De jure belli

ac pacis (J B P), I, 2, 1-9; II, 24, 8-10. Unless otherwise noted, all citations from the 

writings of Vitoria, Suarez, Gentil i, and Grotius refer to the Classics of Inte rnation al Law 

(C IL) translations of their works. The CIL volum e on Suarez bears the title Selections

from Three Works.

’ See, for example, Vito ria, DJB , 25, 31; Suarez, DB, VI, 8-9. The late Joh n Courtney 

Murray reasserted this majority view in his essay "W ar and Conscience," in A Conflict of

Loyalties, pp. 26-27; see also Paul Ramsey, "Can a Pacifist Tell a Just W ar?” Just War,

pp. 274-275.
193

The theoretical foundations for the majority position were laid by Augustine 

and Thomas Aquinas. In his work Contra Faust urn Augustine had written:

A just man, even if he fights und er a sacreligious king , can lawfully fight when 

the king commands it— as serving the order of peace— if it is certain that what 

he is commanded to do is not opposed to the precept of God or if it is not certain 

whether or not it is opposed to the divine precept. Thu s the iniq uity of the one 

com man ding makes the king guilty, but the order of serving makes the soldier 

innocent.’

This quotation from Augustine found its way into the canon law in the twelfth 

century and exerted a significant influence on the subsequent just-war tradition.10

Although Thomas Aquinas did not explicitly discuss the question of conscientious objection to warfare, he did turn critical attention to an analogous 

life-and-death issue, namely, the dilemma of an executioner who is ordered by 

a judge to kill an innocent man.

He tha t carries out the sentence of the judge who has condemned an innocent 

man, if the sentence contains an inexcusable erro r, he should not obey, else there 

would be an excuse for the executions of the martyrs: if however it contains no 

man ifest injustice, he does not sin by carrying out the sentence, because he has 

no rig ht to discuss the judgment of his superior; nor is it he who slays the innocent man, but the judge whose minister he is.11

Thomas’s example was also cited frequently by later just-war theorists.12

Two sixteenth-century Spanish moral theologians, Vitoria and Suarez, most

clearly articulated the majority position on the citizen’s presumptive duty. In 

the first place, they argued that the subject had no moral obligation to investigate the cause of a war; rather, he could participate in good conscience provided 

that the war was not clearly unjust.13 Vitoria, in fact, distinguished various 

degrees in the responsibility-to-know. He clearly asserted the duty of the prince, 

senators, petty rulers, and members of the royal council to examine carefully the 

alleged grounds for going to war. With typical candor Vitoria explained why 

ordinary subjects did not share in the same responsibility:

’ Contra Faustum, 22, 75; cited by Gratian in the Decretum, Pt. II, C. 23, qu. 1, c. 4 

(Friedberg e dition, I, col. 893; auth or's t rans latio n) .

10 Frederick Hooker Russell, "Th e Medieval Theories of the Just War according to the 

Romanists and Canonists of the Twelfth and Thirteenth Centurie s” (Ph.D . dissertation, 

Johns Hopkins University, 19 69 ), pp. 211, 277, and 340, n. 61; Vito ria, DJB, 31; Suarez, 

VI, 8; Gen tili, DJB, I, 25 (p. 12 5); and Gro tius , JBP, II, 26, 4, 3.

11 ST, II-II, 64, 6, ad 3 (Do minican Fathers’ tra nslat ion ).

11 See, for example, Vito ria, DJB, 22 and 31; Suarez, DB, VI, 8; and Grotius, JBP, II,

26, 4, 9.

“ Vito ria, DJB, 22 and 25; Suarez, DB, VI, 8. Gentili added: "It is not for subjects 

to inquire too curiously which side took up arms with the better rig ht” (DJB , I, 25 [p. 

126; CIL translation ]).
194

Oth er lesser folk who have no place or audience in the prince’s council or in 

the public council are under no obligation to examine the causes o f war but may 

serve in it in reliance on their betters. This is proved, first, by the fact that it 

is impossible and inexpedient to give reasons for all acts of state to every member 

of the commonalty. Also by the fact that men of the lower orders, even if they 

perceived the injustice of a war, could not stop it, and their voice would not be 

heeded. Therefore, any exam ination by them of the causes of a war would be 

futile. Also by the fact that for men of this sort it is enough proo f of the justice 

of war (unless the contrary be quite certain ) that it is being waged after public 

counsel and by p ublic authority. Therefore no further examination on their part 

is needed. 1*

The majority position on the citizen’s presumptive duty was also apparent 

when Vitoria and Suarez discussed the problem of doubtful cases. Both theorists 

agreed that as long as the justice of a war was in doubt, the subject was morally 

obligated to participate. 16 The primary justification for this position was a 

lesser-of-two-evils, consequentialist argument. If the citizen obeyed his prince 

in a doubtful cause, Vitoria and Suarez noted, he merely fought with an uncertain conscience. If, on the other hand, the soldier refused to fight merely because of doubts concerning the justice of a war, he exposed his nation to disaster. 

As Vitoria put it, "The State would fall into grave peril and the door would be 

opened to wrongdoing.”16 Suarez added that if subjects disobeyed in doubtful 

situations, "It would be impossible for princes to defend their rights, and this 

would be a serious and general misfortune.”17

There was, however, a minority strain in the just-war tradition which, if 

it did not reverse the citizen’s presumptive duty, at least severely qualified it. 

The most systematic spokesman for this minority view was the Dutch theorist, 

Hugo Grotius. In full awareness that he was challenging traditional assumptions, GrotiiLs attack gj-tbrpp_pilln £s of rhe_ mainritv position .

First, Grotius at least implied that potential participants in actions which 

involve the taking of human life should investigate the situation before taking 

part in such actions. Alluding to an analogous case which had often been cited 

to support the opposite view, Grotius commented:

. . . It is probable tha t even the executioner, who is going to put a condemned 

man to death, should know the merits of the case, eith er thro ugh assisting at 

the inquiry and the trial or from a confession of the crime, in such a degree that 

it is sufficiently clear to him that the criminal deserves death.1*

“ Vito ria, DJB, 25 (CIL translation ).

“ Vitoria , DJB, 31; Suarez, DB, VI, 8 Suarez did stipu late, however, that if the arguments against the justice of a war significantly outweighed the argume nts in its favor, the 

subject was bound to investigate the matter further (DB , VI, 9 ).

” DJB , 31 (CIL tra nslation ).

17 DB, VI, 9 (CIL t ran sla tio n).

” JBP, II, 26, 4, 9 (CIL tra nslat ion ); see n. 11 above.
195

Grotius also differed with his distinguished predecessors on the question of 

secrecy in wartime. As noted, above, Vitoria and Suarez had argued that expediency often prevented a prince from making public the reasons for his war-policies. 

Grotius’ retort bordered on cynicism:

Although this may be true of persuasive causes, it is not true of justifiable 

causes, which oug ht to be clear and open and, further, should be such as may 

and ought to be openly set forth .”

To this response Grotius appended a polite pragmatic warning: the prince who 

cannot clearly explain the cause of a war may discover that his skeptical soldiers 

lack enthusiasm for the war-effort.20

Finally, in perhaps his boldest departure from tradition, Grotius launched 

a frontal assault on the majority view concerning doubtful cases. He began by 

resurrecting the opinion of Adrian, a Dutch theologian, who had stipulated that 

in cases of doubt the subject should abstain from war. Without unequivocally 

adopting Adrian’s position, Grotius indicated strong sympathy for it.21 But 

Grotius went a step further: He stood the traditional lesser-of-two-evils argument on its head. As we hayp nnrpJ Virnrin and Suarez had aryued that in 

doubtfuhcases it was morally safer rn fii’ht tli.m to ri>k- h rm u in g nnp's rn nn qy

Grotius described the m n r i l r l i U m m i d i U ^ r f n r l y a n d r a m p t n

clusion:

Disobedience in things of this kind , by its very nature, is a lesser evil than manslaughter, especially than the slaughter of many inno cent men.”

In summary, according to the majority view in the classic just-war tradition, 

the citizen’s presum ptive duty was rn obey his prince’s call to arms. The primary .reason for this presumption against SCO was the theorists’ concern for the_ 

preservation of rhe stare as. a via ble agent of justice. fcrotTllgJon the other hand ? 

was the chief spokesman for a minority view which, if it did not reverse the 

presumption in favor of obedience, at least seemed to provide an expanded 

theoretical basis for SCO.

The Just ification of Selective Cons cientious Obje ction

Ajiresum pnotuagainsj SCQJs jreciselv-no t an absolute prohibition of SCO. 

Implicit in the term "p^esumjxjon” is .the possibilily that other considerations 

wi 11 jiverrid^_the jre sumption. Thus, it is not surprising that several of the 

major just-war theorists discussed the Grenzfall, the situation in which the 

prima facie duty to follow one’s prince to war was transcended or reversed.

” JBP, II, 26, 4, 5 (CIL t ran sla tio n).

” JBP, II, 26, 4, 6-7.

21 JBP, II, 26, 4, 4-8. Adrian, who late in life became Pope Hadrian VI, had expressed 

his view in a work entitled Quaestiones quodlibeticae, II; both Vitoria (DJB , 30-31 ) and 

Suarez (DB , VI, 9) had explicitly rejected Adrian’s argument.

” JBP, II, 26, 4, 5 (CIL translatio n; italics ad ded).
Generally speaking, the architects of the just-war tradition adopted the standard natural-law position on the question of disobedience to political authority. 

One of the major theorists, Thomas Aquinas, gave classic expression to the 

natural-law view in his treatise on law, as well as in numerous other passages 

of the Summa theologiae. Although Thomas did not explicitly relate his analysis 

of disobedience to the issue of military service, he set clear ethical limits o n th p 

citizenls general obligation toobev temporal ju le rs .

Man is bound to obey secular princes insofar as this is required by the order of 

justice. Wherefore if [the prince] . . . commands what is unjust, his subjects 

are not bound to obey him, except perhaps accidentally, in order to avoid 

scandal.23

The later theorists applied this general doctrine_pf justifiable civil disobedience to the specific problem^of partiopation^m^war. Without perc eption tb p y 

regardedSff)as_a_t>Qssible response rn r h * r o ll rn r o t a r y «> rv ip > In the case 

of Suarez and Gentili the SCO-option was described in rather perfunctory fashion. Suarez noted that if the justice of a war was "extremely doubtful,” the subject was morally obligated to investigate the situation before participating. In 

addition, Suarez implied that SCO was justified if the injustice of a war was 

"clear,” "evident,” or "manifest.”24 Gentili, an English contemporary of Suarez, 

observed that no soldier could be held legally accountable for fighting in an 

unjust war. Apparently not entirely satisfied with this juridical solution, Gentili 

went on to acknowledge that a subject could offend in the internal forum of 

conscience by participating in a war which he knew to be unjust.28

It was left to Vitorjn and Grotius. however, to provide a more thoroughgoing analysis of the grounds for SCO. JBoth theorists cleark Regarded selective 

obiectinn as, a moral, obligation in certain rircumstajices. In the writings of both, 

subjective as well as objective factors were taken into account.

The objective prerequisite for SCO was a clearly-unjust war. Grotius was 

content to state this condition in a single sentence:

If those under the rule of another [i.e., subjects] are ordered to take the field, 

as often occurs, they should altogether refrain from so doing if it is clear to 

them tha t the cause of the war is unjus t."

Vitoria, on the other hand, explained the objective grounds for SCO in somewhat 

greater detail. His most comprehensive statement concerning SCO was formulated in the following terms:

If the injustice of a war is clear to a subject, he oug ht not to serve in it, even 

on the command of his prince. This is clear, for no one can auth orize the killing 

of an inno cent person. But in the case before us the enemy are innocent. There23ST, II-II, 105, 6, ad 3 (Do minican Fathers’ translation ).

34 DB, VI, 8-9.

” DJB, 1,25 (p. 12 6).

" JBP, II, 26, 3, 1 (CIL translation ).
197

fore they may not be killed. Again, a prince sins when he commences a war in 

such a case. But "not only are they who commit such thin gs worthy of death, 

but they, too, who consent to the doing thereof” (Roman s 1:3 2). Therefo re 

soldiers are not excused when they fight in bad faith . Again, it is not lawful 

to kill inno cent fellow-citizens at the prince's comm and. Therefore not foreigners eithe r.17

In elaborating his position on SCO Vitoria sought to clarify the meaning of 

"clear injustice” and to emphasize the citizen’s responsibility-to-know.

. . . The proofs and tokens of the injustice of war may be such that ignorance 

would be no excuse even to the subjects who serve in it. This is clear because 

such ignorance [on the part of subjects] mig ht be deliberate and adopted with 

evil intent toward the enemy.28

A passage in Vitoria’s commentary on the Summa theologiae of Thomas 

Aquinas helped to dramatize the definition of deliberate ignorance:

If the ignorance is crass and, so to speak, wilful, it does not serve as an excuse.

Accordingly, I hold that if there are indication s that a war is not just, — [if, 

for example,] I am in doubt, but close my eyes, saying, "W hat do I know of 

the matter ?” because I feel affection for my king — then I will not be acquitted 

of sin. 5®

To clinch his point that the citizen had a responsibility to recognize and 

avoid obvious moral evil, Vitoria cited three historical precedents which would 

undoubtedly have made a deep impression upon his Spanish audience. If subjects were not responsible for participating in the injustice of their leaders, he 

declared, then

[Moslem] 80 unbelievers would be excused when they follow their leaders to war 

against Christians. . . . Also, the soldiers who crucified Christ, ignoran tly following Pila te’s order, would be excused. In addition, the Jewish mob would be 

excused, which was led by the elders to shout "Away with Him , crucify Him.” 81

27 DJB, 22 (CIL translation; slightly revised on the basis of comparison with the Latin 

original.)

88 DJB, 26.

28 Com mentary on the Sum ma theologiae of Thom as Aquinas, II-II, 40, 8; translated 

by Gwladys L. W illiams in James Brown Scott, Th e Spanish Origins of International Law,

Vol. I: Francisco de Vitoria and His Law of Nations (Oxfo rd: Clarendo n Press, 19 34 ), 

p. cxix (translatio n slightly revised on the basis of comparison with the Latin original).

80 Vitoria’s general position was that Indian subjects often foug ht because of invincible 

ignorance; he did not usually extend such tolerance to Moslem soldiers. Compare the 

relatively mild prescriptio ns of the De Indis with the rather harsh measures counten ­

anced in DJB, 26, 48, and 60.

31 DJB, 26 (slightly revised on the basis of comparison with the Latin orig inal). Gentili cited an add itional example of a clearly-unjust war; in his opinion, "Th e [Latin American] Indians were not blameless in fightin g for a king who made war unjustly’ (DJB, I, 

25 [p. 12 6] ). Note also Thom as Aquinas’ view tha t the executioners of the martyrs were 

morally responsible for their actions (see n. 11 above).
198

The subjective prerequisite for SCO was a citizen’s conviction that a war 

was unjust. According to Vitoria, such a belief was sufficient to justify SCO, 

regardless of whether the war was in fact just or unjust. In his words,

. . . Subjects whose conscience is against the justice of war may not engage in it, 

whether they be right or wrong. This is clear, for "whatever is not of faith is 

sin ” (Roman s 14: 23 ).”

Writin g about seventy-five years after the death of Vitoria, Hugo Grotius reiterated and endorsed Vitoria’s view.83

In summary, several of the major just-war theorists discussed the circumstances in which SCO was morally justified. There was general agreement among 

the theorists that no citizen was obliged to participate in a war that was clearly 

unjust. Vitoria and Grotius added two refinements to this general consensus. 

They asserted unequivocally that the subject had a moral duty not to take part 

in a clearly unjust war. Second, according to Vitoria and Grotius, a citizen’s 

sincere conviction that a particular war was unjust obligated him to abstain from 

military participation.

Legal Provision for Selective Cons cientious Objectors

When we look to the classic just-war tradition for statements concerning 

SCO and the law, we find that the major theorists wrote comparatively little -on 

the issue. A partial explanation for this relative silence is that the just-war 

theorists concentrated primary attention on the spheres of morality and international law rather than on the provisions of domestic or intranational law. In 

the case of the later theorists, the silence can also be traced in part to military 

recruitment practices of their times. Virtually all soldiers in armies of the 

sixteenth and seventeenth centuries were volunteers, who fought either as professionals in national standing armies or as mercenaries ready to offer their services to the highest bidder.34 In a context where voluntary participation in 

military service predominated, the problem of legal provision for SCO was u nderstandably somewhat less acute.

Of the theorists discussed in this essay, only Hugo Grotius explicitly considered how the state should deal with the question of selective conscientious objection. He recommended that administrative procedures be established to insure that no citizen—whether pacifist or selective objector—would be compelled to participate in war against his conscience. Concretely, he proposed that 

a special tax should be levied on selective objectors.

“ DJB, 23.

” JBP, II, 26, 3, 5.

84 Lynn Montross, War Thr ough the Ages (New Yo rk: Harper & Row, 19 44 ), pp. 

204-205 , 266-267; cf. Walters, "Five Classic Just-W ar Theories,” pp. 207-209.
199

. . . If the minds of subjects cannot be satisfied by the explanation of the cause 

of a war, it will by all means be the duty of a good magistrate to impose upon 

them extraordinary taxes rather than military service, particularly where there 

will be no lack of others who will serve."

At no point did Grotius clearly state the warrant for this policy-recommendation. One can perhaps surmise that the logic of his just-war position impelled 

him to seek institutional arrangements which would make possible the kind of 

discriminating ethical judgments which he advocated. In addition, however, 

one finds evidence that Grotius had been sensitized to the problem of SCO by 

the experience of contemporary Christian conscientious objectors and by pacifistic emphases within traditional Christian ethical thought. In the passage immediately following his discussion of official provision for SCO, Grotius wrote:

. . . Even if there can be no dou bt respecting the cause of war, still it does not 

seem at all right that Christians should be compelled to serve against their will; 

the reason is tha t to refra in from military service, even when it is perm issible to 

serve, is the mark of somewhat greater holiness, which was long demanded from 

ecclesiastics and penitents, and recommended in many ways to all other persons."

To summarize, the question of legal provision for SCO was largely ignored 

by the classic just-war tradition. Grotius, however, recommended the establishment of administrative machinery to accommodate the moral convictions 

of the selective objector.

In conclusion, we return to two points raised in the introduction to this essay. 

The apparent disagreement between John Rohr and Justice Douglas seems, in 

light of the foregoing historical survey, to be readily understandable. Rohr is 

certainly correct in arguing that, according to the Catholic just-war tradition, 

SCO is seldom a moral obligation. As we noted in the first part of this essay, 

the major Catholic theorists accepted the citizen’s presumptive duty to go to 

war and treated conscientious objection to military service as a Grenzfall, or 

limiting-case. However, Rohr fails to accord due emphasis to Vitoria’s clear 

statement that in certain circumstances SCO becomes a moral duty.37 Justice 

Douglas, on the other hand, accurately reflects the viewpoint of Vitoria when 

he asserts that "a Catholic has a moral duty not to participate in unjust wars.”

“ JBP, II, 26, 5, 1 (CIL translation; pun ctua tion slightly rev ised); cf. JBP, II, 26, 5, 

title.

“ JBP, II, 26, 5, 2 (CIL tra nslation ). For a discussion of Gro tius’ relationship to 

contemporary Dutch pacifists see Walters, "Five Classic Just-W ar Theories,” pp. 253-255 , 

283-284.

n

 My criticism is not that Rohr’s inte rpre tati on of the Catholic just-war trad ition is 

incorrect, but rather that it is one-sided. To illustrate, on p. 112 of Prophets W itho ut

Hon or Rohr quotes Vitoria ’s "third proposition” concern ing SCO (D JB , 25). However, 

be does not cite Vitoria’s "first propositio n” and "fo urth propositio n” (DJB , 22 and 26), 

both of which dearly assert that SCO can become a moral obligation (see nn. 27 and 28 

ab ov e).
20 0

As the second part of this essay has demonstrated, Vitoria unequivocally asserted 

the citizen’s obligation to avoid any collaboration in military injustice. Two 

other facets of Vitoria’s thought remain unmentioned in the dissent of Justice 

Douglas, however—Vitoria’s emphasis on the citizen’s presumptive duty to obey 

and his insistence on subjective or objective certainty concerning the injustice 

of a war.

The divergent conclusions of Rohr and Justice Douglas serve as an additional 

reminder of the complexities involved in any effort to interpret or update the 

just-war tradition. This hermeneutical problem has at least three dimensions. 

First, within a single theorist— for example, Vitoria—differing tendencies and 

emphases appear which the would-be interpreter must hold in tension. In the 

second place, on certain issues there is a lack of consensus within the tradition. 

Such internal contradictions virtually compel the modern interpreter to choose 

one view—perhaps the majority view—and to reject others. Finally, the contemporary interpreter must seek to apply an ancient tradition to a situation 

characterized by post-monarchical forms of government, military conscription in 

wartime, and highly-sophisticated weapons of destruction. In short, it is difficult, but possible, to reconstruct what the major just-war theorists said about 

SCO within their varied historical contexts. What their views mean for our 

own attempt to think through an ethic of war and peace is much less clear.38

“ I wish to thank Professors Charles E. Curran and James F. Childress for their helpful 

comments on an earlier version of this article.
201

Mr. Kastenmeier. The ho ur is late . We still have two witnesses. 1 

would next like to welcome Mrs. Jac queli ne Levin e, c och airm an, Governing Council, Americ an Jew ish Congress.

We have your s tatem ent which we will accept in its totality. It is a 

fa irly lo ng s tatem ent . I won der if I could recommend that you proceed 

dir ectly to th at po int of yo ur sta tem ent dealing with congres sional 

pow er since we w ill be discu ssin g each of th e bills in more deta il later.

TESTIMONY OF JACQUELINE LEVINE, COCHAIRMAN, GOVERNING

COUNCIL, AMERICAN JE W IS H CONGRESS /

Ms. Levine. Yes; th an k you very m uch. The Am eric an Jewi sh C ongress welcomes this op po rtu nity to sp eak w ith yo u t his m orning about 

the pending le gislation d ealing with amnesty for persons who resisted 

U.S . partic ipation in the war.

I am espe cially pleased, too, th at these heari ng s are taki ng place so 

th at the whole Na tion can have its conscienceness raised and can be 

extend ed the edu cation al op po rtu nity th at those of us in the room 

tod ay are h avi ng. I have lear ned al rea dy from the p revious discussions 

and th e statem ent s made.

The Am erican Jew ish Congress is a membership org aniza tio n and 

we are concerned w ith th e pre ser vation and extensio n o f th e Am erican 

dem ocratic way of life and with the sur viv al of the Jewi sh cu ltu ral 

tra ditio n.

We have a Go ver nin g Council whi ch is the hig hest policymakin g 

body between our conventions which las t Ju ne drew up a resolution 

which I shall not read . It is att ached to our statement, and it supp orts 

bro ad amnesty, or to be more specific, we su pp ort univer sal an d un ­

con ditional amn esty.

My statem ent , and I will tr y to be brie f, is s ubmitted in accorda nce 

with th at resolutio n.

We believe th at total amnesty sho uld be exended to all men who 

ref used to partic ipate in the wa r in Ind ochin a f or reaso ns of conscience.

The subcomm ittee ha s b efore it a num ber of bills, and we feel th at a 

numb er of the pro vision s of H.R. 3100 embody su bstan tia lly our 

position.

I would like to make jus t a few initial commen ts before com ing to 

the two main poin ts.

It. has l)een said ag ain and again , bu t I wa nt to say it ju st once more, 

th at amnesty does not mean for giv ing . Presiden t Nixon said it is an 

act of forgiving an d that is a missta tem ent. Am nesty mean s to forget , 

to pu t beh ind you. Fo r those of a more poetic inclination, there is a 

lovely wa y to de scrib e it as the p rin cip le of the blessed act of oblivion. 

It is the only way, we feel, t o place the conflicts an d tensions a nd deep 

divisions created in o ur society by this situatio n beh ind us. W e believe 

that it is in the intere st of social justice and reconciliation, th at it is 

the law ’s wav of undoing what the law has done.

This is an othe r point which has been ref erred to alr eady th is mo rning. Peo ple have said th at this would not be a law ful thing , it would 

create a bad prec edent fo r the futur e. Am nesty is law, it is a supersed ing law. By res tor ing pu blic confidence in the law it serves th e law. 

It is n ot license. It does not say th at you shirk your resp onsibilities in 

the futur e, but it reaflirms the law. It also reaffirms our religious and 

31-6 58— 74------ 15
202

American heritage; that is, the dependence of our society on higher 

moral law. This should be underscored, t hat amnesty and pardon are 

essential parts of our legal system.

We deal with the unusual circumstances of this war certainly and 

the amnesty we propose would not apply to future conflicts.

You will be hearing testimony about past amnesties. Certainly, 

President Lincoln’s magnanimity toward the Southerners who 

engaged in rebellion and, therefore, were technically guilty of treason 

is worth remembering. But that is past. What we are talking about is 

the most unusual, the horribly unusual conditions tha t the war in 

Indochina placed upon this Nation for one terrible decade. That war 

was unique and stands apart from all other wars and ought to be 

viewed as sui generis. There never was a war objected to by so many 

citizens. Representative Kastenmeier, you yourself gave some figures 

at the beginning. Mr. Schwarzschild’s eloquent statement gave some 

figures. We have them in our statement.

Be it said that we are really dealing with hundreds of thousands of 

people. We are talkin g about men convicted for dra ft violations, 

deserters at large, those tha t resisted and live in exile abroad and the 

tremendous number of veterans who have less than honorable discharge which were given without any due process or as a result of 

courts-martial, and, as has been said, these less than honorable discharges were imposed in disproportionate number upon minority 

groups and less educated and poorer segments of society.

There were hundreds of thousands of Americans who protested the 

war. Thousands of those were arrested and their charges range from 

mild to the serious.

There are two major points which our resolution and our statement 

refer to, and which I am going to ta lk about now. The first is the categories of those to be amnestied. We would include resisters, deserters, 

exiles, and those veterans who received less than honorable discharge. 

We make no distinction between d raft violators and dra ft resisters on 

the one hand and on the other hand deserters, because there was only 

one difference, we feel, among these men, tha t is when they decided 

to resist. Some of them, for the most part college students who had 

access to counseling and could speak to people who understood, decided that the war was wrong for them and t hat they could resist. But 

many others only realized the meaning a fter they were in the Army 

and their course was desertion. The deserter, it has been demonstrated, 

is more often the one with less well-formed ideas of resistance until 

his induction. We believe amnesty, therefore, to be valid for both those 

who violated the law against desertion and those who violated the 

Military Selective Service Act.

The Armed Forces have granted less than honorable discharges. 

These discharges were imposed disproportionately, as I have said, upon 

poor and less-well-educated people.

My second point deals with the matter of conditions or alternative 

service to be imposed upon those amnestied. We do not believe that 

there ought to be any conditions imposed at all. My organization does 

not assume that those men who resisted fighting did so because they 

wanted to get away with something. We believe they acted as they did 

because they disagreed with the very premise of the war. Their actions 

caused them gre at pain and their families terrible suffering, and they
203

ar e st ill in pa in and stil l suffering. It is no picnic, no bed o f roses, to 

be liv ing in exile somewhere, and it is no pleasu re to be in hiding , 

certa inly no t fo r the fam ilies: and I, too, hav e spoken to fam ilie s of 

yo un g men who are abroad . Th ey did no t do wh at the y did because 

the y th ou gh t the y could get away with it. They did it because there 

was som eth ing deep insi de of them th at said the y could not fight this 

wa r because the y fe lt it was imm oral. To dem and now th at the y pay 

a fu rther price, th at the y spe nd 2 years doing heaven know s wha t, 

whi ch pro bably would not be very productiv e to society any way, is 

tan tamou nt to sa yin g: “You were gu ilt y an d you have to pa y some type 

of service. The Government was ri ght all along. ” Th is is a punitive 

concept and som eth ing ,we feel, th at h as no plac e in Am eric a in 1974 

when we are moving towa rd peace. It is a judg men t whi ch amnesty 

legislation, we believe, sho uld not make.

Fur th er , it seems to me to be in the very best intere st of ou r whole 

society to bin d up our wounds, not to exa cerbate them . Ou r Na tion is 

still deeply div ide d over the war, an d now to have ela borate admi nist rativ e pro ced ures wi th board s and testim ony and all the res t o f t he 

inq uir y into each in dividu al’s act of resistance, we feel, would ju st 

prolo ng t he agon y. We believe o ur entire society and pa rticul ar ly o ur 

young people were vict ims of a policy whi ch the y did no t know how to 

con trol. Yes, we made and ha d ou r pro tests. But these yo ung people 

were real ly victimized, and o thers are in exile. A ll of them are victims, 

and the re sho uld no t be any fu rthe r punishm ent. We need everybody 

back to help build a decent and str on g Am erica. We do no t need a 

reopen ing of the deb ate over Vietnam, w hich to re us a par t f or 10 years.

I think it is im po rta nt, too, to say th at a decision on an amnesty bill 

can be m ade w ith ou t reference to one’s position on the w ar in Vietnam. 

A decision fo r am nesty leg islation would n ot imply th at this co mmittee 

has m ade a n egative judg me nt on the w ar. True, my organizatio n did 

oppo se U.S . pa rti cipa tio n in the conflict, bu t we do no t believe th at 

reopen ing th at debate is constru ctiv e, or th at there will be an ything 

gaine d by it. Ra ther, we propose th at a mnesty, for giv ing , oblivion be 

dec lare d as the way to pu t ou r conflict b ehind us and move ou r people 

forw ard . A mn esty is not to be tho ug ht of as ba sed on one’s policy , only 

on th e nee d fo r it now to heal o ur N atio n.

I wa nt to close wi th a rem ind er th at was giv en to ma ny o f us pr iv ­

ileged to know and to he ar the lat e Dr . Ab raha m Jo sh ua Hes chel, a 

revered rabbi and pro fessor of Je wish ethics a t th e Jew ish Theolo gica l 

Sem inary. A t t he inte rre lig iou s con fere nce on amnesty in Ma rch 1972, 

he ha rked back to the words of Leviticu s an d said , “Th ou shall not 

bear a gru dge agains t the children of you r people.”

A broad amnesty bill, too, wou ld be stat in g its belief th at ou r Na tio n 

must forget the w ar a nd i ts pa ralle lin g divisiveness. I t w ould be s ta ting we are be yond vindic tiveness , an d i t w ould be ma king a gian t strid e 

towa rd bringing our country togeth er.

In closing. I rep eat my orga nizatio n’s desire and urge t hat a b road 

amnesty b ill be enacted.

Th an k you v ery m uch. Ou r resolution , as I no ted, is a ttached, and I 

will not read it to you.

Mr. Kastenmeier. W ith ou t objection, of course, the resolu tion of 

the Am erican Jewi sh Congress, “R eso lution on Am nes ty, 1973,” 

adopted throug h its governing coun cil, which is att ache d to Ms. 

Levin e’s sta tem ent will also be made par t of t he recor d.
204

[Ms. Levine’s statement follows:]

Statement of J acquft ine Levine on Behalf of the American J ewish

Congress

The American Jewish Congress welcomes this opportunity to be heard by this 

Subcommittee on the subject of pending legislation dealing with amnesty for 

persons who resisted United States participa tion in the Vietnam War. I am 

Jacqueline Levine, Co-Chairman of the Governing Council of the American 

Jewish Congress and President of its Women’s Division.

The American Jewish Congress is an organization of American Jews deeply 

concerned with the preservation and extension of the American democratic way 

of life and with the survival and enrichm ent of the Jewish cultural tradition. 

My statemen t is submitted to this Subcommittee in accordance with a resolution 

adopted by the Governing Council of the American Jewish Congress on Jun e 10, 

1973. (A copy is attached to this statement.) In accordance with that resolution, 

we here express support of a broad amnesty.

We believe that amnesty should be extended to all who were compelled by th eir 

conscience to refuse to par ticipate in the recent hostilities in Indochina—to draft 

resiste rs and evaders, deserters, exiles and those veterans who have been penalized fo r life through less than honorable discharges. This, of course, does not mean 

amnesty for crimes of violence, or for offenses th at would be crimes apart from 

conditions of war or requirements of military service. The amnesty to be given, 

we believe, should mean tota l restoration of legal and political rights. Finally, 

in our view, no condition of altern ate service should be imposed.

the pending bills

We have examined the bills pending before this Subcommittee and believe t ha t 

a number of the provisions of H.R. 3100 (Dellums) embody subs tantially the 

position we express here. Briefly, this bill provides as follow s:

After appropriate findings, H.R. 3100 would provide for amnesty for those 

who have faced or may face criminal action or other adverse treatm ent by the 

government because of specified conduct between August 4, 1964 and the enactment of the bill. The amnesty would be automatic in some ca ses; in others, it 

would be granted by a newdy created Amnesty Commission.

Section 3 of the bill defines amnesty as (1) restoration of all civil and other 

righ ts that may have been lost or limited as a consequence of violation of any 

of the laws covered in Sections 4 and 6; (2) immunization from criminal prosecution for such violations; (3) expunging of records of such violations; (4) 

granting of an honorable discharge to persons who received less than honorable 

discharges because of such violations; and (5) nullification of “all other legal 

consequences” of such violations.

Under Section 4, an autom atic, immediate amnesty would be granted for 

violations of (1) the provisions of the Military Selective Service Act with 

respect to evading or refusing reg istratio n or induction, counseling such refu sal 

or evasion and destructio n of reg istratio n or classification card s ; and (2) various 

provisions of the United States Penal Code dealing with the Armed Forces, 

including those making it a crime to desert or to solicit or advise desertion, and 

to advise or counsel or atte mpt to cause insubordination by any member of 

the Armed Forces with the intent to impair morale or discipline.

Section 5 would establish a five-member Amnesty Commission, with the President. President Pro Tempore of th e Senate, Speaker of the House and the Senate 

and House Minority Leaders each appointing one member. Members would be 

appointed for the life of the Commission an d would be given appropriate administrat ive powers.

Under Section 6, the Commission would be empowered to grant general 

amnesty, as defined in Section 3, to any person who violated any Federal law 

not covered by Section 4 or any state or local law, during the wartime period, 

if the Commission found (1) that the violation “was in sub stan tial part motivated by the individual's opposition to, or protest again st, the involvement of 

the United States in Indochina” and (2) that he was not personally responsible 

for significant property damage or substan tial personal injury to others. The 

bill would furth er provide, however, tha t, where there has been such property 

damage or personal inju ry, the Commission may gra nt amnesty if it finds that 

the conduct “was iu«Hfiable on the basis of a moral or ethical belief deeply 

held by the individual.”
205

Section 6(b ) would empower the Commission to insure the gra nt of an honorable discharge where it was denied by the military in violation of the righ ts 

granted under Section 3 of the bill. Under paragr aph (c), gra nts of amnesty 

by the Commission under Section 6 would be made upon application to the 

Commission. Such an application would have to be made with in four years after the 

effective date of the Act. Fu rth er par agraph s in this Section provide appropriate adm inistrative procedures and judicia l review.

Section 7 would provide for the restora tion of citizenship to any former 

citizen “who states that, he renounced such citizenship solely or partly because 

of disapproval of involvement of the United States in Indochina.'’

Sections 8, 9 and 10 contain custom ary provisions concerning judicial proceedings, appropriations and separability. Section 11 provides th at Sections 4, 6, 

7 and 8 shall take effect upon enactment of the bill.

The identical bills, H.R. 236 (Abzug) and II.R. 5195 (Abzug, Conyers and 

Mitch ell), differ from H.R. 3100 only with respect to the effective date (Section 

11). They provide that Sections 4, 6, 7 and 8 shall take effect on the date of 

cessation of United States military operations in Indochina, with the date to 

be proclaimed by the l’residen t not more tha n thre e months after enactmen t 

of the hill. The other amnesty bills before this Subcommittee are fa r more limited. Thus, 

II.R. 674 (Koch) would (1) express Congressional approval of full or partial 

Presidential amnesty for nonviolent military offenders and other violators of 

Federal laws on such terms as the President might prescribe: (2) authorize 

the Presiden t to restore citizenship to persons who relinquished it because of 

the ir disapproval of United States participation in the Vietnam War: and 

(3) auth orize the Preside nt to grant amnesty or partial amnesty to violators 

of state laws. II.R. 2167 (Roybal) would gra nt full immunity from prosecution and punishment for draft evasion or fail ure to register, but subject to a requirement of 

alte rna tive service. Each individual would have to enter into an agreem ent with 

the government to serve a period of two years in the Armed Forces or in “public 

service.” The latte r term would include service in VISTA, a VA hospital or any 

other Federal employment involving public health and welfare. Other provisions 

would take care of those now serving prison sentences for draft evasion. The b ill 

would also express the sense of Congress that Presiden tial pardons should lie 

granted to those persons who fulfill such an agreem ent or who have already 

served the ir sentences for draft evasion. It is to he noted that this bill would 

not cover dese rters or any of the other categories covered by the comprehensive 

provisions of II.R. 3100.

H.R. 10979 (McCloskey) would gra nt amnesty to any person who evaded or 

refused induction. With respect to deserters, it would empower an Amnesty Commission, set up under provisions virtually identical with those of H.R. 3100, to 

gra nt amnesty if the deserter accepted two years of altern ate service under 

provisions similar to those of H.R. 2167. (This bill, however, would require that 

such service be perform ed at the “lowest pay grade” used in the service where 

the work is done.) It also contains app ropriate provisions dealing with persons 

alrea dy convicted of evasion and expresses the sense of Congress in favor of 

Presidential pardons.

H.R. 10980 (McCloskey) differs from H.R. 10979 only in tha t deserters would 

receive automatic amnesty, without a requirement of alte rna tive service, if they 

surrendered to the government with in one year from the effective date of the 

legislation.

II.R. 13001 (Robison) would gra nt amne sty for draft evaders and resisters, 

conditioned on altern ate service. The bill would amend Title IS of the United 

States Code to provide that the laws punishing persons who evade or refuse 

registration or induction shall not apply where the offense occurred between 

August 4. 1964 and March 29, 1973, if the offender presents himself to the Government not more than two years after the date, proclaimed by the President, 

on which all Americans missing in action have been accounted for. The offender 

would have to agree to service for two years in the Armed Forces or some al ter native civilian service, beginning at the lowest pay grade used in that service, and 

to continuing at pay levels no greater tha n those approved by a National Amnesty Board, created to adm inister the law. The Board would consist of three 

members appointed by the President with the consent of the Senate. The bill 

also contains provisions concerning i>ersons alre ady convicted and concerning 

Presidential pardons.
206

Fina lly, H. Con. Res. 144 (Hogan) and the identica l II. Con. Res. 385 (Bowen> 

would express th e sense of Congress that no pardon or amnesty should he enacted 

by the Congress or granted by the President with re se ct to members of the 

Armed Forces who have lied to a foreign country to avoid fu rth er military 

service.

CONGR ESSIONAL POWER

There does not seem to be any substantial question about the power of Congress 

to enact amnesty legislation. The United States Supreme Court spoke a uth orita ­

tively on this subject in Bro wn v. Walker, 161 U.S. 591 (1S96). After referring 

to Article II, Section 2 of the United States Constitution which vests in the 

Preside nt the power “to grant reprieves and pardons for offenses aga inst the 

United States,” the Court sa id (a t p. COD :

. thi s power has never been held to tak e from Congress the power to pass 

acts of general amnesty, and is ordinarily exercised only in cases of individuals 

after conviction, . .

The Court went on to say (a t pp. 601-602) :

“Amnesty is defined by the lexicographers to be a n act of th e sovereign power 

granting oblivion, or a general pardon for a past offence, and is rare ly, if ever, 

exercised in favor of single individuals, and is usually exerted in behalf of certain 

classes of persons, who a re subject to tria l, but have not yet been convicted.”

TH E NEED FOR AM NESTY

This Subcommittee knows full well the deep tensions, the chasma that have 

been created by our country ’s participation in the hos tilities in Indochina. 

Term ination of the hostilities engendered within our people during the past 

decade has become an urgent national need. It can best be achieved by the kind 

of universal amnesty th at would constitute a true “forgetti ng” or, in the words 

of the Supreme Court, by “granting oblivion.” Such an act, we believe, is the 

only way we can place our recent bitte r conflict behind us.

Historic precedent often offers guidance to futur e generations and certainly 

President Lincoln’s magnanimity towards Southerners who had engaged in 

rebellion and were technically guilty of treason has relevance here. However, 

we will not review other acts of amnesty in our history, a record which this 

Subcommittee has certainly studied, because we believe th at this par ticula r 

war must be viewed as sui veneris, as standing ap art from all others. The 

resistance to our involvement in Vietnam should be considered in its uniqueness, 

with the u ltim ate focus on the long-range interest of the nation. There has never 

been a war which so divided our people, to which so many objected, and which 

so many resisted. The figures are shocking and instr uc tiv e: 7,400 persons have 

been convicted as dr aft refusers. The Army alone reported 20,000 dese rters at 

larg e in May 1973 and the figure for all the Armed Forces must obviously 

be larger. Estimates for the number of exiles abroad range over 30,000—a figure 

that seems reliable in view of the fac t that the Cana dian Government reports 

tha t, between 1964 and 1973, it adm itted 17,000 American males of draft age 

as lande d immigrants. Finally, the Armed Forces report th at 450,000 persons 

received less than honorable discharges, most of which were imposed on less 

well-educated, poorer, and minority group citizens.

It is imp ortant to emphasize that this body can reach its decision on amnesty 

legislation without making a judgment concerning the rights and wrongs of 

United States policy in the Vietnam conflict. The American Jewish Congress, 

it is true , was among those organizatio ns which, during the war, expressed 

opposition to United States participation. Whethe r we were right in this is a 

question on which Americans still differ strongly. There is little to be gained 

by a continuation of that debate now. The case for amnesty has an entirely 

different basis—the need, wisdom and morality of “oblivion” as a form of healing.

We therefore not only urge this Subcommittee to approve an effective amnesty 

bill but also express the hope th at the Subcommittee and Congress as a whole 

will deal with this pressing ma tter promptly. We must have an end to the continuing alien ation of our exiles, to the continuing criminal tra ils and imprisonments, to the perm anent handicaps of prison records a nd unfavorable discharges 

visited upon a large fractio n of our youth because they acted on what was to 

them a compelling moral necessity. Let us have a speedy end to this agony.
207

THE SCOPE OF AM NE STY

The principal question raised by proposals for broad amnesty is the propriety 

of extending it not only to dr aft evaders but also to dese rters and those who 

counseled and assisted desertion. We fully recognize that desertion has always 

been viewed as a serious crime, principally because it engenders the mental 

picture of men on a battle front endangered by the flight of their comrades. 

But. realistically, th at is not what is involved in the case of those now charged 

with desertion or facin g the prospect of such a charge. We have heard nothing 

to suggest that desertion in the face of the enemy was a significant factor in 

the behavior of the American Armed Forces in Vietnam.

The American Jewish Congress believes th at amnesty should extend to deserters primarily because any measure limited to dr aft evaders or resisters would 

constitute a form of class legislation. Practical experience during the Vietnam 

war demonstrated that desertion was the poor man’s form of resistance. Prior to 

induction, he was less likely to have clearly delineated objections to service. 

His objections were first brought out by his direct experience with the conditions 

of service, at which point they could be effectively expressed only by desertion.

To put it differently, the essential difference between dr af t violators and d eserters was one of timing; that is, when they decided to resist. Some, mostly college 

students, found out before they were called up th at the war was for them wrong 

and that draft resistance was a possible course of action. Many others, however, 

did not realize the impact and meaning of the war until they were in the army. 

Fo r them, the only course was desertion. We believe that no distinction, legal or moral, can be drawn among those who 

refused to serve in Vietnam on the basis of whether they violated the Military 

Selective Service Act or the laws aga inst desertion. If the concept of amnesty 

is valid, as we think i t is, it is valid for both groups.

We support the provisions of H.R. 3100 dealing with correction of less-thanhonorable discharges imposed because of offenses rela ted to opposition to the 

United States participation in the Vietnam war. Plainly, if criminal penalties 

are to be waived, the lesser but very real penalties of less-than-honorable discharges for the same conduct should be ended and the ir effects eliminated.

Section 0 of H.R. 3100 deals w ith the difficult problem of violations of Federal, 

sta te and local penal sta tut es not rela ted to militar y service which occurred in 

the course of expresisons of opposition to the w ar. It would apply to those who 

engaged, for example, in illegal forms of demonstration or destruction of draft 

board records. We supp ort these provisions with the exception noted below. We 

believe that the suggested procedure, under which each case would be considered 

by the Commission, is appropriate and workable.

The bill, however, would permit the Commission to gra nt amnesty even where 

property damage or personal inju ry occurred “if it finds that such conduct was 

justifiable on the basis of a moral or ethical belief deeply held by the individual.” 

This provision is not unreasonable in the case of property damage. But we cannot 

accept a judgment, and do not believe th at the United States Congress should 

make a judgment, that “sub stan tial personal injury to others” can be justified 

on ethical grounds. We therefore suggest omission of the words, “or sub stan tial 

personal inju ry to others,” from page 8, line 24.

ALTERNATIVE SERVICE

Some of the bills before this Subcommittee would condition amnesty, in some 

or all cases, on performance of service in the Armed Forces or on public works. 

It is our considered opinion th at no such condition should be imposed.

It cannot be said that the men who resisted fighting in the Vietnam war did 

so because they wished to return home lat er “with impunity.” Rather, they did 

what they did because they disagreed with the premise of the war. They made 

the ir decisions at gre at pain to themselves and the ir families. A requirement of 

service as a condition for retur n could only be inte rpreted as a form of punishment for a guilty act. If we say th at a man must give his country another period 

<of his life, particularly at minimum wages, we are really saying that he was 

guilty in resisting the war and th at the government was right all along. Th at is 

precisely the kind of judgment th at an amnesty measure should not make.
208

If, as we believe, the purpose of amnesty is to bind up wounds and restore 

national harmony, we must not atta ch a rider which says in essence, “We will 

forgive you if . It would be ironic indeed if we persisted in vindictiveness

against our own men at the same time that we seek to move toward peace with 

the peoples of China and Southeast Asia.

Beyond this philosophical evalu ation lies a pragmatic reality that has nothing 

to do with approval or disapproval of the war. Peace finds our nation still 

deeply divided, embittered and haunted by the spectre of what went before. 

We need all of o ur people home to rebuild. Above all, we do not wan t to initiate 

and maintain an elab orate adm inistrative procedure th at will extend for years 

the divisive debates over tlie treatm ent of war resisters and the merits of their 

resistance. We certainly do not need to prolong the agony over our differences 

on Vietnam through the period during which the ritual of sub stitute service 

would continue.

Rather we should recognize tha t all of American youth were victims of a policy 

over which they had no control. Some were killed, some were exiled, but all 

were victims and none should be punished further. We need them back.

AMNESTY AS A LEGAL ACT

It has been argued that a gra nt of amnesty would encourage disrespect for 

law and also that it would encourage resistance to legitimate military needs 

in the futu re. The latte r point may be answered briefly. Who would be so 

foolish in a fut ure wartime period as to resist a legal requirement of service 

on the chance th at the unique circum stances of the recent conflict would again 

prevail ?

The broader argument that amnesty encourages disrespect for law would, 

if valid, prevent any act of amnesty or pardon. In fact, however, both amnesty 

and pardon are an essential pa rt of our legal system. They are designed to 

provide a degree of flexibility so as to enable the system to deal with unusual 

circum stances t ha t could not be dealt with in the formulation of a law of general 

application. Unacknowledged, arbit rary and selective failure to enforce a law 

might well breed disrespect for the legal system as a whole. Formal adoption 

of an amnesty measure, in accordance with the procedures of that system, 

would not.

CONCLUSION

At the Interreligious Conference on Amnesty in March 1972, the late Dr. 

Abraham Heschel, distinguished rabbi and Professor of Jewish Ethics at the 

Jewish Theological Seminary, reminded us of tlie words in Leviticus: “Thou 

sha lt not bear a grudge against the children of your people.” A grant of amnesty 

to those who found it impossible to comply with our law because of their 

abiding belief that participation in the Vietnam wa r was morally wrong would 

fulfill that admonition.

The American Jewish Congress therefore urges prompt enactment by the 

United States Congress of an amnesty bill, broadly framed along the lines 

suggested above.

Resolution on Amn esty—Adopted by th e Governin g Cou nc il, American

J ew is h Congress, J un e 10, 1973

One of the most grievous wounds inflected on the United States by the Vietnam 

Wa r was the deep divisions it caused among us. Thousands of young Americans 

found that the ir conscience did not permit them to serve in an armed conflict 

which they believed to be wrong. Many of them are living outside the ir country 

today. Others live here under the threat of criminal prosecution.

The nation is giving increased atte ntion to binding up the wounds caused 

in our society by the Vietnam War. While historically Presidents have granted 

amnesty, court decisions and other in terpre tation s seem to indicate that Congress 

also has the right to grant amnesty.

We urge tha t, in accordance with this historical trad ition, amnesty now be 

extended to all those who were compelled by the ir conscience to refuse to pa rticipate in the Vietnam War. This amnesty for acts of conscience should include 

draft refusers, deserters, exiles, those abroad, those who received a less than 

honorable discharge, and those who have disavowed the ir citizenship. Any 

distinction between draft evasion and desertion is unw arra nted and would tend
209

to discriminate aga inst disadvantaged groups in the population. We furth er 

believe that those who have served or are serving prison terms for following 

the ir conscience by refusing to serve in the Vietnam War should receive full 

and complete pardons.

Many well meaning individuals have advanced proposals for amnesty conditioned on some form of alte rna tive service. We believe tha t the adoption of 

any such proposal would necessarily prolong the divisive debate engendered 

by the Vietnam War. The adm inistra tion of a conditioned amnesty system 

would involve delicate distinctions in the treatm ent of those being granted 

amnesty. Inevitably there would be disagreement about the methods of administratio n. the judgm ents imposed an d the results achieved. We therefore consider 

conditional amnesty proposals unacceptable.

We urge tha t there be a true amnesty without demands for any form of a lte rnate or national service—a complete "forgetting” of the past in the interest of 

reconciliation.

Mr. Kastenmeier. I would like to yie ld to the gen tlem an from 

New York, Mr. Smith.

Mr. Smith. T hank you. Mrs. Levine, for a v ery inclusive statem ent.

I have one question I would like to ask you about. On page 2 you 

say, “We believe amn esty should he exte nde d to all who were compelled by their conscience to refuse to pa rti cipa te in the rece nt ho stilities in Indo china.”

It is my fee ling th at most of the young people who are in exile or 

in hidin g or an ything else, were compelled by their conscience to do 

so, bu t I am also pr etty sure there were some who did not do it as a 

matter of conscience but who said I do not want to go and I would 

ra th er live in Canada or Sweden or some place than go. Wo uld your 

statem ent and your beli ef in amn esty include also those people who 

in a sense really did not recognize their own duties to th eir Na tion?

Ms. Levine. Yes, it would. I do not know th at I can agree with 

your initial prem ise that the re were people who chose to go to C anada 

or Swed en, hut even assu min g that, ra th er t han go throug h the whole 

hassle of going to each one of their reasons and draw ing them befo re 

boards of inquiry , which could go on foreve r, we wou ld tak e th at 

chance, yes, and say all young men who went overseas or went into 

hiding fo r whatever the reasons.

Mr. Smith. So it does not dep end on th eir conscience, wh ate ver 

the reason they went.

Ms. L evine. We are going to assume th at in the very l arg e majority 

of cases it was fo r conscience.

Mr. Smi th . Th an k you very much.

Mr. Kastenmeier. The gen tlem an from Massac husetts, M r. Dr inan.

Mr. Drin an. I wan t to than k the distin guish ed lad y fo r th at eloque nt testim ony and ask one or two questions.

You subscribe to this with one exception, hu t I am wo ndering 

wh eth er you are entirely satisfied with the rea lly opera tive section, 

section 6. It states th at the Commission may give amnesty if the 

Comm ission finds tha t such violation was in substa ntial pa rt m otivat ed 

by the individu al’s opposition : (2 ). or pro test ag ain st the involvement of the Un ite d State s in Ind och ina. You have heard the testimony of the AC LU , and we go back to the whole que stion o f a tri bu na l 

sitti ng in jud gm ent. Do you have any be tte r appro ach to th at?

Ms. Levine. I know it is difficult. I was just reread ing it myself as 

I sat there. I do not have lietter language myself. I am not a law yer. 

I would imagine the re are people withi n my org aniza tio n who might 

be able to add ress themselves to th at. It is difficult, and yet does not 

this board ap ply to alm ost everybody? I th in k there wou ld be few 

exc eptions; is th at not correct?
210

Mr. Drinan. It does. Knowing the legal expertise of your organization, I would solicit further comments from them precisely about 

these very difficult things and also by judicial review by the person 

who has been turned down. It seems to me we need a good deal more 

work and also as to the reasons for amnesty, sections 2 and 3 of th is 

bill, 3 and 4, I really think we need a good deal more work.

So your statement is eloquent and I just hope tha t people from 

your organization can give us further help on those sections.

Ms. Levine. I know they would be glad to.

Mr. Kastenmeier. Representative Mezvinsky.

Air. Mezvinsky. I am sorry I could not be here for your statement, 

but I had an opportunity to read it and I want to say your comments 

made an impression on me. Thank you.

Ms. Levine. You all made an impression upon me, too.

Mr. Kastenmeier. Thank you very much.

Our last witness this morning, representing SANE, is the Rev. John 

Wells, retired major in the U.S. Air Force, attorney, and former 

special consultant to the U.S. Department of Defense.

Welcome, Air. Wells. AVe have met and talked before. You are 

most welcome here. I believe you have a short statement plus a policy 

statement from SANE.

TESTIMONY OF REV. JOHN WELLS, MAJOR, U.S. AIR FORCE (RE ­

TIR ED), ATTORNEY, FORMER SPECIAL CONSULTANT, U.S. DEPARTMENT OF DEFENSE 1964-69, SANE

Air. Wells. Tha t is correct.

I see friends from Massachusetts. I will not speak with my Alassachusetts accent, but put on my southern accent.

It is a joy to be here. I want to ask if the committee will accept the 

SANE policy on amnesty tha t was adopted by the National Board 

of SANE in June 1972.

There are two partic ular provisions tha t I would like to talk about. 

Aly accent, as you know, is southern. Aly great grandfath er lost his leg 

in Gettysburg. He was able to get home on a stump whittled out by 

him in Savannah, Ga., and tha t is why I am here this morning.

I happen at the moment to have an office across the street—on St. 

Asaph Street, Alexandria, Va.—from the home of Robert E. Lee. 

I think he was a great man in many, many ways. Somehow at this 

moment when I think of what was going on in that Civil War that tore 

us apart, that one on the other side of my family killed my grandfather 

on my father’s side, in the B attle of A tla nta: I think of the wonderful 

experiences I have had in Alassachusetts—Fathe r Drina n and many 

others there—I cannot help but think we could have continued in those 

days the kind of thing tha t could have torn this country apart and 

kept it apart forever. When T think of Robert E. Lee. after the 

amnesty provided by Andrew Johnson, he said, “I believe it to be the 

duty of every man to unite in the restoration of the country and the 

reestablishment of peace and harmony. Those considerations governed 

me in the counsels I gave others, and induced me on the 13tli of June 

to make application to be included in the terms of the amnesty 

proclamation * *
211

Well, President Johnson—this is Andrew Johnson, of course—had 

set up an amnesty provision, but it was not total and not complete. 

There were 16,000 people that applied for pardons tha t he wanted 

to rule on and look at and talk about, and he really wanted to see 

personally, so that he could rule and make a decision. This became 

such a difficult problem, such a difficult problem.

What could you say to this man who said he did not do it because 

he wanted to, he was made to do it; or to the commander of the Ala ­

bama who said he was just serving on the ship, was caught in a battle, 

and suddenly was on the wrong side. To have to go through the process 

of a commission, without safeguards of proper review, seems to me to 

not be needed when there are really so few that really are involved in 

the total country.

I do not feel it will be decisive at all. I have talked to them all over 

this country. I feel that the country now more than anything else in 

this world wants a healing, wants the kind of thing that finally happened on Christmas Day in 1868, when Andrew Johnson over the 

objection of the Congress, granted amnesty to everyone. I wondered 

about the amnesty situation, whether or not Congress had to do it or 

whether the President had to do it.

The second point is, I not only think that the Congress has the 

authority to do this, I think the Congress now has the obligation, the 

moral obligation, to stand up and say we admit tha t this war divided 

this country and now we can put it back together.

In 186*2, the Congress passed an amnesty bill. Of course, this was 

during time of war, hoping the people in the South would quit and 

the war would end. It was on the basis of this bill tha t Lincoln first 

gave his amnesty bill in 1863. There is no question in my mind, and I 

am a lawyer as well as a minister as most of you know, the Supreme 

Court in 1877 said there is not tha t much difference between amnesty 

and pardon. The Constitution grants the authority to grant amnesty. 

The President has the authority to pardon individually, and therefore, 

he has the power to pardon altogether. The Congress of the United 

States has the authority to make laws tha t make objectors or make 

crimes or make acts criminal. Tha t is the authority within tha t same 

authority to make them not criminal. The Congress has the ability and 

authority, and if it now has the will, then it can stand up and say we 

can admit tha t we as a Congress never really authorized the war in 

Vietnam. We as a Congress have never really specifically state tha t 

this was a war tha t we would direct, and tha t we now as a Congress 

are going to say that those who felt tha t the Congress was divided from 

the very beginning of the Tonkin Gulf resolution, can say, we can heal 

tha t division and make this a time of reconciliation and hope, a time 

of love th at can come back into this country and heal the divisiveness 

and the wounds tha t came so close to tearing us apart.

With this I urge, and the National Board of SANE, and as you have 

heard from the groups and churches here before you, urge a general 

and complete amnesty. I would urge personally tha t this not be done 

by a commission but be done by law, and rath er than to have the 

situation where you placed President Johnson in having to review 

each case, th at it be done and be done completely by the Congress. In 

my opinion, as a lawyer, I think you have tha t auth ority; and as
212

someone who is a great admirer of so many of you. I urge you to 

exercise your legislative power. Thank you.

Mr. Kastexmeier. Thank you for that persuasive statement.

Incidentally, without objection, the policy statement of SANE will 

be received for the record.

(The policy statement of SANE follows:]

SA XE P olicy ox Amne st y, Adopted by th e National Board of SAN E, 

J un e 24, 1972

Th e ta sk be fore the co un try is no t me rely to en d th e w ar in Sou th ea st Asia, 

be ing wa ged at th is tim e w ith unp ar al le le d fero city , bu t also to he al th e wo unds 

in ou r own socie ty. T hi s ta sk is si m ilar to the one face d by Pre si den ts Lincoln 

an d And rew John so n. Bo th of th e Civil W ar P re si den ts issu ed pr oc la m at io ns 

of am ne sty fo r thos e who ha d enga ge d in rebe lli on an d were th er ef or e tech ­

ni ca lly gu ilt y of trea so n. No Con fe de ra te so ld ier w as re qu ired to at on e fo r hi s 

acts by do ing special ser vic e. Thi s disp lay of co nc ili ation in th e fac e of civ il w ar 

w as an ac t of mor al st re ngth an d pra ct ic al wisdo m.

Th e tr adit io n of am ne sty in th e United Sta te s goes back to th e very be ginni ng s of th e Re public. Pre si de nt W as hi ng ton proc laim ed am ne sty fo r p arti cip ants in the Whis key Reb ellio n: Jo hn Ad am s gra nte d am ne sty to thos e who 

un de rtoo k th e so- called Fri es Re be llion of 1799, an d Pre si den ts Jefferso n. M ad ison an d Ja ck so n gr an te d am ne sty to arm y de se rt er s a to ta l of five tim es. Th e 

th re e pr oc la m at io ns by Pre si de nt Madiso n oc cu rred duri ng th e W ar of 1S12, 

a n d requ ired only th a t de se rt er s re tu rn to th eir unit s w ithin a st ate d perio d.

Th ose who ha ve refu se d to part ic ip ate in th e Ame ric an w ar in Sou th ea st 

As ia ha ve bee n guide d, fo r th e mo st p art , by conscie nce an d principle. Th ey 

ha ve ac ted on mor al grou nd s, ba sed on ju dg m en ts now sh ar ed by man y of th eir 

fello w Ame ric ans. Th ey shou ld not be pe na liz ed fo r ha vi ng ac te d on the ba sis 

o f co nv ict ions reac he d la te r by a m aj or ity of oth er citiz en s.

E xi st in g laws an d ju di ci al ru ling s ha ve been in ad eq ua te to deal w ith th e 

qu es tion s ra ised by re si st an ce to a w ar co nsidered unju st an d im moral by th e 

re si st er s. Fe de ra l law ha s re qu ired objec tio n to all war as a co nd ition fo r 

gra n ti n g th e sta tu s of co ns cien tio us ob jec tor. Mo reo ver, un til 1970 th e Su prem e 

C ou rt re qu ired ob jec tio n to all w ar to be grou nd ed in relig io us belie fs. The re ­

fo re . in or de r to qu alify as a C.O. a yo un g ma n ha d to prov e he wa s a relig ious 

and co mplete pa cifist. Relatively few of th e w ar re si st ors fell into th is ca te "o ry .

As of 1970, it ha s bee n leg al to ob ject to w ar on mor al as well as relig ious 

gr ou nd s. Th e Su prem e Cou rt decis ion th us in cr ea se d the po te nt ia l nu mbe r of 

C.O .'s. bu t only aft er th e American m ilitar y invo lvem en t in Sou th ea st As ia ha d 

st art ed to decline. Th ose with mor al ob jec tio ns to w ar who we re denie d C.O. 

sta tu s in th e pas t an d who re sisted service in Sout he as t Asia ha d only a st ark 

choic e be tw en ja il or exile. Th ey ha ve a cl ea r cla im on th e nat io n fo r am ne sty.

It is said by som e th at am ne sty wo uld be unfa ir to th e fa m ili es of American s 

wh o died in Sou th ea st Asia. We believ e th a t th es e tr ag ic losses ca nn ot sa nc tify 

an u n ju st war. Fai rn es s to th e de ad requ ires no t a sp ir it of vind ictiv en ess, bu t 

a sp ir it of reco nc ili ation wh ich can he lp end th e divi sion s ca us ed by th e mo st 

se ar in g na tion al ex pe rie nc e of thi s ce nt ur y.

SA NE th er ef or e ur ge s the Pre si de nt an d th e Co ng res s im med iately to de clar e 

a un iv er sa l an d un co nd iti on al am ne sty fo r thos e wh o refu se d to par ti cip ate in 

th e American w ar in So uthe as t As ia, begin ning in 19(51 an d co ve rin g th e fol low ­

in g in sta n ces:

1. All pe rson s now ou tside th e T'.S. who we re de se rt er s or d ra ft re fu se rs fo r 

re as ons of con sci ence shou ld be all ow ed to re tu rn w ith ou t jeop ar dy an d with 

fu ll ri ghts of c it iz ensh ip :

2. All pe rson s cu rr en tly he ’d in civi lia n or m ilitar y pr ison s fo r reas on s of conscienc e shou ld be prom ptly re leas ed :

3. All pe nd ing am i po te nt ia l pr os ec ut io ns of thos e wh o de se rted or re si sted th e 

d ra ft fo r reas on s of conscie nce s ho uld be d ropp ed :

4. All thos e who ha ve comp let ed priso n te rm s or ot he rw ise lo st th eir civ il 

ri g h ts du e to th eir op po sit ion to w ar shou ld ha ve such ri ghts re sto re d : an d

5. Amne sty shou ld be un co nd iti on al, w ith ou t pe na lty or re qu irem en t of com ­

pensa to ry ser vic e.
213

Mr. Kastexmeier. I yield to the gentleman from Massachusetts, 

Mr. Drinan.

Mr. Diuxax. Thank you, Mr. Chairman.

For the record, we should note Reverend Wells came among us 

damned yankees for many years and from his pulpit revolutionized 

the people of Massachusetts and he almost singlehandedly had enacted 

by tne State legislature a resolution, a law saying the people of Massachusetts would not be required to enter the military service, for an 

undeclared war. It was the judgment of the U.S. Supreme Court not 

to validate that completely, but Reverend Wells made history there, 

and I am very happy to see he is just as eloquent now as he was then.

I hope, Reverend Wells, you will spell out your testimony on the 

board or nonboard, and try to help us as another lawyer as to how 

we can specify certain categories of immunity or amnesty.

I want to thank you for your eloquent testimony and I yield back, 

to the chairman.

Mr. Kastexmeier. I yield to the gentleman from New 1 ork, Mr. 

Smith.

Mr. S mith. Thank you. Reverend Wells. I thank you for your eloquent statement.

For the record, would you tell us what the acronym. SAX E, is.

Mr. Wells. It is not an acronym. It started out as the Committee 

for Sane Nuclear Policy. It has been in existence for quite some time. 

It is one of the oldest established of what we might label now “peace 

movements” that set about to cause the I’nited States to look at our 

nuclear policy, prior to the time of the Vietnamese war and prior to 

the time we were involved in Southeast Asia. Of course, as we went 

along SAXE said maybe that is not too sane either, so let us have a 

sane policy over there in Vietnam. That is what it stands for. It has 

been shortened to SAXE.

Mr. Smith. Was it originally a group of scientists ?

Mr. Weli .s. Yes; primarily going along in support of the nuclear 

test ban treaty.

Mr. Smith. Originally, an organization of scientists. I believe, was 

it not ?

Mr. Wells. It had a lot of scientists in it who were very much concerned about tin* I ’.S. nuclear policy.

Mr. Smith. Rut this is no longer one of the qualifying requirements 

of membership, I take it ?

Mr-. Wells. Xo: let me state we are perfectly willing, glad, and willing to receive anyone who supports the policies of SAXE, and willing 

to contribute just a little bit. We would like for them to come along, 

and we invite you to join with us. We think it would be wonderful if 

you could.

Mi-. Smith. Reverend Wells, would SAXE—T did not have a chance 

to read the policy statement except as you spoke about it in general 

terms. Would your organization lie in favor of or against alternative 

service by those to whom amnesty might be granted ?

Mr. Wells. I personally, and I think I speak for SAXE, would be 

opposed to alternative service in the sense that once again, as it has 

been stated very eloquently here already, that to say you must sen e is 

really a justification for a war that many people, including many Mem-
214

bers of Congress, thought was never justified to begin with. Therefore, I would be very much opposed to alternative service.

Let me put it this way. I worked with Brad Morse for quite a while, 

the former Congressman from the 5th District of Massachusetts here 

on the Hill. ITe said one time, ‘‘John, let me tell you something, no bill 

is a good bill that will not pass.”

1 was over at Camp 30 last night, which is a prison in Virginia, and 

if it were possible to get one of the guys there I was working with to go 

to a drug rehabilitation program, I would rath er get him to the drug 

rehabilitation program because they are better than the jails.

I am unalterably opposed to what is happening in our jails. If 

these kids out of conscience chose not to fight in a war, to put them 

in a hospital somewhere, I would say I would prefer to see them 

there if tha t is the only way, but I am unalterably opposed to the 

whole concept of validifying the war in Vietnam tha t I personally 

think was wrong to begin with, and I think many people in Congress 

had great qualms about it themselves. I do not feel this, I know they 

did. Just ordinary people, and particularly the less sophisticated, 

those are the ones who did not have the d raft counseling, who did not 

have the ability to stay in school a long time, and so they left the 

military and split so they will get a bad conduct discharge. I would 

like to see them all get the ir discharges back and get at the very least 

a general discharge. There is the honorable discharge, the general discharge, the bad conduct discharge, a dishonorable discharge, and the 

one in the middle. Anyone for Air Force Regulation 1917?

I was in the Judge Advocate’s office; so I was a regular officer. I 

served 8 years. The gentleman who said those who served 4 years 

would be upset.

I am not for the alternative service, sir.

Mr. Smith. But you say you would take it if you had to, to get 

some kind of a bill ?

Mr. Wells. Once again, I am only listening to the wisdom of a 

friend of mine, lion. Bradford Morse, and he did teach me th at a 

bill that will not pass is no good. But I would be opposed to it up to 

the very last moment, only because I know there are a lot of kids in 

jails, and I spend a lot of time visiting jails, and they do not show me 

very much.

Mr. Smith. Thank you very much.

Mr. Kastenmeier. The gentleman from Iowa, Mr. Mezvinsky.

Mr. Mezvinsky. I want to thank you for your moving statement. 

You mention in it tha t this country wants to have a healing and it 

needs it, and when we talk about divisiveness today there is the hope 

more than ever tha t we can come together and have the healing 

process.

Based on that, then, why when we see the polls toward unconditional amnesty, how come they are at least to date so much against it?

Mr. Wells. One reason, they do not understand it. Last night I 

was talking to a guard over at prison and I asked him this question. 

I knew I would be here today and I asked him. I said, “Are you in 

favor of this? ” And he said, “No.” Rather than argue with him I 

sat down and told him about the Whiskey Rebellion or the War of 

1812 when Madison said, “Hey, you guys come on back and join your

5
215

tro ops and I will forget it,” or Lin coln or Joh nso n. You see, he did 

not know this.

Th is is th e difficult th in g we do no t g et across. Y ou in Congres s need 

a way to get y our m essage across to th e people. It is ha rd to g et across 

to the people t hat th is country has been bu ilt on the f act o f reco nciliation. It has been bu ilt on the fact we do no t hold grudge s. It has been 

bu ilt upo n the fact th at we can forgiv e and also th at we can have 

diffe rences and un derst and and love each other. Tha t is the str en gth 

of t his country. Wh en you go i n a nd say you are going to let these d ra ft 

dod gers get o ut of th is and so on, there is an a uto ma tic rea ctio n. I know 

you understand, I know the people will un de rst an d when you lead 

the m to wh at is happening . We could rea lly get into a real hod ge 

podg e, bu t I believe t his is th e ca ll t o C ongress, to the whole legisla tive 

process, righ t now. I t is incum ben t upo n the Congres s to lead. Tha t is 

my ex pla natio n fo r it.

When I first introd uced th at bill th at Fat her Drina n was talking 

abo ut, everybo dy told me I was a big fool, it did no t have a chance 

of p assing, b ut we wen t o ut and to ld people a nd it passed.

Mr. Mezvixsky. Tha nk you. I certa inly appreciat e your comments.

Tha nk you.

Mr. Kastenmeier. Th an k you, Rever end Wells, for yo ur contr ibutio n this morning.

Mr. Wells. T ha nk y ou for the op po rtu nity to be here.

Mr. Kastenmeier. Th is concludes the mo rni ng session of our 

hearings.

I would like t o announce th at we will tr y to reconvene at 1 :45 p.m. 

In the event 1 am no t present, I have recpiested and autho riz ed the 

gen tlem an fro m M assa chusetts, Mr. D rin an , to reconvene the afte rno on 

he aring a t th at time. O ur first witness will be S enate r E rn es t Grue nin g.

Until th at time, the subcommittee sta nd s in recess.

[Wher eup on, at 1 :05 o’clock p.m., the he aring was recessed, to reconvene at 1 :45 p.m ., th is same da y.]

AFTERNOON SESSION

Mr. Drixa n (p resid ing). Th e subcommittee will please come to 

or de r fo r the after noon session on the question of amn esty.

I am very pleased and hon ored by the presence of our first witn ess 

th is aftern oon, Se nator Ern es t Gruen ing . li e is one of the fo remost statesm en of our time. li e began his career, as do so many 

dis tin guish ed people, in Massachusetts. He grad ua ted fro m the H arva rd Medica l School and was a cru sading journa lis t in Boston.

He has given an enormous numb er of y ear s to Gover nment service. 

Dur in g the Fir st World W ar Se na tor Gr uenin g helped org anize the 

W ar Tr ad e Bo ard Bu rea u of Ex po rts . He was adviser to th e Seven th 

Pa n Am erican Conference at U rugu ay fo r Presiden t Rooseve lt where 

he took par t in imple me nting the Good Neigh bor Policy he ha d long 

foug ht for.

In 1934 Presiden t Roosevelt a ppoin ted him Di rec tor of th e Division 

of Te rritor ies , and he served as the Gover nor of Alask a from 1939 to 

1956. In 1958, gr ateful Alask ans sen t Se nator Gr ue nin g to the U.S . 

Senat e to rep res ent them for a lon g nu mb er of years.
21G

Se na tor Gruen ing , alo ng with one oth er Senator, pro tested origina lly ag ain st the Tonkin Gul f Res olution, and has always protested 

this c ou ntr y’s involvemen t in the V ietn am war.

I think it is fa ir to say—an d I recommend to all of you—this is a 

commercial for your book. S enato r—the S en ator’s most recent volume, 

his autob iog rap hy, “M any Ba ttles.’’ 1 think it is fa ir to say, as the 

Ala ska L egislatu re has said, when passing by unanimous vote a resolution commending his recent nom ination for the 1974 Nobel Peace Pr ize, 

th at Se nator Gruenin g is a man for all seasons and a man for all 

Americans.

Se nator G rue nin g, we welcome you, and we are hon ored to have you 

speak to this committee.

TESTIMONY OF FORMER U.S. SENATOR ERNEST GRUENING

Mr. Gruen ing. Mr. Ch air ma n, in my wr itten statem ent, which I 

wa nt to summarize, 1 outline d my view of our his tor y of ou r involve ­

ment in South eas t Asia, which was a con tinu al his tor y of deception, 

mendacity and inexcusable aggression.

I pointed out th at this war was entirely different from previo us 

wars which we engaged in, such as Worl d W ar 1 or Worl d W ar II , 

both of which I sup ported. In fact. I was in u nif orm in Worl d W ar 1. 

Bu t this was was entirely diff eren t. We had not been attack ed, and 

the re were no vital intere sts of the Un ited State s as I saw it. th at were 

in jeopar dy. We merely barge d into a civil war. and we did it by ela borate mendacity , p artic ularly th roug h the Tonkin Gu lf incident.

I think it is occasio nally im po rta nt to recall that inc ide nt by po inting out th at on the nig ht of August 4. 1964, Lyndon Johnson went on 

nation wid e television and tol d the American people th at on Au gust 2, 

an Am erican des troyer on a rou tine pa tro l in int ern ational waters 

had been wantonly and unpro vok edly attack ed by No rth Vietnamese 

P.T. boats, and he felt that it was necessary to cou nte r that. He said 

he ord ere d a second des troyer to accompany the first, and the att ack 

was repeated the second nig ht. He felt that this req uired a response: 

and , the ref ore , lie ord ered a retalia tory attack by airpla nes from the 

fleet on the bases from which these boats had emerged, and he had a 

resolution dr afted which he would present to the Congres s which 

would give him the power to preven t such future acts of aggression.

The story was comp letely false. The destroyer Ma dd ox was not on a rou tine patro l in intern ational wate rs. She had penetra ted the 

coastal waters of South Vietnam. She was a spy ship. She had been 

equ ipped the week befo re with elaborate elec tron ic devices, and actuall y she was doing t his at a time, when South Vietnam ese vessels s up ­

plied by the United State s with crews tra ined by the Un ited Sta tes 

were actua lly attack ing North Vietnam ese ports. So th at while we 

were alleging aggression, we were actual ly practicin g it.

The Preside nt had gathe red a gro up of Senator s and Congressmen in the White House early th at aftern oon several hours b efore he 

made this nationwid e address, to give them the same fals e version of 

wh at ha d happened. But he did not tell them tha t several hours earl ier , 

a tele gra m had been received from the ca ptain com manding the M ad ­ dox^ Ca ptain He rrick, who in the interv al between the 2d and the 4th 

ha d been promoted to be commodore. An d this telegram made very 

cle ar th at the atta ck was very do ubtful.
217

Th is was the tele gram. And I think it is i mp ortan t to get into eve ry 

record of the war.

Review of action makes many recorded contacts and torpedoes fired appear 

doubtful. Freak weather effects and overeager sonar men may have accounted 

for many reports. No visual sightings by Maddox. Suggest complete evaluation 

before any furth er action.

Th at telegr am was sup pressed . The Senator s and Re pre sen tatives were not allow ed to see it. Had t hey know n of thi s telegr am , of 

course, they would not have voted for the Tonkin (i ulf resolutio n. 

They would have sa id, the one man who knows what has h app ene d and 

what has not hap pen ed says, halt it. It is doubtf ul whether the re were 

any such attack s. But that was not only concealed from the Senat ors 

and Representatives meetin g at the White House on August 4, it was 

concealed from the entire S enate and the entire House du ring the next 

3 days while we were deb atin g. Con sequently, the House voted for the 

resolutio n una nim ously, believing Presi dent John so n’s version, and 

the Sen ate voted for it 88 to *2, with the 10 missin g Senators recorded 

in fav or of it.

We were lied into this war. And these kids may not have know n 

all these details , but they knew it was not a war o f defense, the y knew 

it was not a w ar which was justified , a nd so they refused to go.

An d so I would outline briefly wha t I feel abo ut those who resisted 

the dr af t, and those when they went down there fel t they could no 

longer stom ach it and left . 1 will read this.

The young men who refused to be dr af ted may not hav e known 

all the details of the menda city and the delibera te deception th at 

plunged our country into this war. But they felt deeply th at this tvas 

not a war of defense of our country, th at we h ad not been attacked as 

we had been by th e Japanese at Pearl Harbo r, th at n o vital intere sts of 

the Un ite d State s were involved, but th at we had b arg ed in unm asked 

into a civil war th at was none of ou r business. 1 know how the y felt , 

because in talking to students at variou s colleges, as the dr af t moved 

closer to them they would assure me with deep sincer ity th at if thi s 

were a w ar of defense of our co untry, th ey would go willing ly. But not 

into t his war, in which, while co nstan tly al leg ing th at we were f igh ting 

agg ression, we we re in fac t t he aggre ssion. So the y refu sed to go.

And fa r from bein g penalize d, the y should be honored fo r t he ir wisdom and th ei r tru e patrioti sm . The y are th e un sung heroes of th is war.

But for those who swallowed any res erv ations the y may have had, 

and did not resist the dra ft , and went, it is cle ar th at when the y got 

into Sou the ast Asia and saw the masacre of inno cent non-com batants, 

the burning of women a nd childre n with nap alm , the sa turatio n bombing which destro yed homes, h osp itals a nd white fam ilies, m aking homeless refu gee s o f those who were not killed , tu rned the lan d in a de foliated and cra tered wasteland, these non-r esi sta nt draftees could no 

lon ger stom ach these atrocities, and would no longer p artic ipate in this 

massive b utc her y, a nd dese rted. T hey do h onor to America, sham elessly 

misled and betrayed by its leader ship. The ir desertion was infinitely 

prefe rab le to th eir s taving on. The y were betra yed by t he ir leade rship.

My conviction in this matter I have formed when I view this wa r 

and the U.S. participa tio n in it as w holly different from o ur en try in to 

World W ars I and II , which I the n con sider and now con sider fully 

just ified, were crys tallized by a sc enario of h orrors at the t hir d Anier31 -6 38 — 74------ 16
218

ican wa r crimes hearings in Cop enhagen in 1972. Am ong them was a 

24-year-old school teache r. Her r ig ht arm was gone. Fr ag men ts of the 

bomb th at hit he r school had to rn it off. The same bomb killed six o f the 

child ren ou tri gh t and cri ppled 10 others fo r life . They are typ ica l of 

the U.S . legacy in So uth east Asia—armless, legless children , or ch ildren paralyzed by fra gm ents str iking th ei r br ain or pie rcing th ei r 

spina l cord. Some of them can not even use crutch es, bu t must crawl 

abo ut like four- foo ted animals on hand s and knees.

The men who refuse d to pa rti cipa te any lon ger in thes e atrocities, 

af te r agree ing to serve, should be gran ted imme dia te amn esty, and 

with it a decla ration of appre cia tio n fo r th ei r decency and hu man iT

taria nism . H ow sha me ful that they sh ould be headed fo r im prison me nt 

with the approv al of an Ad minist ratio n th at has harbo red more convicted criminals th an ever before constitu tional a Presiden t's en tour ­

age. I wa nt to rep eat that.

Am nesty is o pposed by an A dm inistratio n th at h arb ors more c rim inals than ever before disgraced an A dm inistrat ion. I t hi nk t hat is an 

understate me nt. I ha ve no t resea rche d it, b ut I th in k if you will list all 

the criminals th at took par t in previous Ad ministratio n, the Grant 

Ad minist ratio n and the Har di ng Ad ministratio n, th eir numb er will 

not total u p the nu mb er in t his A dm inistrat ion. An d this is the Ad minist ratio n t hat does n ot wa nt to giv e the se peop le am nesty. Most of these 

criminals in the Ad ministratio n have been asso ciated with Presiden t 

Nixon for years, and have h ad the op op rtu nity to pro fit by his exa mple 

and guidance.

IIo w shameful when men in hig h places who have com mitted felonies in th eir resp onsible posts escape with a sla p on the wrist, a 

fine, instea d of the full imprisonment term s they deserve.

Th e U.S . must un fortu na tely foreve r bear the shame and stigm a 

of a wholly unjustified wa r of agg resion into which our lea der ship 

tricked us, and would hav e con tinued the sla ug hter bu t for Con gressional action which stopped the wa r last Au gu st 15th and forbade 

fu rther use of ou r m ilitary in S outhe ast Asia.

But we can make pa rtia l amends by fre ein g those who knew righ t 

fro m wrong and refuse d to continu e to pa rticip ate in a m onstrous and 

crim ina l policy.

So I am hop eful and str ongly u rge th at t he Co ngress prom ptl y pass 

leg islation gr an tin g unc ondition al amnesty to both the wa r resisto rs 

and th e deserters.

Le t them follow Ab rah am Linco ln's example when he pardo ned 

both des erte rs for the Union and the Confe der ates who had been captured. T ha nk you.

Mr. Drin an. Th an k you very much , Se na tor Gruenin g, fo r th at 

most eloquent statem ent. Yo ur entire sta tem ent will be placed in the 

record at t his point.

[Mr. G ruen ing ’s sta tem ent f ollows :]

Statement of Senator Ernest Gruening

In order to justify my support for immediate and unconditional amnesty for 

those who resisted the draft in the United States armed forces for the undeclared 

war in Indochina, and for those who, having accepted enlistment, later deserted, 

I think it essential to look into the history of United States motivation for its 

military participation and its proclaimed justification for it. It is in tha t history 

that may be found the justification for amnesty.
219

In the eighteenth and nineteenth centuries the gr eat powers of Europe, France, 

'Germany, the Netherlands, Spain, Portugal, Great Britain , moved the ir armed 

forces into the less developed are as of the world, Africa, Asia, South and Centra l America, conquered their in habitants and carved out colonies for themselves. 

But after centuries, and sometimes after only decades of this colonial rule, the 

colonial inhabitants of these old-world colonies sought independence and freedom. The American Revolution in the last quarter of the eighteenth century 

was one of the first of these revolutions although it differed from the other revolts aga inst old world domination in that Britain had never conquered that 

pa rt of America which became the United States.

In the late nineteenth century tlie French moved militarily into Southeast 

Asia and by force took over the formerly independent natio ns of Vietnam. Laos 

and Cambodia, natio ns with an ancient culture and civilization, and united them 

in one colony which they called Indochina.

Revolt aga inst old world domination and colonialism gathered momentum in 

the twen tieth century, and in the middle nineteen-forties—a litt le more than a 

qu arter of a century ago—the colonial inhabitants of Indochina raised the standard of revolution aga inst their old world master, France. Their motivation was 

precisely that of our colonial forb ears who raised tlie standard of revolution 

again st Britain . Bu t their cause was even clea rer tha n th at of the thirteen colonies in th at Britain had never conquered America and had not taken over the 

thirteen colonies by force as had France in Indochina. Our forefathers just 

wanted independence and tlie determination of their own destiny. So likewise did 

the Indochinese.

However, Fran ce wanted to hang on to its colony. Th eir generals, Nav arre and 

La ttre de Tassigny, felt they could not suppress tlie revolution and the French 

government asked tlie United States to supply milita ry aid. One migh t have 

assumed t ha t in view of our past history, of our freedom resulting from severance 

of old world domination, Fra nce ’s request would have been rejected outright. 

However, President Eisenhower considered it. lie was urged by his Vice-President, Richard Nixon, to accede to tlie French requ est and send our troops into 

th at war, and the French request was also supported by some of our militar y 

leaders, including the late Admiral Arthu r Radford, Chairman of the Joi nt 

Chiefs of Staff, but opposed by others, notably General Matthew Ridgway, Army 

Chief of Staff, who shared General Douglas Mac Arthur’s publicly expressed 

view th at “anyone who counsels our getting into a ground war on the continent 

of Asia ought to have his head examined.”

After considering the French request, Preside nt Eisenhower found he could 

not get the approval of Congress—whose constitu tional role in war-making he

respected—nor could Eisenhower get the suppo rt of our late World War II ally, 

Great Britain—Winston Churchill was opposed to any joint military venture— 

so Preside nt Eisenhower refused to send troops into combat, but he did give tlie 

French sub stantial financial aid—one billion, two hundred million dollars, four 

times the amount the French put in—before the French defeat at Dien Bien 

Pliu—and a military mission of GOO men designed to tra in native troops to fight 

for the French. These American military were the e ntering edge of our involvement in the war. When the Indochina revo lutionaries found our men fighting 

with and for the ir colonial mas ters they viewed them as enemies, and they became our first casualties. When American blood is split there will always be an 

urge to retalia te.

Th at urge was behind President K ennedy’s sending several hundred helicopter 

pilots to Vietnam to help put down the Revolution. This was not frankly admitted. They were labelled advisers, because the Geneva Accords forbade its 

supporters to send troops into the Indochina war.

The Geneva Accords arose from a meeting of nine nations after the French 

defeat. They provided that out of the former French colony, three previously 

independent nations, Vietnam, Laos and Cambodia, would recover the ir independence as sovereign nations.

Campaigning for election after President Kennedy’s assa ssination, Vice P res ident Lyndon Johnson promised the American people he would never send American boys to Southeast Asia to do the fighting th at Asian boys should do for 

themselves. Then came the Tonkin Gulf incident.

On the night of August 4, 1964, Preside nt Johnson went on nation-wide television and told tlie American people th at two nights previously, on August second, 

an American destroyer, the Maddox, on a routine patrol in inte rna tional waters,
220

ha d bee n wan tonly at ta ck ed by Nor th Vi etn am ese P.T. boat s; th a t be b ad o rd ered 

a second de stro ye r to acco mpa ny th e h is t, an d th at bo th des tr oyer s had ag ai n 

been de libe ra te ly an d wan tonly at ta ck ed on the ni gh t of Aug us t fo u rt h ; th at he 

fe lt such un prov ok ed att acks re qui re d a res po nse, an d so lie ha d orde re d plan es 

fro m ou r air cra ft carr ie rs t o bo mba rd th e po rts fro m wh ich th e N or th Vi etn am ese 

vessels ha d come, an d th at he ha d a re so lutio n dra ft ed wh ich he wo uld pr es en t toCo ng res s th at wo uld en ab le him to pr ev en t such ac ts of ag gr es sion in th e fu tu re .

Jo hn so n’s st or y wa s false. Th e Maddox was not on a ro utine pat ro l in in te rna tion al w aters. She ha d pen et ra te d the co as ta l w ate rs of Nor th Vietn am . She 

wa s a spy shi p, an d the week be fore ha d been fit ted ou t with el ab ora te e lectronic 

eq uipm en t. Moreo ver, she was pe rfor m in g a t th e ve ry tim e wh en So uth Viet ­

na mese vessels, supp lie d by th e United St at es , with cr ew s tr ain ed by th e Un ited 

State s, were att ac kin g N or th Viet na mese port s; so th at in st ea d of th e Un ite d 

Sta te s being th e victim of ag gres sion , it wa s ac tu ally th e ag gr es so r.

Th e re so lutio n which th e Pre si den t ha d ha d dra ft ed ga ve him th e auth ori ty 

to use th e armed forces of th e United Sta te s an yw he re he sa w fit in Sou th ea st 

Asia, an d he laid th e re so lutio n be fore a grou p of Sen at e an d Ho use le ad er s he 

ha d as ke d to mee t with him a t th e W hite Ho use whe re he ga ve them th e same 

fa lse versi on of th e Ton kin Gulf inci de nt he wo uld la te r th a t ev en ing giv e theAmerican peo ple o ver tel evisi on .

W ha t he did no t tell the assembled Se na te an d Hou se l ea der s was th a t seve ral 

ho ur s prev iously a tele gr am to Sec re ta ry of Defen se Rob ert M cN am ara ha d been 

rec eiv ed from C ap ta in H er rick , co mman de r of the des troy er Maddox, who w ith 

th e ad di tion of th e sec ond de st ro ye r (t he C. T urn er Jo y) ha d been prom oted to 

comm odo re an d to th e comman d of bo th de stro ye rs . Th e te le gr am re ad as 

fo llow s:

“R eview of ac tio n mak es ma ny recorded co nt ac ts an d torped oe s fired ap pe ar 

do ub tful. F re ak w ea th er eff ects an d ov er ea ge r so nar men ha ve ac co un ted fo r 

man y repo rts. No vi su al si gh ting by Ma ddox. Su gg est comp let e ev al ua tio n be fore 

fu rt h er ac tio n. ”

In oth er wo rds , th e one man un ique ly quali fie d to st ate w hat ha d ha pp en ed 

on th e ni gh ts of Aug us t 2 an d 4, sa id th a t it was do ub tful w het he r an y att ack 

ha d oc cu rr ed ; that, th er e ha d been no visu al sigh ting s of torp ed oe s or hos tile 

vesse ls, an d sugg ested co mp let e ev al ua tion before an y fu rt h er ac tio n.

T hat tele gr am ha d reac he d Jo hn so n ho ur s be fore his mee tin g w ith th e Co ngr es sion al lead ers. Yet he su pp re ss ed it. Ne edles s to sa y, ha d they kn ow n of it 

they wo uld ne ve r ha ve voted fo r th e reso lutio n. Th ey wo uld ha ve s aid : “L et's find 

ou t w hat ha pp en ed .” But th ey did no t know of Comm odore H er ri ck 's telegr am 

an d it was lik ew ise concealed from all mem be rs of Co ng ress duri ng the ne xt 

th re e da ys wh en both Ho uses were de ba ting it. So th e na tion was de libe ra te ly 

tric ke d in to the lon gest, co stlie st, mos t ne ed less of al l ou r w ar s.

Fo r, no t kn ow ing th e tr u th an d be lie ving Pre si den t Jo hnso n's ve rsion the 

Hou se pa ss ed the To nk in Gulf reso lu tio n un an im ou sly an d th e Sen ate 88 to 2, 

w ith th e ten ab se nt Se na tors r ec orde d in favo r.

How di d we find ou t w hat re ally ha pp en ed on th e ni gh ts of Aug us t 2 an d 4, 

1964? It ca me ab ou t because Sen at or Fulb ri ght ha d a ch an ge of hea rt . As floor 

m an ag er fo r th e reso lutio n he ha d ur ge d its speedy passag e. H e ha d de cli ned to 

ac ce pt an am en dm en t offered by Sen at or Gay lord Ne lson wh ich so ug ht to pr ev en t 

th e send in g of ou r armed for ces in to Sou th ea st Asia by ex pr es sing th e Se na te 

vie w th at th e reso lutio n im plied no ch an ge of U.S. po licy which ha d been only 

to send ar m s an d ad vise rs. Ful br ig ht too k the po sitio n th a t th e reso lu tio n spe lled 

no ch an ge in U.S. policy an d wa s me rely a ge st ur e of su pp or t of th e Pre si de nt . 

B ut whe n in su bs eq ue nt mon ths he saw ou r troo ps mo vin g ac ro ss th e Pacific 

first by thou sa nd s, then by tens of th ou sa nd s an d th en hund re ds o f th ou sa nd s, he 

re al iz ed he ha d bee n dec eiv ed an d ha d unw itt in gl y mislead his colleagues. So in 

1968 he rec on vened his Fo reign Relat ions Co mmittee , held hea ring s a t which the 

part ic ip ants in th e To nk in incide nt testi fie d an d it became cl ea r th a t no att acks 

suc h as Pre si de nt Jo hn so n ha d ch arge d ha d ta ke n pla ce, an d th at a reso lutio n 

givi ng Pre si de nt Jo hn so n th e auth ori ty to use troo ps an yw he re in So ut he as t 

Asia ha d been dra ft ed mon ths be fore th e To nk in in ci den t—dra ft ed by A ss is ta nt 

Sec re ta ry of S ta te fo r F a r E as te rn af fa irs. W ill iam P. Bu nd y.

The official dece ption co ntinue d. Add ressin g th e Co ng ress on Ja n u ary 4, 1965, 

Pre si dent Jo hn so n sa id ;

“W hy are we th er e? We ar e th er e, fir st, be ca us e a frie nd ly na tion has aske d 

us fo r he lp ag ai nst Com mun ist ag gres sio n. Te n yea rs ago the Pre si den t ple dg ed 

ou r help. Thr ee Pre si den ts ha ve su pp or ted th a t ple dge. We wi ll no t br ea k it 

no w.”
221

T hat st at em en t was also false. Ther e ha d bee n no re qu es t fo r he lp fro m ou r 

pu pp et, Die m, whom we ha d in st al le d in Saigo n. Th e only re qu es t he ha d mad e 

w as to he lp move som e Viet na mese from th e nor th to th e so uth, an d Pre si den t 

Eisen ho w er ha d prom ise d on ly econ om ic aid an d th a t de pe nd en t on re fo rm s th a t 

ne ve r too k place.

Pre si de nt Joh ns on r ep ea te d th a t falseh oo d th re e mon ths la te r a t Jo hns Hop kins, 

sa y in g :

“We are th er e be ca us e we ha ve a pr om ise to keep. Sin ce 1934 ev ery American 

P re si den t ha s offered su pp or t to th e people of So uth Vietn am . Thu s ov er ma ny 

.y ea rs we ha ve ma de a na tion al ple dg e to he lp So uth Viet na m re ta in its inde ­

pendence. I in te nd to keep th a t prom ise . To di sh on or th a t pled ge wo uld be an 

un fo rg ivea bl e wrong .”

In ad di tion to re pe at in g th e pr ev io us false ho od , th e st at em en t disclo sed ano th e r br ea ch of fa it h by ou r adm in is trat io n, wh en he allu de d to So uth Viet na m 

an d ou r he lp to re ta in its independ en ce. The Ge neva Ac cords ha d prov ided th a t 

ith e th re e fo rm er inde pe nd en t na tion s, La os, Ca mbo dia an d Viet na m would be 

re stor ed to inde pend en ce. In th e ca se of Vietnam th e co un try wo uld be tem po ­

ra ri ly divide d fo r pu rpos es o f de mob ili za tio n at th e 17th par al le l, bu t th a t be fore 

th e end of tw o ye ar s, na tio n- wide elec tio ns wo uld be held to de term in e who 

would ru le th e wh ole co un try. The U nited S ta te s ren eg ed on th a t co mm itm en t. 

Why? Be ca us e it was cl ea r th a t if elec tio ns were held. Ho ('hi Minh, a po pu lar 

idol, wo uld be ele cted Pre si den t an d he was a Co mm un ist . W ha t ou r polic ym ak er s cho se to ign ore wa s th a t Ho Chi Min was first an d fo remos t a nat io nal is t, 

seek in g th e inde pe nd en ce of hi s co un try an d op po sin g all fo re ig n do mination, 

w het her Fr en ch , Ch ine se, Ja panese or American . In fa ct he h ad aide d th e United 

S ta te s in ex pe lli ng th e Ja pan es e fro m Sout he as t Asia duri ng W orld W ar II , an d 

he proc laim ed his asp ir at io ns in th e sa m e te rm s as ou r re vo lu tion ar y fo re be ar er s. 

But th e as su m ptio n of o ur go ve rn m en t a t th a t tim e wa s th a t if Ho Chi Min we re 

■elected all Vietnam wo uld become a co mmun ist st ate an d th a t th a t ha d to be 

pr ev en ted a t all costs. Thi s fe ar ha d been in gr ai ne d in U.S. policy by th e “f all ” 

in 1949 of China to th e Com mun ist s an d th e re su ltin g depart ure of Ch ian g-Kai- 

'Chek to th e island of Fo rm os a, wh ich , now rena m ed Tai w an , became th e China 

th e U.S. rec ogniz ed.

So th e United St at es , in vi ol atio n of its prom ise to su pp or t th e Ge neva Accords, 

by fiat an d force recogniz ed an d cr ea te d So uth Viet na m as an in de pe nd en t na tion 

an d ha s ev er sin ce su pp or ted a succ essio n of co rr upt an d ty ra nnic al ru le rs who 

ha ve pr ac tice d all th e re pr es sion s th a t we att ri b u te to th e Com mun ist s. So th e 

an ti- co lo nialism th a t shou ld ha ve been U.S. po licy was disp lace d by an ti ­

comm unism .

So in st ea d of allowing th e co lonials to car ry on th eir revo lu tio n fo r in de ­

pend ence, fre ed om an d se lf-d et er m in atio n, th e United Sta te s moved in m ilitar ily 

to opp ose the m. It did so because U.S. le ad er sh ip was in th e gr ip s of an a n ti ­

co mmun ist ph ob ia, view ing Rus sia an d Ch ina as a mon olith ic me na ce to th e 

free wo rld. Th e “f all o f Chi na ” re-enforce d th a t fe ar , und er th e spe ll of wh ich 

Jo hn F ost er Dulles' “do mi no th eo ry ” sh ap ed United S ta te s policy. If Viet na m 

fel l. Lao s, Ca mb od ia an d Tha ilan d wo uld fa ll ; Co mmun ist forces wo uld sw eep 

ac ro ss th e Pacific, ta kin g o ve r th e Ph ili pp in es . A ust ra lia. New Ze ala nd . H aw ai i, 

an d we’d be fig hting them on th e be ac he s of C al ifor ni a. T hat fa nta sy de term in ed 

Un ite d Sta te s policy. And so. as I ha ve po in te d ou t, th e United Sta te s, w ith no 

lega l ju st ific at io n wha teve r, by fia t an d by force cr ea te d an inde pe nd en t So uth 

Viet na m. T hat is w ha t th e co nt in ui ng w ar has been ab ou t ev er sin ce an d st ill is.

Now. th e yo un g men who refu se d to be dra ft ed ma y no t ha ve know n all th e 

de ta ils of th e men da city an d th e del ib er at e de ce ptions th a t plu ng ed our co un try 

in to th is war. But they fe lt deeply th at th is was no t a w ar of de fens e of our 

co un try, th a t we ha d no t bee n at ta ck ed , as we ha d been by the Ja pan es e at Pe al 

H ar bo r, th a t no vi ta l in te re st of th e U nited Sta te s w as inv olv ed bu t th a t we ha d 

ba rg ed in. un as ke d, into a civil w ar th a t was none of ou r bu sin ess. I know how 

th ey fe lt be ca us e in ta lk in g to st uden ts a t va riou s colleg es as th e d ra ft mov ed 

clos er to them , th ey wo uld as su re me w ith deep si nc er ity th at if th is w er e a w ar 

of de fens e of ou r co un try they wo uld go will ingl y— bu t no t in to th is w ar in 

wh ich while co ns ta nt ly alle gi ng th a t we were figh tin g ag gres sio n we were in fa ct 

th e ag gres so rs. So they refu se d to go, an d fa r from be ing pe na liz ed they shou ld 

be ho no red fo r th eir wisd om an d th eir tr ue pa tr io tism . Th ey are th e un su ng 

he ro es o f th is w ar .

But fo r th os e wh o sw all ow ed an y re se rv at io ns they may ha ve ha d, did not 

re si st th e d ra ft , an d wen t— it is cl ea r th a t when they got in to Sout hea st As ia an d 

sa w th e m as sa cr e of i nn oc en t no nc om ba ta nt s, th e bu rn in g o f wo me n an d ch ildr en
222

with napalm, the saturation bombing which destroyed homes, hospitals and wholefamilies, making homeless refugees of those th at were not killed, turned loose in 

a defoliated and craterized wasteland—these nonresistant draft ers could no 

longer stomach those atrocities, would no longer partic ipate in this massive 

butchery, and deserted. They do honor to an America shamelessly misled and 

betrayed by its leadership. Their deserting was infinitely prefe rable to continuing as killers and maimers of a people against whom the United States has no 

grievance whatever.

My convictions in this matter, early formed when I viewed this war and 

United States participation in it as wholly different from our entry into World 

Wars I and II which I then considered and now consider fully justified, were 

crystallized by a scenario of horrors at the third American War Crimes hearings 

in Copenhagen in 1972. Among them was a 24 ye ar old school teacher. Her righ t 

arm was gone. Frag men ts of the bomb t ha t hit her school had torn it off. The 

same bomb killed six of the children outrigh t and crippled ten others for life. 

They are typical of the U.S. legacy in Southeast Asia, armless, legless children 

or children paralyzed by fragments striking the ir brain or piercing the ir spinal 

cord. Some of them cannot even use crutches but must craw l on hands and knees.

The men who refused to partici pate any longer in these atrocities should be 

granted immediate amnesty and with it a declaration of appreciation for the ir 

decency and humanitarianism . IIow shameful that they should be headed for 

imprisonment with the approval of an adm inistration that has harbored more 

convicted criminals tha n ever before constitute d a President’s entourage. Most 

of these had been associated with President Nixon for years and had had the 

opportunity to profit by his example and guidance.

How shameful when men in high places who have committed felonies in the ir 

responsible posts escape with a slap on the wrist—a fine, instead of th e multiple 

prison terms they deserve. The United States must unfortu nately forever bear 

the shame and stigma of a totally unjustified war of aggression into which our 

leadership tricked us and would have continued the slau ghter but for Congressional action which stopped the war las t August 15 and forbade furth er use of 

our milita ry in Southeast Asia. But we can make partial amends by freeing 

those who knew right from wrong and refused to continue to par ticipate in a 

monstrous and crim inal folly.

So I am hopeful and strongly urge th at the Congress promptly pass legislation 

granting unconditional amnesty to both the war resisters and deserters. Let them 

follow Abraham Lincoln’s example when he pardoned both dese rters from the 

Union cause and the Confederates who had been captured.

Mr. Drinan. Before I yield to Congressman Smith of New York, T 

would like to ask whether you would have any suggestions as to the 

carrying out or the implementation of your recommendations in legislation. Many bills are before us, as you know. I wonder if you have any 

thoughts on that to complete your statement.

Mr. Grtiening. I notice numerous bills tha t are slightly different. 

I believe tha t unconditional amnesty should be granted by the Congress. I do not believe in compensatory service. T think these men followed their consciences. And I think history will increasingly prove 

them right, and those who plunged into this inexcusable war, wrong. 

I thin k public sentiment is growing. But prejudice can easily be 

aroused by referring to them as draft dodgers and slackers and using 

phrases of that kind.

I think it took real courage for a man to refuse to go. He realized 

that he was risking imprisonment, and I think it took just as much 

courage, if not more courage, when a man had gone and saw what he 

saw and said. I cannot stomach this any more, this is nauseating, and 

got out. And I feel very definitely tha t there is a chance for the United 

States to redeem its own policy by recognizing tha t following one's 

conscience is perhaps the highest law.

And when you see what is happening down there now, and how 

this war which Bichard Nixon promised he would stop—said he would.
223

stop it in fa ct 14 m onths ago—an d he has n ot sto pped it , it is the Co ngress who stopped it—said he ha d end ed the wa r with hon or, and 

no thing cou ld have been more devoid of hon or th an the con tinu ed 

bom bing of Cam bodia concealed f rom the Ame rican people, th e satur atio n bom bing of No rth Veitnam , an d the com plete vio lations by our 

administ ratio n of the ceasefire pro vision s which were dr af te d about 

14 mo nth s ago. So th e whole th in g was dishon orable from st ar t to 

finish, and continu es to be dishon orable. An d if t he Congres s has the 

gu ts to pu t an e nd to this policy, wh ich is b oth v ery costly physical ly 

an d in matter s of mo ral ity , by which we continue to subsidize thes e 

crooked dicta tor s like Ngu yen Th ieu and Lon Nol and continu e the 

killing —in othe r word s, Ri ch ard Nixon is now tryi ng to do with 

money, wi th dollars, and with civilia ns, wh at Congres s has forbidd en 

him to do wi th m ili tary men. An d it is a disg race. And this goes back 

to the whole issue. As I said, thes e dra ft resiste rs or des erters were 

not people who h ad a lack o f conscience. Th ey were no t tr yi ng to evade 

a responsibility. Th ey fel t the y ha d a high er r esp onsibility. An d th at 

was the res ponsibility no t to eng age in an utterly indecent, imm oral, 

unjustifie d, and undec lared war.

Mr. Drin an. Tha nk you very much, Se na tor Gruen ing .

I yield to the gentlem an from New York, M r. Sm ith.

Mr. Smit h. Senato r, I ju st w anted to say tha nk you for com ing here 

and giv ing us your sta tem ent tod ay. Tha nk y ou very much.

Mr. Grue ning. It is a pleasure to be here.

I th in k th is is one of the ma ny causes whi ch the Congres s has got 

to concern its elf with. Th ere are ma ny change s we have got to mak e 

in consequence of the b etr ayal t hat has taken place in our gr ea t he rit ag e 

in the last 5 ye ars. An d this is certa inly one of them.

Tha nk you ve ry much.

Mr. Drin an. Th an k you very much, Se na tor Gruen ing .

Ou r next witn ess is a spe ake r who rep res ents the Am erican L egion. 

I now call upon M r. Her ald I). St rin ge r, th e direc tor o f the Na tio nal 

Legislative Comm ission, th e A me rican Legion, to in troduce the people 

who w ill be our next witnesses.

Mr. St rin ge r.

TESTIMONY OF HERALD E. STRINGER, DIRECTOR, NATIONAL 

LEGISLATIVE COMMISSION, THE AMERICAN LEGION

Mr. Stringer. Mr. Ch air man and mem bers of the subcommittee, 

the Am erican Leg ion is here tod ay at the com mittee’s invitatio n to 

pre sen t its views on the s ubject of amn esty . Ou r membership is deeply 

concerned wi th this prob lem, and we appre cia te the op po rtu nity of 

testifying in accorda nce with ou r mandate.

W ith your permission , Mr. Ch air ma n, I wou ld like to introd uce 

Mr. James R. Wilson at the end of the table, the directo r of our 

natio nal sec urity commission. Th is is t he prog ram comm ission within 

the Leg ion ha ving juris dic tio n ove r th is subject.

Ou r witness this aft ern oon. Mr. Ch air ma n, is Mr. James F . O’Neil, 

a pa st na tio na l com mande r of t he Am erican Legion, and the publisher 

of ou r L egion magazine. Mr. O’Neil is qualified to speak on th e s ubject 

of amnesty, ha ving been a mem ber of the Am nes ty Bo ard appo int ed 

bv Presiden t Tr um an follow ing W orld W ar II . He is here at the 

tab le with me and prep ared to present our form al statem ent.

Mr. Drinan. Than k you very much.
224

Mr. O’Neil, you ma y proceed as you like. It is nice to h ave you here.

TESTIMONY OF JAMES F. O’NEIL, PAST NATIONAL COMMANDER,

THE AMERICAN LEGION; ACCOMPANIED BY HERALD E.

STRINGER, DIRECTOR. NATIONAL LEGISLATIVE COMMISSION,

THE AMERICAN LEGION, AND JAMES R. WILSON. DIRECTOR, NATIONAL SECURITY COMMISSION, THE AMERICAN LEGION

Mr. O’Neil. Mr. Cha irm an an d memb ers of th e subcom mi tte e. I 

de ep ly ap pr ec iate the op po rt un ity an d the in vi ta tion to presen t the, 

views of the Am erica n Legio n on the qu estio n of Ex ecutive clemency 

fo r tho se who hav e faile d to comp ly wi th th e st at uto ry an d re gu lato ry 

requ ire men ts of the Selec tive Servi ce Ac t a nd those who d eserted from 

m ib ia rv service duri ng the Vietnam war.

F or th e rec ord , ou r cu rren t mem bersh ip ap pr ox im at es *2.700.000 

ho no rably disc ha rg ed fo rm er serv icemen an d wom en of W or ld W ar I. 

W or ld W ar II. Korea , an d Vi etna m. W it h th e ex ception of W or ld 

M ar IL the larg es t segm en t of ou r cu rr en t mem be rsh ip base th ei r 

el ig ib ility on Vietn am -e ra service.

W hi le the rea sons fo r be long ing to ou r or ga ni za tio n are man y an d 

va rie d, all of o ur me mb ers h ave a concern fo r ou r N at io n’s well-b ein g, 

par ticu la rl v in the are a of na tio na l def ens e. Thi s con cern has. fro m 

th e Le gi on ’s be gi nn in g in 1919 follo wing W orld "War I. man ife ste d 

itse lf in th e resolutio ns an nu al ly ad op ted at its na tio na l conventions.

Tod ay my ap pe aran ce an d the po sit ion T take on am ne sty are bas ed 

up on resolutio n 41 ad op ted at ou r 1973 n at io na l co nv en tio n. A copy of 

th is resolution is app en de d to thi s statem en t an d I resp ec tful ly su gg est 

th at it be ma de a nar t of the official reco rds of the se he arings .

Mr . D ri nax. W ithout ob jec tio n, it is so orde red.

[T he reso lutio n follo ws:]

55 t h N ation al Con ve nt io n of t h e A mer ic an Leg ion H eld in H on ol ul u, 

H a w a ii, Augu st 21 -23, 1973

Resolution No. 41.

Com mittee: National Security.

Su bjec t: Draft evaders a nd/or deserters.

Whereas, the majority of young men called to military service through the 

Selective Service process accepted their responsibility and served their country in 

time of need ; and

Whereas, a minority of young men chose not to accept their responsibility and 

through defiance of the law and disregard of the manpower needs of their country. dodged their obligation by leaving the United States to seek sanc tuary in 

other countries: and

Whereas, many of these men and others who deserted from the military are 

residing in other countries but desire to retu rn to the United States if prosecution and punishment can be avoided as they avoided their citizen's duty; and

Whereas, some politicians, some members of the judiciary, news media, clergy 

and oth er organizatio ns and agencies are advocating general amnesty or a “second chance” program for these expatriate s; now. therefore, be it

Resolved, by The American Legion in National Convention assembled in 

Honolulu. Hawaii. August 21-23. 1973, that we go on record as opposing any 

attem pt to gra nt amnesty or freedom from prosecution to those men who. either 

by illegally avoiding the draft or deserting from the armed forces, failed to 

fulfill the ir military obligation to the United States and th at each case should 

be reviewed under existing procedures available to the courts and the Pre sident; 

and be it furth er

Rewir ed. that The American Legion request prosecution to the full extent of 

the law anyone guilty of either of the aforementioned violations.
225

Mr. O’Neil. The dele gate s who unanimously adopted resolution 41 

rep res ent ed every one of the 50 State s and the District of Colu mbia. 

Th ey were all honorab ly discha rge d veterans o f wartim e service and 

rep res ented a cross section of Ame rican ethn ic, cu ltu ral, political, and 

economic life. Resolution 41 also has the unanimous su pp ort of the 

Am erican Leg ion Au xilia ry whose nearly 1 million members are the 

wives, m others, sisters, and da ug hte rs of men who served th ei r Nation .

Lik e you, we Legion nai res continue to lie concerned over the complex 

problems presented by the issue of amn esty . It has some emotional 

aspects with overtones of justice tem pered with mercy and 

un derst andin g.

Le t us hope th at as a result of these heari ngs, earnest and full consid era tio n will be given to all facets of the issue of executive clemency 

so th at we shall be able to discover a nd follow t ha t difficult line between 

the dictates of the law a nd the ch arity ou r m oral heritage demands.

Th e Am erican Leg ion has an intense and direct intere st in amnesty 

because our mem bers all were subject to the laws, regula tions, pressure s, and respon sibilities o f military service in defense of th e Un ite d 

State s and most also were subject to the opera tion of the Selective 

Service System.

We believe that.w e have a real and vital stak e in this issue since it 

concerns b asic ally the rig hts and respon sibilities o f the c itizen to bear 

arm s in the defense of his Nation. In 1783. Gen. George Wash ing ton 

expressed clea rly the responsibility o f c itiz ens hip w hich I believe goes 

to the heart of the proposition under discussion. Washin gto n said :

It may be laid down as a prim ary position, and the basis of our system, that 

every citizen who enjoys the protection of a free Government, owes not only a 

portion of his property, but even of his personal services to the defense of it.

Proponents of amn esty at the pre sen t tim e fall into two categories. 

One group advocates uncond itional amn esty for all military des erte rs 

and dr af t evad ers. T his group rea sons th at the Vietn am conflict w as an 

imm oral wa r f or the United S tates; th at th ose who recognized this and 

followe d their conscience ought not suffer any legal pen alties fo r being 

righ t while their country was wrong; and , the refore , amnesty should 

be a blan ket r ecognition of this.

Some spokesmen for thi s view go so f ar as to advocate full veterans 

righ ts and pensions fo r des erte rs and dra ff eva ders from th eir suff ering s in Canada, Sweden and elsewhere. The second gro up of prop onents offer amnesty to dra ft e vaders but not to military deserters, provid ed th at dra ft ev aders prove th eir s inc erity by pe rfo rm ing alt erna te 

service fo r the ir country.

The A merican Legion believes tha t most dr af t eva ders and deserters 

consciously decided to refu se to accept th eir responsibilitie s as citize ns 

un de r the law ; th at they evad ed th eir responsi bilitie s by flou ting outlaw s and legal reme dies ra th er than by going throug h the ava ilab le, 

legal cha nne ls of red res s; th at th eir actio ns in d eclining to obey ce rtain 

law s dis tas teful to them is co ntrary to sound legal and moral stan dar ds ; and th at the obligat ion s of c itizens hip canno t be a pplied to some 

and evaded bv others.

The amnesty question is clouded with a vas t amount of pr inted 

mate ria l, which, if tru e, suggests th at everyone is grop ing in the 

da rk on this subject and th at alm ost an ything except re fe rrin g it to 

ou r normal system of justice w ould be a risk. Th ere h ave been repo rts
226

in the press of a considerable amo unt of law -breakin g and crim e am ong 

ex pa tri ate dra ft evaders or deserters in Sweden. 1 am no t an expert 

on the subject, bu t these rep orts seem to be con sistent with the experience of the Am nesty Bo ard th at considered the 15,805 vio lators of 

the Selective Serv ice law in W orld W ar II . I t is a fu rthe r wa rning 

th at no one policy except to h ear every case may be a wise one.

As I told a Senate hearing on th is same sub ject abo ut 2 years ago, 

“I t is un fo rtu na te th at I am t he only survi vin g me mber of the Amnesty 

Bo ard appo int ed by Presiden t Tr um an .” Th e othe r mem bers were 

Ch air ma n Owen J. Rob erts , then a recentl y retir ed Ju sti ce of the 

Supreme Co urt, and Willis Sm ith , the n presiden t of the Am erican 

Ba r Ass ocia tion and la te r a U.S . Sen ator.

Because of wh at I believe to be im po rta nt to these proceedings, I 

cite two experiences. A t the very outset, the question of a gen eral or 

bla nket amn esty was raised by Justi ce Rob erts, who ind ica ted some 

support . After some discussio n it was resolved una nim ously to pr oceed wi th an exam ina tion of each case and det erm ine our recommendations on merit.

In sub mi tting th e repo rt 1 y ear l ater, C hairm an R oberts referre d to 

this situatio n bv ex pla ining to th e Presiden t he was glad th at such 

a decision was made, ad ding th at “ I never re aliz ed there were so man y 

who were not entitled to amnes ty.”

The Am erican Leg ion reso lved th at:

We go on record as opposing any attem pt to gra nt amnesty or freedom from 

prosecution to those men who, eith er by illegally avoiding the dr aft or deserting 

from the armed forces, failed to fulfill the ir military obligation to the United 

States and that each case should he reviewed under existing procedures ava ilable to the courts and the Pr esiden t; furtherm ore, The American Legion requests prosecution to the full extent of the law anyone guilty of eith er of the 

aforementioned violations.

In othe r words, we of the Am eric an Leg ion firm ly believe th at 

giv ing any wholesale amnesty—w hethe r con dition al or unc onditio na l—w ould mak e a mockery of the sacrifices of those men who did 

th ei r du ty, assumed th eir responsibilities in tim e of conflict and—in 

some cases—were killed or seriously wounded.

Fu rth ermor e, w hat would be the effect on the morale o f our Arm ed 

Forces if am nesty were gran ted to those who h ave vio late d the law and 

th ei r oath of service b v t ur ni ng th eir b acks and fleeing the ir co untry? 

Tn our opinion, it could only b adly u nde rmine th at morale an d ch eape n 

the value of hon orable service to one’s country —at the very mom ent 

these va lues are most in need of strength ening .

It is cle ar from the Legio n’s resolution th at our official opp osition 

to am nesty is not a to tal opposition to it, but an opp osition to any so rt 

of amnes ty (w ith or wi tho ut con ditions) to all dra ft evaders as a 

class. Our reso lution asks th at all dra ft eva ders be prosecuted. This 

mean s that, we would like each case to be h ea rd in court, and tri ed on 

its merits . Th e courts can deal with the pa rti cu lars of each case, and 

exercise leniency o r stern ness, b ased on the a ctu al fac ts brou gh t o ut in 

hearings abo ut each pa rtic ul ar dra ft evad er. Surely the cou rts will 

find some who are innocent, and some who sho uld be excused wi thou t 

any fu rthe r conditio ns.

I t is also impli cit in our resolution th at those fou nd gu ilty would 

still hav e open to them the ri ght of app eal. Should appeal fai l, the y 

would hav e recourse to the Pr es id en t’s pardon ing pow er if, on review
227

of the facts in each case, he wishes to extend additional leniency beyond what the courts may extend. This is implicit in our resolutions 

because any request for prosecution implies not only the possible findings of guilt but the finding of innocence, and the avenues for redress, 

appeal and pardon are available to all persons who are prosecuted.

Our request tha t dra ft evaders be prosecuted does not deny to them 

their full rights under the law, or the opportunity for Executive 

clemency. Our resolution, in effect, opposes any form of blanket amnesty. and asks that each case be considered on its merits. The only 

other example in or history of amnesty for wartime draft evaders 

certainly bears out the wisdom of this approach—and, of course, it is 

consistent with the whole American system of justice which is based 

on hearing the charges and the facts of each case.

There are some in this country who would create the illusion that 

every Vietnam dra ft evader was acting on high principle out of deepseated convictions against the war. When all cases were judged individually afte r World W ar II, nearly half were found to have been men 

wanted for murder, robbery, desertion of their families and other 

serious crimes.

On the other hand, others were found to have been legally exempt 

from military service, or they fell afoul of the law through ignorance 

or illiteracy. President Truman gave a complete pardon to 1,523 and a 

conditional one to 1,518, while more than 12,000 did not merit such 

treatment.

If the Vietnam draft evaders are all prosecuted, courts will be able 

to judge each case on its merits. They will again find a mixture, in my 

opinion, of victims of error, deliberate conspirators, and professional 

criminals. The President could then have them screened and consider 

recommendations for clemency in each case.

An act of Congress to provide an across-the-board stint of Government service in exchange for amnesty would offer that penance to some 

for whom it is too heavy a penalty and to others for whom it is too mild 

a punishment. The most flagrant offenders will get the best break and 

the least offenders the worst.

This is hardly equal justice under the law. A t least 10 Presidents, 

from Washington to Truman, have handled the amnesty question 

under existing machinery. An act of Congress that decides all cases 

without a hearing is neither necessary nor desirable.

I do draw the conclusion from them tha t the whole amnesty question 

movement is groping in such darkness tha t for Congress to rush into 

an amnesty enactment would be inadvisable on the general principle 

tha t acts of Congress should be based on sound conclusions drawn from 

sound information.

The number of dra ft evaders affected is often set in the press at 

70,000. But the Defense and Justice Department reports repeatedly 

put it at a much lower figure, if we are talkin g about men who might 

face prosecution in the normal run of things.

Numbers are not important to justice, but the figure of 70,000 is 

often cited in support of a need to grant a general amnesty to “reunite 

the Nation.” Tha t reasoning seems to be t hat such a large number of 

people is significant, purely on the basis of numbers and without 

regard to their individual acts.
228

Bu t it would seem to me th at the whole a rgum ent about “r eu nitin g 

the Na tio n” is one we should avoid . Ce rta inly man y pers ons w ould be 

embittered by a blan ket amnesty. It could res ult in a more divisive 

Nation. How can amn esty be equated with those who served and the 

fam ilies of th ose who gave their lives in Vi etn am as a re sult of obeying 

the laws enacted by Congress? “The reu nifying the N ation ” a rgu me nt 

does not deal w ith justice at all.

A fu rthe r com plication, based on pres s rep orts, is th at some of the 

men fo r whom blanke t amn esty is proposed are them selves conte mp ­

tuous of it. T he Co ngre ss was not com plim ented when these men chose 

to defy its laws and who would use an amn esty act to again express 

th ei r contem pt o f Congress.

I do not k now how tru e these rep ort s are. bu t I recognize th at these 

heari ng s are designed in an att em pt to establ ish that. Ce rtainly, the 

soundest inf orma tio n is t ha t dr af t evaders a re not one class of pe op le: 

th at th ei r acts were of a different degree arisi ng from different 

mo tives; th at some are more culpab le than o thers; and th at the s oundest conclusion is th at wc should avoid dispen sing the same justice to 

all of them.

Th ere is the add itio nal confused situatio n su rro un ding pr opo sals to 

offer Gov ernment service to the evaders as a means of penance. We 

have jobless Vie tnam vete rans, un fortu na tely in large num bers, who 

mi gh t welcome the op po rtu nity to serve th ei r country again in such 

created positions or, prefe rab ly, in bette r ones. What guara nte es ar e 

there th at for cin g the dr af t evaders on variou s Gover nment agencies 

to serv e “pe nance” would not saddle them with useless employees? 

Some dra ft evaders have m ade no bones abo ut bein g surl y and defiant. 

Th eir job attitud es might demoralize the career ser vants with whom 

the y mi gh t be wor king. Th is could be de va sta tin g in the VA system 

to hos pital patie nts , employees and the ma ny vol unteers from the 

veterans organ izations, the R ed Cross and o the rs who justly po int with 

pr ide to the ir VA hosp ital service.

Th ere was no amn esty gran ted af te r the Ko rea n war. It is. therefore , clear th at amn esty lias not been lig htly give n by our modern 

Am erican Pre sidents.

We can not believe th at the Congress will ever decide that, those 

who vio lated the law have the superio r moral position to the Pr es ident, the Congress an d to the men who served.

If Congress should decide th at they do. we won der who next will 

tak e up t he p retext and use the precedent to claim a m oral superio rity 

over some fres h enactm ents of the Congress.

We won der what future lega l dilem mas will be in stor e for us if we 

cre ate such an ex tra ordina ry preced ent as the Congress assent ing to 

the righ t of citizen s to determ ine un ila ter all y which laws the y will 

obey.

An y determination of amn esty based on the mo ral superio rity of 

dra ft law vio lators is co ntrary to our concept of justice. Histo ric all y, 

the Congress, the P res ident and th e Ju dici ar y have stru gg led to de ter ­

min e t he extent of power of each. Sho uld we now add a new dimension 

to th is three-sided stru gg le; nam ely, any citizen who claims th at his 

un ila teral view of mo ral ity is superor to the Congress, the cou rts and 

the Presiden t alike? If we esta blis h this as a correct view, the day 

will arriv e when the re will be little fu rthe r use for the Presi dents , 

the co urts or the Congress.
229

This Nation is faced with critical issues which need to be resolved 

without further delay. General amnesty for draft evaders and deserters 

is not such an issue at this time when over 1.200 Americans are still 

missing in action and unaccounted for in Southeast Asia.

There are some who say that general amnesty for those who “cut 

and run ” and refuse to serve their country will help to heal the divisiveness among our people. The American Legion disagrees. We believe that, on the contrary, such action would further divide our 

people, create more bitterness and contribute to a furth er erosion of 

confidence in our Government and in our elected officials.

We are left with the fact that we have an existing system that guarantees every man his day in court. It has its imperfections, but I do not 

know a better one than ours.

With vour permission, Mr. Chairman, and your colleagues, I also 

suggest tha t a copy of the President's Amnesty Board report be made 

a part of the record of this hearing.

Mr. Drinan. Without objection, it is so ordered.

[The report referred to follows:]

Report of th e P resident’s Amne sty Board

The President’s Amnesty Board, established by Executive Order of December 

23. 1946, to review convictions under the Selective Training and Service Act of 

1920, as amended, and to make recommendations for Executive Clemency, has 

completed its task and submits this, its first and final report.

Before adopting any general policies, the Board heard represen tatives of interested parties and groiq>s. It heard represen tatives of historic peace churches, 

of the Federal Council of Churches of Christ in America, leade rs of the Watchtower Bible and Tract Society (whose followers are known as Jeho vah’s Witnesses), officials of the U.S. Army and Navy, and the Natio nal Hea dqu arte rs of 

Selective Service, represen tatives of citize n’s groups, veterans’ organization s and 

pacifist organizations, some of the violators themselves, formerly inma tes of 

penal institutions, appeared in person or by represen tatives and were heard.

In perhaps one half of the cases considered, the files reflected a prior record 

of one or more serious criminal offenses. The Board would have failed in its duty 

to society and to the memory of the men who fought and died to protect it, had 

amnesty been recommended in these cases. Nor could the Board have justified its 

existence, had a policy been adopted of refu sing pardon to all.

In establishing policies, therefore, we were called upon to reconcile divergencies, 

and to adopt a course which would, on the one hand, he humane and in accordance 

with the trad itio n of the United States, and yet, on the other hand, would uphold 

the spirit of the law.

Examination of the large number of cases at the o utset convinced us t ha t to do 

justice to each individual as well as to the nation, it would he necessary to 

review each case upon its merit with the view of recommending individual 

pardons, and that no group would be granted amnesty a s such.

Adequate review of the 15,805 cases brought to our atte ntion would have been 

impossible had it not been for the cooperation of government departm ents and 

agencies, such as the Office of the Attorney General, the Federal Bureau of 

Investigation, the Bureau of Prisons, the Criminal Division of the Department 

of Justice, the U.S. Probation Officers, the Adm inistrative Office of the U.S. 

Courts, U.S. Attorneys throughout the country, the Armed Forces of the U.S., 

and the Headq uarters of Selective Service. The records of these officers were 

made available, and those in charge furnished requested information.

The information derived from all sources was briefed by a corps of trained 

reviewers. It included such essential data as family history, school and work 

records, prior criminal record, if any, religious affiliations and practices, Selective 

Service history, nature and circum stances of offenses, punishment imposed, time 

actu ally served in confinement, custodial records, probation reports, and conduct 

in society after release. In addition, the Board heard in most instances psychiatric repo rts for one or more volu ntary statem ents by the offender concerning 

the circum stances of the offense.
230

When the Board organized in Jan uary 1946, about 1,200 of 15,805 violators 

of Selective Service were in penal institutions, the number diminished daily. 

At the prese nt time there are 626 in custody; 550 of these have been committed 

since the c onstitution of this Board. The work of the Board was directed chiefly 

to examining the propriety of recommending restora tion of civil righ ts to those 

who have been retu rned to their homes.

In analyzing the cases we found th at they fell into classes, but that in each 

class there were exceptional cases which took the offender out of the class and 

entitled him to special consideration. The main divisions into which the cases 

fell were: (1) those in violation due to a wilful intent to evade service; and 

(2) those resulting from beliefs derived from religious training or other 

convictions.

At lea st two thirds of the cases considered were those of wilful violations, 

not based on religious scruples. These varied greatly in the light of all the 

rele vant facts disclosed in each case. It became necessary to consider not only 

the circumstances leading up to the offense, but the subject’s background, education and environment. In some instances what appeared a willful violation was 

in fac t due to ignorance, illiteracy, honest misunderstanding or carelessness not 

rising to the level of criminal negligence. In other cases the record showed a 

desire to remedy the fault by enlistmen t in the Armed Forces.

Many of the wilful violators were men with crim inal records; many whose 

record included murder, rape, burglary, larceny, robbery, larceny of Government 

property, fraudulent enlistment, conspiracy to rob, arson, violations of the na rcotics law, violations of the immigration laws, counterfeiting, desertion from 

the U.S. Armed Forces, embezzlement, breaking and entering, bigamy, drink ing 

benzedrine to deceive medical examiners, felonious assault, violations of National 

Motor Vehicle Theft Act, extortion, blackmail, impersonation, insurance frau ds, 

bribery, black market operations and other offenses of equally serious na tu re ; 

men who were seeking to escape detection for crimes com mitted; fugitives from 

jus tice; wife deserters; and others who had ulterior motives for escaping the 

dra ft. Those who for these or similar reasons exhibited a deliberate evasion of 

the law, indicatin g no respect for the law or the civil rights to which they might 

have been restored, are not, in our judgment, deserving of a restoratio n of their 

civil rights, and we have not recommended them for pardon.

Among the violators, quite a number are now mental cases. We have made 

no atte mpt to deal with them, since most of them remain in mental institu tions 

with litt le or no chance of recovery. Until they recover mental health, the ir loss 

of civil righ ts imposes no undue burden.

The Board has made no recommendation respecting another class of violators. 

These are the men who qualify for automatic pardon pursu ant to Preside ntial 

Proc lama tion No. 2676, date d December 24, 1946. They are the violators who, 

after conviction, volunteered for service in the Armed Forces prio r to December 24, 1945, have received honorable discharges following one year or more 

of duty. Most of those who, prio r to the last-mentioned date and subsequent 

to th at date, entered the Army and received honorable discharges with less tha n 

a yea r of service have been recommended for pardon. These men have brought 

themselves within the equity of Presidential Proc lamation No. 2676.

The second class of violators consists of those who refused to comply with 

the law because of their religious training, or their religious, political or sociological beliefs. We have classified them, generally, as conscientious objectors. It 

is of intere st that less than six per cent of those convicted of violating the act 

asserted conscientious conviction as the basis of the ir action. This percentage 

excludes Jeho vah’s Witnesses, whose cases were dealt with hereafter. Although 

the percentage was small, these cases presented difficult problems.

The Selective Service Boards faced a very difficult task in administering the 

provisions concerning religious conscientious objection. Generally speaking, they 

construed the exemption liberally. Naturally, however, Boards in different localities differed somewhat in their application of the exemption. In recommending 

pardons, we have been conscious of hard ship s resulting from the factor of error.

Many of the Selective Service Boards did not consider membership in an historic peace church as a condition to exemption to those asserting religious conscientious objection to m ilita ry service. Nor have our recommendations who were 

members of no sect or religious group, if the subject’s record and all the circumstances indicated that he was motivated by a sincere religious belief. We 

have found some violators who acted upon an essentially religious belief, but
231

were unable properly to present the ir claims for exemption. We have recommended them for pardon.

We found that some who sought exemption as conscientious objectors were 

not such within the purview of the Act. These are men who asserted no religious 

training or belief but founded the ir objections on intellectual, political or sociological convictions resu lting from the individual’s reasoning and personal economic ox-

 political philosophy. We have not felt justified in recommending those 

who thus have set themselves up as wise and more competent tha n society to 

determ ine their duty to come to the defense of the nation.

Some of those who asserted conscientious objections were found to have been 

moved in fac t by fea r, the desire to evade military service, or the wish to remain 

as long a s possible in highly paid employment.

Under the law, the man who received a IV-E classification as a conscientious 

objector, instead of being inducted into the Armed Forces, was assigned to a 

Civilian Public Service Camp. The National Headq uar ters of Selective Service 

estim ates that about 12,000 men received this classification, entered camps and 

performed the duties assigned them. Certain conscientious objectors refused to 

go to such camps, refused to comply with regulations and violated the rules of 

the camps in various ways as a protest aga inst what they thought unconstitutional or unfa ir adm inistration of th e camps. Some deserted the camps for similar 

reasons. We may concede the ir good faith. But they refused to submit to the 

provisions of the Selective Service Act, and were convicted for the ir intentional 

violation of the law. There was a method to test the legality of their detention 

in the courts. A few of them resorted to that method. Where other circumstances 

warran ted we have recommended them for pardon. But most of them simply 

asserted their supe riority to the law and determined to follow the ir own wish and 

defy the law. We thin k that this attitude should not be condoned, and we have 

refraine d from recommending such persons for favorable consideration, unless 

there were ex tenu ating circumstances.

Closely analogous to conscientious objectors, and yet not with in the fair interpretation of the phrase, were a smaller, though not inconsequential number of 

American citizens of Japanese ancestry who were removed in the early stages of 

the war, under military auth ority, from the ir homes in definite coastal areas 

and placed in war relocation centers. Although we recognize the urgent necessities of military defense, we fully apprecia te the natur e of the ir feelings and 

the ir reactions to orders from local Selective Service Boards. Prior to the ir 

removal from the ir homes, they had been law-abiding and loyal citizens. They 

deeply resented classification as undesirables. Most of them remained loyal 

to the U.S. and indicated a desire to remain in this country and to fight in its 

defense, provided the ir righ ts of citizenship were recognized. Fox- these we have 

recommended pardon, iix the belief that they will justify our confidence iix their 

loyalty.

Some 4,300 cases were those of Jehovah's Witnesses, whose difficulties arose 

over the ir insistence that each of them should be accorded a ministerial status 

and consequent complete exemption from military service, or Civilian Public 

Service Camp duty. The organization of the sect is dissimilar to th at of the 

ordin ary denomination. It is difficult to find a standa rd by which to classify a 

member of the sect as a minister in the usual meaning of th at term. It is inter ­

esting to note that no represen tations were made to Congress when the Selective 

Service Act was under consideration with respect to the ministerial sta tus of 

the members of this group. Some time after the Selective Service Act became law, 

and after many had been accorded the conscientious objector status, the leaders 

of the sect asserted that all of its members were ministers. Many Selective Service Boards classified Jehova h’s Witnesses as conscientious objectors, and consequently assigned them to Civilian Public Service Camps. A few at first accepted 

thi s classification, but after the policy of claiming min isterial sta tus had been 

adopted, they changed the ir claims and they and other members of the sect 

insisted upon complete exemption as m inisters. The H ead qua rters of the Selective 

Service, after some consideration, ruled that those who devoted prac tically the ir 

entire time to “witnessing,” should be classified as ministers. The Watcixtower 

Society made lists available to Selective Service. It is claimed that these lists 

were incomplete. The Selective Service Boards’ problem was a difficult one. We 

have found th at the action of the Boards was no t wholly consistent in att rib uti ng 

ministerial sta tus to Jehovah’s Witnesses, and we have endeavored to correct 

any discrepancy by recommending pardon to those we thin k should have beeix 

classified.
232

The sect lias many classes of persons who appear to he awarded the ir official title s by its headquarters, such as company servants, company publishers, adver­ tising servants, etc. In the cases of almost all these persons, the member is em­ ployed full time in a gainful occupation in the secular world. He ‘•witnesses,” as it is said, by distrib uting leaflets, playing phonographs, calling at homes, selling lite rature , conducting meetings, etc. in his spare time, and on Sundays and holidays. He may devote a number of hours per month to these activities, but he is in no sense a “minister” as the phrase is commonly understood. We have not recommended for pardon any of these secular workers who have witnessed in their spare or non-working time. Many of them p erha ps would have been granted classifications other than I-A had they applied for them. They persistently refused to accept any classification except that of IV-D, representing minis­ teria l, and therefore, complete exemption. Most of their offenses embraced re­ fusal to register, refusal to submit to physical examination, and refusal to repo rt for induction. They went to jai l because of these refusals. Many, however, were awarded a IV- E classification as conscientious objectors, notw ithstand ing the ir pro testatio n that they did not hand it. These, when ordered to report to Civilian Public Service Camp, refused to do so and suffered conviction and imprisonment rather than comply. While few of these offenders had theretofore been violators of the law, we cann ot condone the ir selective service offenses, nor recommend them for pardons. To do so would be to sanction an assertion by a citizen that be is above the la w ; that he makes his own law ; and tha t he refused to yield his opinion to that of organized society on the question of his country 's need for 

service. In summary we may sta te that there were 15,805 Selective Service violation cases inducted. In this total there were approximately 10,000 wilful violators, 4,300 Jevo vah’s witnesses, 1,000 religious conscientious objectors and 500 other types. Of this total 012 were gran ted Presiden tial pardons because of a year or more service with honorable discharges from the Armed Forces. An additional approximate 900 entered the Armed Forces and may become eligible for pardon upon the completion of their service. When the Board was created, there were 1,200 offenders in custody. Since t hat date an additional 550 have been insti tu­ tionalized. At the present time, there are 020 in confinement, only 70 of whom 

were in custody in Ja nuary 0, 1947.

Tabulation

Convictions undei-

 Selective Service Act considered--------------------------- 15, 805

Wilful violators (nonconscientious objectors), approximately------------- 10,000 Jehovah’s Witnesses, approximately------------------------------------------------ 4, 300 Conscientious objectors, approximate ly------------------------------------------- 1, 000 Other types of violators, approximate ly____________________________ 500 Those who have received Preside ntial pardons under Presidential Procla­ mation 2076 date d Dec. 24, 1945, approximately------------------------------ 618 Those who entered the Armed Forces and may be receiving pardon, ap pr ox im ately_______________________________________________ 900

Subtotal ________________________________________________ 1,518

Recommended by this board_____________________________________ 1. 523

Tota l recommended for pardon and who may earn pardon through service in the Armed Forces_______________________________ 3, 041

The Board recommends that Executive Clemency be extended to the 1,523 indiv iduals whose names appear on the atta ched list, attested as to its correct­ ness by the Executive Secretary of the Board, and that each person named receive a pardon for his violation of the Selective Training and Service Act of 

1940 as amended. Owen J. Roberts,

Chairman.

Willis Smit h,

J ames F. O'Neil.
233

Mr. O'Neil. Thank you.

Mr. Drixax. Thank you very much. Mr. O'Neil, for your testimony.

I think it should be pointed out for the record—I just went through 

all the bills here—tha t there is no such thing as anyone recommending blanket or wholesale amnesty. In every single bill there is some 

provision for a review or for a board. So would you agree, Mr. O'Neil, 

tha t it is not really appropriate to talk about blanket or wholesale 

amnesty, since nobody in the Congress is urging that in any way ?

Mr. O’Neil. I was following the dictates of the resolution adopted 

at the convention, Mr. Chairman. And we have had reports, in the 

press, of course. B ut I agree with you that there is no hill now being 

considered that would give what we might call an unconditional 

amnesty.

Mr. Drixax. In that connection, Mr. O’Neil. I and the subcommittee 

received a telegram from the American Legion when they learned in 

February of these forthcoming hearings. And the telegram is somewhat inconsistent—first it says that the American Legion is shocked 

and dismayed to learn that your subcommittee plans to hold hearings 

on amnesty for dra ft evaders and deserters, and then it goes on and 

says that this consideration is premature. I f it is premature, that means 

it is going to happen someday. Is there an inconsistency that I see 

there ?

Mr. O’Neil. I would say that tha t was based on the fact that the 

American Legion, and the national commander, thought tha t there 

were more important issues tha t should be considered. I commend the 

hearings to set the machinery in order, so that some day a fair evaluation of this whole problem can be made and submitted to the Congress 

of the United States.

Mr. Drixax. You would feel, therefore, tha t the Congress should 

act. Contrary to what the Department of Justice said this morning, 

you feel that the Congress does have the inherent power to enact legislation in this area?

Mr. O’Neil. I am not familiar with that. I would say this, Mr. 

Chairman, that I feel that we have the existing machinery now to complete what should be done, in my opinion, the existing machinery in 

the courts, the military courts and in the civil courts. And tha t is 

the position of the American Legion.

Mr. Drixax. In the civil courts, they have no statutory power to 

reverse a decision of a military tribunal tha t a person was not in fact 

entitled to a CO status.

Mr. O’Neil. But they still have an appeal, and some of these can 

be presented directly to the President of the United States.

Mr. Drixax. For commutation or for executive clemency.

Mr. O’Neil. That is right.

Mr. Drixax. But only the very wealthy and the people who have a 

bar association at their command can even think of getting clemency 

tha t way.

Mr. O’Neil. Let me sav this in connection with th at, Mr. Chairman. 

The American Legion provides legal assistance to men who have 

received other than honorable discharges; it provides legal assistance, 

free legal assistance and claims assistance, to men who are honorably

31—608—7‘ 17
234

dis charg ed an d who have claims again st t he Vete ran s’ Adm ini str ati on. 

We have done this in many cases an d have been very successful, I migh t 

add.

Mr. Drin an. I am very aware of th at , Mr. O’Xeil. In fact, I send 

ma ny c ons tituents to the Am eric an Leg ion fo r t hat service. B ut to the 

best o f m y knowledge, th e Am erican Legion has not a t any time taken 

the case of a pers on who claims th at he was a conscientious objector 

and th at he was denied th at status . A person who, in other words, 

may well be un de r cu rre nt prosecution. Has the Am erican Legion at 

any tim e ever t aken the case of a person w ho says he sho uld be give n 

amnesty ?

Mr. O’Neil . No, because thes e q uestions have been referre d dir ectly 

to the Presiden t and the ma chine ry whi ch exists fo r th ei r ge tting 

relief.

Air. D rin an. You kno w th e P reside nt’s attitud e. I t was reenunciate d 

th is morning. He h as said tim e and tim e again t hat he will no t yield 

in th is ma tte r. So I rea lly do no t think, in all candor, th at there is 

much rel ief there.

I am glad to hav e you here, because you are the one person who 

can tell us abou t the Am nes ty Review Bo ard of Pr esiden t Trum an. 

On the bottom o f page 8, you ind ica te th at u ltima tel y Pr esiden t T ru ­

man gave a complete pa rdon to 1,523 men, and a con dition al one to 

1,518, b ut th at , how ever, more th an 12,000 did not merit such tr ea tmen t. Wo uld you give me the norms how the Commission decided 

upon those who wou ld be fav ore d and those who wou ld not?

Mr. O’Neil. We are talk ing about Pr es iden t Tru m an ’s Am nesty 

Bo ard now ?

Mr. D rtnan. Yes.

Mr. O’Neil . In the beg inn ing , as I sta ted in my testimo ny, Mr. 

Ch air ma n, the q uestion of a general bla nket amnesty was raised. An d 

af te r discussion, it was resolved unanimously th at we would proce ed 

on an exam ina tion of each case and base ou r reco mmendations upon 

me rit. Now, in orde r to do th at , to get at th is and do it prop erl y, we 

appeale d to the At tor ney General of t he Un ite d States to fu rnish us 

wi th a team of law yer s who could place thes e cases in categories to 

facilitate our exa min atio n.

Mr. D rin an. Wh at are th e cate gories to whom am nesty was gran ted ? 

Who got am nesty, a nd why ?

Mr. O’Neil. Th ere were some with respec t to whom err ors were 

made by the Selective Service Board. They made errors in deter mi ning th e sta tus of some who ha d asked fo r religious conscientious 

objector stat us and it was not grante d.

Th ere were some who were illite rate and did no t un de rst an d the 

law. Th ere were some who fled the co untry w ith out un de rst an ding the 

law.

An d, of course, subsequently all of those were excused, at least we 

reco mmended amn esty for them . An d the Pr esiden t accepted th at. I 

wou ld say t hat wa s the case in abo ut 10 percen t of the cases b efor e us.

Now, in est ablishin g the cate gories, M r. Ch air ma n, we were helped 

considerably by the fact th at of the total numb er of cases, of the 

15,805, 4,304 were mem bers of the Je ho va h’s W itne sses sect. An d the 

con tention of th ei r counsel was th at the y should be gran ted mi nisteria l sta tus ra th er th an religious conscientious objector status.
235

Tn connection therew ith , the Bo ard recommended to the Pr es id en t 

of the U nited State s th at mini ste ria l s tatus which wo uld autom atical ly 

give them amn esty a nd which a uto mati cally would have g rant ed them 

defer me nt in the ori gin al ins tan ce before th eir Selective Service 

Board , sho uld be given to all of the mem bers of the Je ho va h's M itness sect who worked full time at Jeho va h's witn essing.

Mr. Drin an. Of the 1,523 th at were recommended by your Bo ard 

fo r wh at you call executive clemency, w ha t we call a mnesty, how many 

were Jeh ov ah ’s Witnesses?

Mr. O’Neil. Th at, I cannot tel l you, I am sorry. But I could get 

th at re cor d f or you.

Mr. Drin an. About how m any ?

Mr. O’Neil . Offhand , 1 would not dar e to say.

Mr. Drin an. Tw o-t hir ds of the m?

Mr. O’Neil . I wou ld say it was not a substan tia l num ber. I would 

say it w ould f all wi thin the are a of 10 perc ent of the ge ner al total.

Mr. Drin an. In the lig ht o f the years th at h ave tra ns pired, do you 

feel th at the Tr um an Am nes ty Review Bo ard did all th at it should 

have done?

Mr. O’Neil. I t did a ll it could hav e d one? I would say “ Yes” to th at 

question.

Mr. Drin an. You mentioned th at x nu mb er o f cases were broug ht to 

the attention of the Boa rd. I tak e it, the refore , it was not aut om atic, 

th at a pe rson h ad to h ear about the Bo ard and had to ap ply .

Mr. O’Neil. 1 would sav this, th at everyone ha d an op po rtu nity to 

ap pe ar b efore the Board. Now, in many instances counsel came in and 

rep res ent ed ind ividuals , and in some instances t hey rep res ented grea t 

num bers . But everyone had an op po rtu nity to ap pe ar a nd p res ent his 

case to the Amnesty Board. And ma ny did.

Mr. Drin an. B ut there were 15,800 pe ople who h ad the ir cases processed. Now, I tak e it th at they had to origi na te the inq uir y or the 

appli catio n themselves. An d 1 wou ld assum e th at there were th ou ­

san ds mo re who nev er he ard of the Bo ard or d id n ot come before th e 

Board , and who, if they are still living, still hav e an u ndesirab le dis ­

cha rge status.

Mr. O’Neil. They would have a court record, a conviction, not an 

undesirable discha rge.

I th in k th at all reasonable att em pts to reach them wer e made 

throug h the Ju sti ce De partm ent. IIo w exte nsiv e th at opera tio n was 

I do not know, and I would agree with you th at th ere were some who 

probably n eve r heard of the B oar d.

Mr. Drin an. Do you think th at if we ge t to an amn esty review 

board th at every person who is in tro ub le should have his case automa tically filed?

Mr. O'Neil . I w ould think t hat would be f air .

Mr. Drin an. Going back to the telegram of the Am erican Leg ion, 

in it you tell the su bcommittee that to subm it to such c onsidera tion of 

amn esty is prem atu re. W hen will it no longer be prem atu re?

Mr. O’Neil. I would say t hat we would feel be tte r a bou t i t i f we ha d 

some definitive rep orts on the missin g in action in South eas t Asia. 

Tha t wou ld clar ify the position of the delegates to the natio nal convention, I am sure .
236

Mr. Drixax. You mention that in your testimony at page 13. But 

would you spell out the inherent connection between that tragedy and 

the situation of amnesty ?

Mr. O’Neil. We think it is all part of the Vietnam war. An, of 

course, now that it has ended we would like to-----

Mr. Drixax. There is a lot of the Vietnam war that is still unresolved. In fact, there is still a war over there.

Mr. O’Neil. And that is why we feel tha t this is premature.

Mr. Drixax. You mean, we have to postpone consideration of all 

questions of amnesty until-----

Mr. O'Neil. I would not say that, Mr. Chairman. Certainly you 

could create the machinery that could help to expedite it when the 

time is proper to proceed with the amnesty question.

Mr. Drixax. I still do not understand what you mean by proper. 

Do you mean 1 year from now or 10 days from now? Suppose that the 

MIA’s were somehow-----

Mr. O’Neil. I would say that within the next year that tha t would 

be a possibility.

Mr. Drixax. I am glad to hear that. Thank you very much.

I am glad to see that our distinguished chairman is back.

I will yield to the distinguished gentleman from New York and 

Mr. Kastenmeier will resume the Chair.

Mr. Smith. Mr. O’Neil, thank you for giving us the point of view 

of the American Legion in regard to amnesty.

I wanted to ask you some questions about the basis of amnesty and 

President Truman’s Amnesty Board, but I think you have answered 

those questions to Father Drinan.

Father Drinan was seeking to find out if the American Legion supplied counsel or legal advice to draft evaders, and I think you said, 

“No,” they did not. But I would say that it was a safe estimate that 

any dra ft evader who had been indicted and appears in court is a lways represented by counsel, either the American Civil Liberties 

Union, or Public Defenders, assigned counsel, or his own counsel.

Mr. O'Neil. That is correct.

In connection with that, Mr. Congressman, apparently I did not 

make myself clear. But I did state t hat insofar as draft evaders were 

concerned, their cases would arise in our civil courts through the 

Department of Justice and the prosecution, and as you so well stated, 

they would be represented by counsel in such appearances before the 

civil courts.

Mr. Smith. Mr. O'Neil, from your experience on President Truman’s Amnesty Board, would it be your opinion tha t a question of 

amnesty could better be handled by such a lx>ard or under the present 

mechanism of our board system that would review under indictment 

charges against anyone who wished to throw himself into the justice 

system ?

Mr. O’Neil. Mr. Congressman, I think it would be an added protection of the rights of the individual involved to have such a board 

to which an appeal could be addressed over and above the decision 

of the court, because it is a multifaceted problem. And I think—I am 

prejudiced in this respect, of course—I think it was wise to have an 

amnesty board after World War II, I think tha t it was proper to have
237

such a hoa rd. An d I th in k it ren dered a gr ea t service. It was ap ­

pla uded by the press of th e N ation an d th e ge neral pub lic, the decisions 

th at were reached.

Mr. S mith. You feel, then, t hat p erha ps such an am nesty board , acting on the executive level, migh t do a be tte r job th an rel ying on the 

prese nt court system?

Mi-. O’Neil . No, sir. Th is would only en ter the pictu re af te r the 

decisions had been reached in the mili tary courts and in the civil 

courts. And th at is wh at tra ns pire d af te r W orld W ar II .

Mr. Smith. Did yo ur board look at only convicted dra ft evad ers?

Mr. O’Neil. T hat is rig ht , sir, except in some instances w here they 

turned them selves in—there were a very, very few who turned the mselves in, who had fled t he c ountr y and who turned themselves in, and 

th ei r cases were referre d to us directl y by the co urt systems after 

he ari ng th eir cases.

Mr. Smith. There have been pro posals, and some o f the b ills before 

us, of cours e, call for an amnesty bo ard to which each dra ft eva der 

would apply , pro bab ly, and subm it his case to th at bo ard on an indiv idu al basis, ra th er th an subm itting dir ectly to the juris dic tio n of 

the courts.

Mr. O’Neil. I th ink the cou rt system is prefe rab le, because of our 

experience, Mr. Congres sma n, first throug h the courts, th ro ug h the 

civil cou rts and the mili tary cou rts, and the n to a boa rd, if one is 

establis hed , eit he r by the Pr esiden t, the Congress, or both.

Mr. Smit h. One oth er question, Mr. O’Neil. I th in k you sta ted in 

your statem ent th at Mr. Justice Rober ts, the chairma n, in subm itting 

the rep ort of your boa rd, sa id: “I never realized there were so man y 

who were no t en titled to am nesty.” Now, were your bo ard 's recom ­

me nda tion s narro wl y based acc ord ing to the law in effect at the time? 

For instance, we have heard a lot of testim ony toda y about selective 

conscientious objecto rs, SCO , me aning in effect th at someone whose 

conscience says, “I do not like this pa rtic ul ar war, so I am not going 

to serve.” Were your g uidelin es and your jud gm ents based on look ing 

at t hat kind of selective conscience or on the ge neral ly accepted guide ­

lines of conscientious obje ction on the gro unds of reli gious belie f, 

fam ily and relig ious tr aining , a nd so fo rth ?

Mr. O'Neil. Mr. Con gressm an, I will answer that in two ways. Most 

of t he cases t hat came to our att en tio n in connection with the p roblem 

you raised in yo ur questions were those inv olv ing reli gious conscientious objectors as such with the exception—an d this spills over, as I 

exp lained , in the Jeho va h’s Witnesses, th at the y wan ted mi nis terial 

sta tus a lthough m any of them h ad been gr an ted religious conscientious 

objector status. But I th in k the courts have alr eady ruled in this 

country th at a pers on cannot mak e a deter mi natio n of wh at wa r he 

would su pp ort and wh at one he would not s upport. H e could not do it 

on the g rou nds of selecting the wa r in which he wou ld pa rticipate and 

opposing the one th at he did not wa nt to pa rti cipa te in. An d th at is 

the position of the Am erican Leg ion, too.

Mr. Smith. So th at Presiden t Tr um an ’s Am nes ty Bo ard on which 

you served, in recommen ding Ex ecu tive clemency, f or instanc e, to some 

one who had clai med to be a conscientious objector, would do so if 

your board fou nd he rea lly was a conscientious objector according to 

the stand ards then exi sting, an d that pe rhap s his d ra ft board ha d m ade 

a mistake ?
238

Mr. O'Neil. That is correct, Mr. Congressman. And I think we 

adopted a most liberal attitude on that, and recommended that where 

there were mitigating circumstances we should extend it to these 

individuals. Some of them were not articulate enough before their 

Selective Service Board to make their cases properly.

To properly present their cases.

Mr. Smith. Thank you, Mr. O'Neil. That was alluded to once 

before, tha t perhaps dra ft boards many times did not give proper 

counseling to a registrant.

Mr. O’Neil. Tha t is quite correct.

Mr. Smith. And where he had a good case under the law it never 

came through the board.

Mr. O'Neil. That is correct, sir. And we tried very conscientiously 

to correct those conditions.

Mr. Smith. Thank you very much.

Mr. Kastenmeier [now presiding]. In resuming the Chair I would 

like to express my appreciation to my colleague from Massachusetts, 

Mr. Drinan, for assuming the Chair. And I regret that I missed hearing the distinguished former Senator from Alaska, Mr. Gruening.

I have really no questions to ask of you, Mr. O’Neil. I am mindful 

of your long service to the Republic in many capacities. And we all 

appreciate that.

Mr. O’Neil. Thank you, Mr. Chairman.

Mr. Kastenmeier. I do note, however, in your statement tha t you 

draw the conclusion that the whole amnesty question is clouded and 

everyone is groping in such darkness tha t for Congress to rush into 

amnesty action would be inadvisable. I do not think it is indicated 

tha t the Congress is going to rush into this. The existence of these 

hearings does not in and of itself indicate tha t we will rush into 

enactment of any legislation. May T say, without meaning to offend 

anyone, that indeed we are less likely to rush into the enactment of 

anything than perhaps the Legion was at its convention in taking the 

matter up and drawing a resolution on the matter. I say th at partly 

because of the telegram we received from certain of your officers.

But in any event, we are searching for facts, and we are searching 

for guidance, and we are searching for, frankly, the recommendations 

of all facets of the citizenry of our Republic tha t have something 

thoughtful and informative and persuasive to say about the subject, 

being mindful that in the history of our Republic we have from time 

to time dealt with this. Today, in terms of numbers of individuals affected, we have more than in recent generations. So that 1 year after 

the war has ended, as you mentioned to Mr. Drinan, there are still 

wounds open with respect to tha t war, and elements unresolved. 

Nonetheless, we think for the dialog to ensure is appropriate.

Mr. O’Neil. I commend you for it, Mr. Chairman. And I commended the committee, as I did in my testimony.

Mr. Kastenmeier. We are grateful to you, Mr. O’Neil, for appearing with your colleagues.

Our next witnesses are Robert K. Musil, associate secretary. The 

Central Committee for Conscientious Objectors, and Jeremy Mott, 

Midwest secretary of the Central Committee for Conscientious 

Objectors.
239

TEST IMONY OF ROBERT K. MUSIL, ASSOCIATE SECRETARY , TH E

CENTRAL COMMITTEE FOR CONSCIENTIOUS OBJECTORS; ACCOMPA NIED BY JERE MY MOTT, MIDW EST SECRETARY, CCCO

Mr. Musil. Mr. Chairman, my name is Robert K. Musil. I am the 

associate secretary of CCCO, an agency for military and draft counseling. I want to speak with some urgency in favor of a universal and 

unconditional amnesty.

I am always somewhat embarrassed when I speak in public on the 

question of amnesty, because we have heard a great deal about the 

question of people who are articulate and educated. Although I may 

be proven wrong, in the case of my own testimony the only reason I 

am able to speak to you today is because I would be against the caseby-case review of the cases presented here. I was a captain in the 

U.S. Army. I am not proud of that fact. I was aware of a number of 

crimes committed by the Armed Forces of the United States in violation of the statutes of the United States and the Geneva Convention 

and other conventions. I did speak for a time fo r the Department of 

Defense, so I will try and live up to that reputation.

I want to state at the outset my concern that my brothers who served 

in the Armed Forces with me and resisted tha t war are unable to 

testify along with me today. Many of the brothers who served in the 

Armed Forces with me will be unable to testify today because they 

have been killed. Others are in exile, in prison, and are uninvited to 

such prestigious gatherings because they do not represent prominent 

and respectable organizations. I cannot speak on behalf of each of 

those men. but I can speak in general on the entire question of the 

role of m ilitary deserters and other military offenses in the Indochina 

war.

I want to point out tha t tha t war still rages, in fact, largely due 

to congressional inaction and the failure of the United States to 

implement the cease-fire agreement of Jan uary 27, 1973.

It is almost 2 years to the day since similar amnesty hearings were 

held before the Senate Subcommittee on Administrative Practices 

and Procedures, and it has been many more years since the events of 

My Lai, the invasions and secret bombing of Cambodia and Laos, the 

killings at Kent State, and a whole series of events tha t many Americans seem to wish to forget. I do not. and others that I think I speak 

in concert with, do not wish to forget those events. They are central 

to the granting of amnesty.

Recently I testified as a defense expert on behalf of Pvt. Richard 

Bucklin on trial for the crime of being AWOL at F ort Carson, Colo. 

Dick left the Army in 1968 in Germany in protest over the war in 

Indochina and the crimes being committed there. Unfortunately, my 

testimony and other testimony was not accepted. Dick was sentenced 

in Jan uary to 15 months to hard labor at Fort Leavenworth. So he 

cannot be here to speak for himself today.

I wish tha t they could be, and I wish tha t the committee had 

subpenaed those people and brought them here to testifv so tha t someone like myself, who can be here only because of the ability to address 

boards and panels and colonels and psychiatrists and chaplains can 

be here and they cannot. I will do the best I can. But I think they could 

speak far better than I could.
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The image of Dick Bucklin sticks very much in my mind as these 

hearings go on. I want to speak with urgency. Dick is sitting right now 

in Fort Leavenworth as we sit comfortably, or uncomfortably, under 

the lights in this room. And at the same time, Lt. William Galley, 

sentenced for the murder of Vietnamese civilians, is free on bail. And 

if the newspapers are to be believed, he is beseiged with job offers. 

A Federal judge even had the temerity to liken Galley’s situation to 

that of former Army Capt. Howard Levy, whose sole crime was refusing to make his medical skills available for the purposes of assassination, torture, and criminal war.

As a former U.S. Army captain myself, who refused to serve in 

Vietnam and was discharged as a conscientious objector, the image of 

Dick Bucklin at Fort Leavenworth, and Busty Galley with his job 

offers, is forever burned in my mind. What does it say about us as a 

people, as a Nation? And what shall I answer to my friends who went 

to Canada, many of them having given up hope for a decent America 

years ago?

Much of what T will say depends very much upon the actions of 

this Congress and ultimately on the actions of the American people 

themselves. I still believe, perhaps naively, that when the full truth is 

known about the war, and about the people who resisted it, the 

American people and the Congress will grant a quick, universal, and 

unconditional amnesty. The truth, however, has been buried in an 

avalanche of coverups, public relations, and political pragmatism.

We were told by the President in one of his many lies, tha t there 

were “only a few hunderd men who fled the country,” and we were 

entertained with the notion, in nationwide columns by Charles Colson, 

Patrick Buchanan, William Buckley, William White, and others, that 

deserters were few in number and a collection of “malingerers, opportunists, criminals, and cowards.” The irony of these judgments from 

such men, repeated before the House Judiciary Committee, does not 

need to be underscored. The purpose of such a campaign—which even 

now is reflected in the Senate “Earned Immunity Act of 1974,” where 

Senators Taft and Pell accept uncritically the Pentagon’s assertion 

that less than 5 percent of Vietnam-era deserters were motivated by 

antiw ar feelings—is clear, and I would like to examine those assertions in some detail.

During the Vietnam era, according to Pentagon statistics from the 

Office of the Assistant Secretary of Defense for Manpower and Reserve Affairs, there were approximately 504,000 deserters from the 

U.S. Armed Forces during the Vietnam era. Currently, about 30,000 

of those men are still at large. In my work, I see many of those men 

who decide after many years of torment living underground, being 

chased around by the FB I, that they need to turn themselves in. We 

have a great deal of experience with such men, and what I would like 

to do is turn around the question of desertion. I hear over and over 

again a kind of moral guilt put on the individual for their desertion. 

I think it would be better for the committee and for the people of the 

United States to ask what kind of military did we have, what kind of 

war did we run, that half a million men deserted? Who is responsible 

for tha t kind of desertion that in other armies woidd cause heads to 

roll ? The conditions in the Armed Forces and the war, I think, underly 

each case of desertion. If you ask the Pentagon, however, and their
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official guidance series, information guidance series—and I was an 

information officer for the Department of Defense—they claim that 

it is human nature that the grass somewhere else is greener. And T 

think that Colonel De Fiori and other spokesmen. Lieutenant General 

Benade and others say that those men left because they had romantic 

entanglements, personal problems, and so on. I think the facts speak 

differently.

Normally, we have discovered that in each case of desertion from 

the Armed Forces, there is a complexity of motivations. There is 

usually a precipitating incident—orders to Vietnam, the new exposure 

of some dreadful atrocity, racial or other abuse by a superior, or a 

personal or family crisis th at the military fails to recognize as legitimate. But there is always the underlying feeling t hat they are serving 

in a useless war or a war that they oppose, one in which most Americans were not called to serve. In listening to representatives from the 

American Legion and other organizations, one would think that every 

American carried arms during the Vietnam era. I think other people 

will testify that that is not the case. I t was an unfortunate minority, 

people who have been referred to as the victims who were forced to 

carry the burden of their war while other Americans went about their 

daily business.

I want to point out to the committee a discrepancy in Pentagon 

statistics concerning deserters tha t I discovered, and other people did 

too. And I tried to bring it to public attention. I attached to the back 

of my testimony a chart received from the Office of the Assistant 

Secretary of Defense on Jan uary 1, 1972. On th at chart they provided 

raw data tha t breaks down by year and by service from 1958 to 1972 

the numbers of men dropped from the rolls of their units, that is, 

administratively classed deserters. And next to tha t they have a column, number returned to military control, either apprehended or voluntarily. Having nothing else to do one night I added the column up 

with an adding machine. I wish Members of the Congress or the press 

or others here had done that. I worked for an organization that is 

busily scrambling for funds all the time, and I should not be wasting 

my time. However, when T read off the column and added it up I discovered th at there was a discrepancy in which, according to tha t chart 

at that time in January 1972, there were 134,000 deserters. I personally 

queried by telephone Lt. Col. James Hinebaugh. And he indicated to 

me tha t tha t chart is labeled inaccurate, no longer to be used; those 

figures are not relevant. However, the figures of numbers dropped from 

the rolls have continued to be repeated by the Department of Defense, 

while it is only the numbers returned to military control by year th at 

are no longer available. I would hope that the committee, in questioning the Department of Defense, would ask them about this chart. It 

seems to me that there are only two possible explanations, both of 

which are somewhat ominous. Either the Department of Defense was 

so incompetent for a period of about 12 years t hat they had no idea 

of the numbers of deserters and were missing about 100.000, or the 

numbers have been manipulated for political purposes. I do not know 

what the answer to that question is. I think th at th is subcommittee can 

find out the answer to that question.

Mr. Kastenmeier. On that point, is it at all possible tha t in fact 

there are—whatever the difference is, 140,000—deserters not returned 

to military control, somewhere at large?
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Air. Musil. Yes; it is possible I would not want to state categorically 

tha t that is the number of people. Obviously, the number is unknown. 

These people are all over the country, they are in their hometowns, 

they are in large cities. I know of a case where the parents of a deserter 

have his Vietnam medals hung over the fireplace. The neighbors think 

he is a hero. He is a deserter from the U.S. Armed Forces. Those cases 

are located in every town and every village in this country. I t is impossible to have an accurate reading.

One of the things the Pentagon tries to do, of course, is to have 

an air of infallibility. And in my experience in working through their 

information services that they are not infallible, and our information 

in dealing with such men is tha t often their records are misplaced— 

there is no record of them whatsoever. But I do not want to get bogged 

down. The numbers question is extremely distressing to me personally, 

whether there are 30,000 at large or 130,000 at large is really not the 

issue. There are large numbers of men who are still in jeopardy. They 

are being picked up righ t now, as we are speaking. It usually happens 

by a relative th inkin g it best that they be turned in, and they call up 

the Federal Bureau of Investigation. Or they get involved with some 

minor incident with the law and are discovered through a computer 

check. So the men who are attempting to sta rt new lives—and I will 

not bore you with hundreds of cases, although I wish I could—there 

are men who would like to start their lives anew, but are hounded 

throughout the country as criminals.

I would like to talk somewhat about the question.

I think most of my comments on the question of deserters and their 

motivation are available in an article I did for the Nation in April 

1973. I can give the full text of tha t to the subcommittee.

[The article referred to appears at p. 331.]

The other thing I was going to speak about was other than honorable discharges. However, other people will testify on that question. 

In fact, there are some veterans appearing who have other than honorable discharges.

However, I did want to speak briefly about the question of violence 

and nonviolence.

By and large, the opposition to this war was nonviolent, incredibly 

so, given the failure of the normal political process, traditional forms 

of political action, and lawful dissent to bring a quick end to a war 

that I believe to be unprecedented in its criminal and barbaric nature. 

And I think tha t anyone who looks closely at the facts of that war, 

who speaks to veterans, who look at the film, who listen to the testimony of people who talk about the atrocities they participated in, 

cannot deny th at fact.

Many Members of Congress supported tha t war, and of those who 

did not, I do not know of a single one publicly committed to pacifism 

or a life of nonviolence. All of you would be rejected as conscientious 

objectors by your local dr aft board or bv the military. And yet, when 

it comes to the question of amnesty, one would think that the Congress 

was peopled by the ghosts of Mahatma Gandhi. Yes; we can understand certain acts against the war, but not violence * * *.

Let me state my point bluntly. Tf you are committed to nonviolence, 

you will support amnesty. Tf you recognize violence as a sometimes 

necessary, if tragic, part of human life, you must weigh the minimal
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violence of those who opposed the wa r t o the w ar itself —again st sa turatio n bom bing of churche s, hospitals, schools, haml ets ; the wanto n 

destruction of forced urbaniz ati on, of free fire zones and haras sm ent 

and inter dic tio n fire ; again st napalm , pho sph orous, ant ipe rso nnel 

mines, bombs and bom blets; an d ag ain st the con ventional violence of 

jets , a rti lle ry , autom atic w eapons, yes—My Lai. A nd you must keep in 

mi nd the violence at home—the Ken t Sta tes, the police rio ts, the 

pro vocateur s, the Hu sto n pla n, the camp aig n again st the new left .

You mu st weigh your response, too, as a non pacifist, if you were 

dr af te d and ord ered to Vietn am , a wa r you deeply despised. I would 

suggest th at many of you would have been ab sent wi tho ut official leave, 

or would hold bad discha rges, or i f you were thw arted and des perate 

enough migh t have struck out at your ser geant or commander, or attem pte d to stop the war throu gh some act of sabotage.

I qualified only because I became conv inced th at I was opposed to 

.all wars. I also sub mitted a GO-page document on conscientious objection , inc lud ing historical quotes. I ha d one of the finest military 

law yer s in the country, and I was able to receive an honor able dis ­

cha rge. If men such as yourselves ha d been ser vin g in the Vie tnam 

war and were deeply opposed to it b ut n ot pacifists, the re would h ave 

been no reli ef.

In fa ct, th e m ili tary went to grea t leng ths, it seems to me, to cover u p 

the av ail ability of such discharges. Ou r organiz ati on had to go to the 

tro uble with our lim ited resou rces of print in g up nearl y a qu arter 

millio n book lets to hand out free to G I’s to tell the m th at there were 

discha rges availab le. I think the subcom mittee sho uld call in the De ­

pa rtm en t of Defe nse and ask them wh at p rov isio ns the y too k to make 

sure th at peop le were aware of th ei r rig ht s and disc harges.

An d finally, even if you were awa re, it was only those people who 

could prese nt their case in some tra di tio na l, philosop hic al, religiou s, 

and othe r moral testimony to caree r chaplains and com manders. Th e 

or dina ry G I’s who hated t hat w ar, who were de eply fa m ili ar w ith the 

atroci ties, who may have been bea ten by th ei r sergea nts—and I th in k 

you are all aware of such incidents, alt ho ug h the y are inc rea sin gly 

buried—there was no way ou t other th an desertion. An d I would 

agree with the rem ark s of Se na tor G ruening , who h ad a g re at deal of 

influence on my own life. A nd I was glad to h ear him sp eak un equ ivocally abo ut the mo tivations of deserte rs. I th in k the y did the righ t 

thi ng.

[Mr. M usil’s state me nt follo ws :]

Statement on Amnesty of Robert K. Mus il, Associate Secretary, CCCO/An

Agency for Military ano Draft Counseling

My name is Robert K. Musil. I am Associate Secretary of CCCO/An Agency 

for Military and Draft Counseling. I wa nt to speak with some urgency in favo r 

of a universal and unconditional amnesty. It is more than a yea r since the signing of the Cease-Fire Agreements in Indochina, although than ks to Congressional 

inaction that war still rages. It is almo st two years to the day since similar 

amnesty hearings were held before the Senate Subcommittee on Adm inistrativ e 

Practices and Procedures, and many more years since the events of My Lai. the 

invasions and secret bombings of Cambodia and Laos, the killings at Kent State 

and a whole serie s of events that many Americans seem to wish to forget, but 

which are central to the grantin g of amnesty.

Ju st recently, I testified as a defense expert witness on th e subject of de serters 

and amnesty at the pre-trial hearing of Pvt. Richard Bucklin at Fo rt Carson,
244

Colorado. Dick left the Army in 1968 in protest over the war and returned over 

live years later to demand amnesty. He was sentenced to 15 months hard labor 

at Ft. Leavenworth. He is there now, even as we talk. And when he completes his 

sentence, lie will have suffered nearly seven years for an act of protest over a 

war that most Americans have long since recognized as wrong.

In the meantime, Lt. William Calley, sentenced for the m urder of Vietnamese 

civilians, is free on hail, and if the newspapers are to lie believed, is heseiged 

with job offers. A Federal judge even had the temerity to liken Galley’s situation 

to that of former Army Captain Howard Levy, whose sole crime was refusing to 

make his medical skills available for the purposes of assassination , torture, and 

criminal war.

As a form er U.S. Army Captain myself, who refused to serve in Vietnam and 

was discharged as a conscientious objector, the image of Dick Bucklin at 

Ft. Leavenworth, and Rusty Calley with his job offers, is forever burned in my 

mind. What does it say about us as a people, as a nation? And what shall I 

answer to my friends who went to Canada, many of them having given up hope 

for a decent American years ago?

Much of what I will say depends very much upon the action s of thi s Congress 

and ultim ately on the actions of the American people themselves. I still believe, 

perhaps naively, that when the full tru th is known about the war, and about 

the people who resisted it, the American people and the Congress will grant a 

quick, universal and unconditional amnesty. The truth, however, has been buried 

in an avalanche of cover-ups, public relations, and political pragmatism.

I will focus on the plight of deserters, those given other-than-honorable discharges, and those charged with or convicted of military crimes, because it is in 

these are as that there is the most myth, the least enlightenment, and the grea test 

need. Myths abound, for example, about deserters. Most people rely on World 

War II cliches and stereotypes of the bad guy slinking away from his buddies 

under fire, or they took at face value the Administration’s coordinated media 

campaign of disparagement t ha t followed the signing of the cease-fire agreements.

TH E ADMIN ISTRAT ION CAMPAIGN TO DISCREDIT DESERTERS

We were told by the President that there were “only a few hundred men who 

fled the country,” and we were entertained with the notion, in nationwide 

columns by Charles Colson. Patric k Buchanan, William Buckley, and William 

White, and others, that dese rters were few in number and a collection of 

“malingerers, opportunists, crim inals and cowards.” The irony of these judgments from such men, repeated before the House Jud icia ry Committee, does 

not need to be underscored. The purpose of such a campaign—which even now 

is reflected in the Senate “Earned Immunity Act of 1974,” where Senators Taft 

and Pell accept uncritically the Pentagon's assertion that less than 5% of 

Vietnam-era deserters were motivated by an ti-w ar feelings—is clear. By portray ­

ing the number of deserters at large as insignificant, and impugning the ir 

motives as confused at best, but more likely as dishonorable and criminal, the 

Adm inistration hoped in one blow to discredit its amnesty opposition, justify 

its war policies, and cover up long-standing abuses in the Armed Forces.

TH E FACTS ABOUT DESERTERS

Let us take a fresh look at the facts concerning those few hundred malingerers, 

cowards and criminals. First, it must be emphasized th at the term “dese rter” is 

simply a convenience. It is used as an administrative classification by the military 

to refer to those persons who have been absent with out leave for more than 

thirty days, and who have been dropped from the rolls of the ir unit. Fa r greater 

numbers of service members were absent without leave for periods up to a 

month throughout th e Vietnam War.

The numbers of those administratively classified as deserters during the Vietnam era, however, is staggering and probably underreported. For Fiscal ’65 

through mid-Fiscal ’73 (roughly from the Gulf of Tonkin incident through the 

signing of the Cease-Fire Agreements), the Pentagon repo rts over 500,000 cases 

of desertion, and over 30,000 dese rters still at large. Even accepting these figures 

for the moment, which I do not, we can understand Administration atte mpts to 

minimize and vilify deserters. In addition to well-known protests among GIs, 

ano ther significant segment of the Armed Forces (about 5% of the Army and 

Marines) protested the war the best way they knew how—by leaving. In 1971,
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in the Army alone, 79,000 soldiers (7.3% of all Army personnel) deserte d. This 

desertion rat e was more tha n trip le the highest rat e duri ng the Korean war, and 

high er tha n any rat e recorde d duri ng World War II. If we add the short-term 

AWOL r ate in the Army (17. 7% in 1971 ), near ly one qu art er of all GIs walked 

away from the ir units for periods rang ing from a few days or weeks to years.

PENTAGON ASSERTIONS ON DESERTER MOTIVATION

What were they escaping from ? Given the unpo pula rity of the war at home, 

repo rts of ma ltre atm ent and mismanagemen t of personnel, of racism and unfairness in mil itary justic e, one would suppose th at the se record rat es of dese rtion 

were related to anti-w ar and anti-m ilita ry feeling. Not so, says the Petnagon. 

The official Depa rtme nt of Defense Info rma tion Guidance Series claims:

It is human na tur e that the grass somewhere else sometimes appe ars 

greener. Since the beginning of military forces, the urge to “go over the hill ” 

has been more tha n some could resist. . . . Only a small percentage . . . of 

dese rters who have tied to a foreign country in recen t years have been 

motiva ted by politic al reasons or anti-Vie tnam feeling.

To back up this contention, the Office of the Assistant Secretary of Defense, 

Manpower and Reserve Affairs, has widely ci rculated stud ies th at pu rpo rt to show 

th at less tha n 5% of all dese rters were motivated by an ti-w ar or politica l feeling. 

These figures, presen ted by then Maj. Gen. Leo S. Benade, Deputy Assistan t 

Secretary of Defense, are based on repo rts from field commanders on Form 

I)D -N (A ) 1039, in which the command ers estimate a man ’s motiv ation for leaving. These repo rt have been required only since December 24, 1970, and are entitl ed “U.S. Military Absentees Who Have Placed or Have Attem pted to Place 

Themselves Under Control of a Foreign Natio n to Pro tes t Against the U.S. or 

Commit Disloyal Acts.”

Given tha t, from our experience, most dese rter s remain within the United 

States by going “undergro und” in larg e cities, or even in the ir home towns, and 

th at such infor mation became desir able to the Pentag on only af ter political 

exiles received widepspread atte ntio n and is based on the estimates of field 

commanders, wha t credib ility shall we give such analy ses or motivati on?

I suggest th at the Subcommittee deter mine how and why such repo rts were 

instig ated, and res tat e the question to the Depa rtme nt of Defense as, “What is 

your estimation , based on what information, of the percentage of Vietnam-era 

dese rter s whose motiv ation was solely selfish and personal, and entirely unrelated to opposition to the Vietnam War, politic al feelings, racial injustice, 

denial of prope r discharg es, and maltre atm ent and mismanagem ent on the pa rt 

of the Armed Forc es?”

I would hope th at the Penta gon would reply with some humil ity, th at in fact 

they do not know. Inded, it is this mechanical theory of huma n motiv ation th at 

must be rejected in approaching the question of amnesty. Were the ir motives 

pure or imp ure? Th at is the usual way of sta ting the problem. Our exi»erience a t 

CCCO, over the Vietnam era, is that GIs have sought discharges, opposed the 

war, gone AWOL, out of a complex of motiva tions. In each case of the thousands 

with which we have had contact, the re is usua lly a prec ipitatin g incident—orders 

to Vietnam, the new exposure of some atrocity , a new round of bombing or invasion, or some incid ent of denial or discharge, racia l or othe r abuse by a 

superior, or a personal or family crisis th at the mil itar y fails to recognize as 

legitimate—but alwa ys the re is an unde rlying feeling of the illegitim acy or uselessness of the war in Indochina or of servin g in the Armed Forces duri ng such 

a p eriod th at su pports the decision to act.

The motivation s of deserters , in my opinion, have not been, and canno t be, 

fully explained by th e Pentagon. The essential questio n remain s—why were there 

so many and why do the ir numbers rise and fall in almost direct corre latio n to 

our direct involvement in the Indochina War? Shall we blame record desertion 

rat es on personal, ment al and moral failure , or on the machinatio ns of th at evil 

pediatric ian, Dr. Spock?

DISC REPANC IES IN PENTAGON DESERTION STA TISTIC S

Depa rtme nt of Defense statist ics on the numbers of deserte rs are presented 

with an au ra of infa llibility similar to th at of the motiv ation al analys es, but 

they are equally suspect. On J an ua ry 1, 1972, OASD (M&R A) released unto tale d 

figures showing the number of deserte rs from fiscal yea r 1959 through the first
24G

few months of fiscal 1972. These were broken flown into Armed Forces members 

dropped from units and retu rned to military control by service and by year. The 

raw figures for those dropped from fiscal 1965-early fiscal 1972, when added up. 

came to 421,101, while those retu rned came to only 280,625. These figures would 

indicate that as of Jan uar y, 1972, there were 134,479 deserte rs at large.

When questioned about this discrepancy, Lt. Col. Jam es Heinbaugli of OASP 

(M&RA) state d, “Tha t chart is now marked, ‘not to he used, inaccurate.’ We no 

longer give the breakdown figures by year for numbers retu rned to military 

control. You have the las t chart of that type.” Th at cha rt, however, exactly 

matches c urrent figures from DoD on numbers dropped from unit rolls, which are still given by year. Only the numbers returned are no longer given by year or service. They are a vaila ble only in summary.

The conclusion is obvious and ominous. Either Pentagon record-keeping from 

1958-1972 was inac curate to the tune of 100.000 de serters, or the current figures 

of those returned to military control have been manipulated to hide a massive 

problem and serve political ends. Whatever the true figures, we can proceed on 

the conservative assumption that there are at least 30,000 deserters still at large, and th at during the Vietnam era at least 500,000 members of the U.S. Armed 

Forces deserted.

WH O DESE RTS? WH O IS RESPO NSIBLE?

The question of why these men deserted and had to suffer as much as they have 

must be turned around. Who is responsible for creating the conditions leading to 

the ir desertion? Why were they not discharged before being driven to such an 

extreme solution to their problems?

A few quick examples illu strate the question of responsibility. Take Tom, a 

black Marine from Philadelphia who had to quit high school to help his mother, 

on welfare, raise nine other children. He joined the Marines to earn money. 

When his wife began to have complications with her pregnancy. Tom went to his 

drill instructor for help, but got none. Tt was then he left Camp Lejeune to 

suppo rt his mother and expe ctant wife. Finally a neighbor reported him. He was 

picked up by the FBI and turned over to the Marines to face general courtmartia l charges. There are in the military supposedly provisions for emergency 

leave, compassionate tran sfer, and even discharge because of hardship. Why was 

Tom denied one of these alternatives, and who is responsible? Shall he not receive 

an amnesty because the motivation behind his AWOL is “personal” or shows 

“inab ility to adjus t” ?

IIow about Scott, a young man from Peoria, Illinois, and typical of many Vietnam veteran s who deserted after they got back to the States? He had enlisted 

in the Marines and was soon fighting along the DMZ, where his position was 

overrun the first week. Scott has a formidable collection of medals to show for 

his bravery, but as he fought he became sickened by killing, especially the senseless destruction and killing of civilians by U.S. troops. He turned to his chaplain 

for help, expla ining t ha t he could no longer kill and wanted out. But he was told 

simply to stick i t out; no menton of conscientious objector discharges. Like many 

soldiers in Vietnam, he turn ed to drugs for escape and became dependent. Upon 

his ret urn to the States, he again turn ed to a chaplain for help with his drug 

problem and his feelings a gainst war, but was merely advised to pray. In desperation lie w ent AWOL and sought drug counseling on his own. He shook his habit, 

and then turn ed to militar y counselors for help. Despite counseling and an excellent war record, he received an Undesirable Discharge.

What were Scott’s motivations? Political opposition to the war and w ar crimes? 

Conscientious objection? Psychological, medical? Personal? In the long run, it 

does not matter. What does ma tter is that he was a victim of liis government's 

wa r policies, and a victim of the m ilitary ’s policies of reta ining personnel at practically any cost. What is important is where responsibility lies. The military will 

claim th at abuses were isolated. Or if I and othe rs were allowed to testify long 

enough, they would agree much of this is true, but after all we are only speaking 

of a minority of servicemen—less tha n 10% who did not receive honorable discharges durin g the Vietnam era.

These persons—the approxim ately 450,000 holders of other-than-honorahle 

discharges, some 30,000 more deserters still at large, and those still in military 

stockades and prisons, have been disproportionately black or members of other 

minority groups and poor. Whether black or white, they were unable to obtain 

deferments or exemptions from the dra ft, unable to find draft counseling or 

other legal aid, and were from the star t drafted, or enlisted under pressure of
247

the dra ft, in dispr oportion ate numbers. It was only af ter entr y into the Armed 

Forces th at they met with syst ematic racism, mistrea tme nt, and discovered the 

realitie s of military life and the wa r in Vietnam. Having turn ed aga ins t the war 

or the mili tary , the ir options were few.

LEGAL DISCHARG ES LIT TLE KN OW N, UNJU ST LY GIVEN

The mil itary made litt le effort to make the ava ilab ility of discha rges known. 

In fact, CCCO had to print and distrib ute free to GIs near ly a qu art er of a million booklets describing disch arge righ ts. Even if GIs were awa re of dis­ charge options, they were given reluctantly and spars ely throu ghou t the A ietnam 

era.Until Fede ral Court, interventio n in the process in I960, for instance, most 

applic ation s for conscientious objec tor disch arge were routin ely turn ed down. 

And even after the Supreme Court decision in Welsh v. U.8. which broadened 

recognition to non-religious objectors to war , most GIs could not qualify for such discharges. Fir st, it must be recognized th at CO sta tu s per tain s only to those persons who are opposed to all war, not ju st the w ar in Vietnam. Thus, for most dissentin g GIs, who are not pacifists, a CO discharg e was an impossibility from the beginning. Even if an ord inar y GI did turn aga ins t all war, lie was unlikely to survive the rather middle-class-based procedures of applications, let ters of 

suppo rt, interv iews with care er chaplains, psy chi atrists and a usually unsympathe tic commander. The same holds tru e with othe r discha rges for erron eous indu ction /enlistm ent, hards hip, medical, or psychological problems. The mili tary made no concerte d 

effort to car ry out the provisions of the law, and most GIs were simply una ware of the ir options, or unabl e to follow through on them successfully with out ade­ quate counseling or legal advice. Faced with these obstacles, most GIs, forced to choose between harsh sentences in the stockade or contin uing duty in violation 

of the ir consciences and real needs, simply wen t AWOL. It was the mi lita ry’s responsibility to meet the needs of these men. Dr. Cur tis Ta rr testified before Senator Kennedy’s hearings on the dr af t and amnes ty in 

1972 that large nu mbers of men h ad been illegally drafted . The Gates Commission, among others, reported th at before recent pay raises many GIs were des titu te and forced to live on welfare. Dr. l’eter Bourne has wr itte n th at th e psychological stresses of basic tra ining are even more severe tha n those experien ced in combat. And, of course, repo rts of racial abuse, stocka de beating s, spinal meningitis, lack of medical care were ram pan t throu ghout the Vietnam er a. l ’eter Barn es observes 

in Pawn s: The Plight of the Citizen Soldie r th at “every week at Fo rt Dix, New 

Jersey , the Army’s majo r Nor thea ster n tra ini ng base, the re are an avera ge of 

four suicide attem pts. . . . Nine actual suicides occurre d at Ft. Dix in 1968.”

AN TI-AMN ES TY DISTORTIONS HIDE WAR, MILIT AR Y FAU LTS

No wonder the Nixon Adm inist ratio n has trie d to disc redit dese rters . To acknowledge their tru e numbers and the ir real moti vatio ns would requ ire an admission th at massive numbers of ord inary GIs rejected the war, and th at countless thou sands were denied human e tre atm en t and legal discharges by a mili tary th at could keep its troops in the field only by fea r and force. If the tru th were known about dese rters , the Adm inist ratio n migh t be forced to consider sweeping changes in military justice, trainin g, and personnel policies, including 

the cur ren t d ischa rge system. Such changes are bound to come, bu t in the mean time wh at of the victims? The Dep artm ent of Defense Report of the Tas k Force on the Adm inist ratio n of Milit ary Jus tice in the Armed Forces sta tes th at “system ic racial disc rimi nation exists throughout the armed services and in the mil itary justice system. No command or ins tallatio n—and, more inqi ortant, no element of the mil itary sys­ tem—is entirely free from the effects of system ic d iscrimin ation a gai nst minority 

servicemen as indiv iduals an d as groups.” I would add th at the mili tary justice system, as well as the counselin g by 

commanders, chaplains , psyc hiatr ists, personnel officers and othe rs charg ed with the welfare of servicemen is stacked again st those who are i>oorest, lea st edu­ cated, or most likely to object to war and mil itar y service. The res ult is trip le discrimination, mainly by class or race, aga inst those who a re forced by the dr af t or othe r circumstan ces to serve in the A rmed Forces, are then a bused and denied righ ts inside, and finally are b rande d for life at th e other end w ith an othe r-tha nhonorable discharge.
248

TH E EFFECTS OF BAD DISCHARGES

The effects of such discharges are becoming well known. Of the four otlierthan-honorable discharges—General, Undesirable, Bad Conduct, and Dishonorable—the last three, for all intents and purposes, bar the recipient from vete rans’ 

benefits. All four, according to a survey by Major Bradley Jones in the Military

Law Review, carry severe stigmas for employment.

To use the most common example, the Undesirable Discharge, one-third of all 

business employers surveyed automatically reject any applicant with a VD.

Three-fourths of them are influenced aga inst the can didate by it. The situation 

is similarly bad with the other discharges (slightly better for General, even 

worse for Bad Conduct and Dishonorable). Jones also found that with all bad 

discharges, most employers look beyond the discharge to determine the cause.

SPN CODES HE LP EMPLOYERS DISCRIMINA TE

Employers are aided in all this by a system of coties called the Separation 

Program Numbers (SPN) found on all official discharge pape rs (DD Form 214). 

The SPN Code identifies the reason for discharge (in the intere st of national 

security, alcoholism, apath y, unsanitary habits, drugs, conscientious objection, 

or being a “marginal producer’’ among scores of oth ers). SPN codes can tai nt 

even an Honorable Discharge. In fact, there are well over 100,000 Vietnam vets 

with “good” discharges, i.e., Honorable, who can be discriminated again st because 

SPN codes are readily available to employers. What most employers and most 

civilians don’t know is how these discharges are given.

DISCHARGE METHO DS SHOC KIN G

General and Undesirable Discharges are award ed adm inistratively, without trial, while Bad Conduct and Dishonorable Discharges are adjudged punitively 

as a result of court-martial. In eith er case the methods used are shocking.

Adm inistrative discharges can be given in lieu of court-martial, or for generally unsa tisfactory perform ance. They are awarded by a board of officers 

without the procedural rights and protections of a trial, or, as is often the case, 

they are awarded when the service member has waived his rights to even such 

an unsa tisfa ctory hearing. The reasons for such discharges include bed-wetting, 

apathy, obesity, cha racter disorders, financial irresp onsibility, homosexual tendencies, and a host of oth er vague reasons—including, in most branches, “for 

other good and sufficient, reasons.”

In the climate of dissent over Vietnam, it is not surp rising th at the discharge 

system has l>een grossly abused. Commanders have had little difficulty in bran ding protestors for life with adm inistrative discharges. Often a commander will 

threaten a GI with the severe penalties of a court-martial, but, knowing he cannot get a conviction, will generously offer a laid discharge instead. Most return ing 

AWOLs see the receipt of a UI) in lieu of court-martial as the best of several bad 

alte rnative s, and, desperate to sep arate themselves from the war and the military, grasp a t it ra the r than attempt a defense.

The situ atio n is not much better with courts-martial. The vast majority of 

convictions during the Vietnam era were for the crime of AWOL. Another 10 

percent or so were for disobedience of various kinds. Very few were for ordinary 

“crim inal” behavior.

These procedures not only help the military to get rid of dissenters, they help 

hide the extent of anti-war activ ity. A bad discharge for “apathy” o r “character 

diso rders” or a conviction for “refusing orders” or “disrespect to a superior 

officer” looks a lot better in the statistics than “discharged as anti-war protester.”

REVIEW PROCEDURES INADEQUATE

Given the war in Vietnam, the abuses of military justice, and the military 

discharge system, some relief for the victims of these injustices must be found. 

The current method of discharge review through a Board in Washington, D.C. 

is simply unsatisfactory. Since the inception of the Army Discharge Review 

Board in 1944, for example, only 14,860 of 94,700 cases, or 15.7%, have been 

upgraded to General or Honorable Discharges. And, to quote the DOD Rei>ort on 

Military Justice aga in:

The data collected from the Discharge Review Boards and the Boards for 

the Correction of Military/N aval Records d urin g the first q uarter of calendar
249

yea r 1972 reflect a noticeable difference in the incidence of relief gran ted 

to white over black applic ants.

The process of review is lengthy, is unlikely to lead real istic ally to discharge 

upgrading for all but the best prep ared cases, and once again reflects a bias in 

favor of those best able to avail themselve s of counseling, legal aid, and most 

likely to have any f aith whatso ever in such procedures.

Given the unprecedented division in this coun try over the Indochin a War, the 

lack of adeq uate provisions for discharg e of those opposed to the war and the 

mil itar y—all at a time when most Americans were not called to serve—and given 

systematic injustice s in mili tary training, justice, and discharg es, it would a ppea r 

that the only just and equitable solution to the legal and social difficulties of 

these men and women is a univ ersa l and uncon ditional amnesty . This is the position of CCCO, as well as the more than 50 groups th at make up the National 

Council for Universal and Unconditional Amnesty on whose Steeri ng Committee 

I serve.

UNIVER SAL, UNCON DITIONAL AM NE STY IS SOLUT ION

By unive rsal, I mean all catego ries of citizen s who have come into legal difficultie s because of actions stemming dire ctly or indirectl y from thei r opposition 

to the Indochina War. For the mili tary , this means anne sty for all AWOLs and 

dese rter s curr entl y at large, the release from stockades and prisons of those 

convicted of m ilita ry crimes during the Vietnam era. and the auto matic upgrading 

of all other-than-li onorable disch arges from the Vietnam period.

By uncon ditional is meant simply tha t. Certainly any form of case-by-case 

review will be lite rall y impossible given the immense n umbers involved. Nor could 

such a system, however reasonably proposed, finally provide justic e. As in the 

case of the 1947 Trum an Amnesty Board, those who would benefit would be those 

best represe nted, best able to art icu late the ir reasons for breaking the law, and 

whose reasons made the most sense to whoever would sit on such a panel.

In short , case-by-case review, which proved inade quate for the dra ft, and inadeq uate for mil itary discharges, is bound to repeat the class and race bias of 

the d raf t, the military, a nd the 1947 Amnesty Board.

W IIA T ABOUT VIOL ENCE?

I would like to add some comments on non-violent and violent resis tance to the 

war in Indochina. By and large the opposition to this war was carried out nonviolently. Incredibly so, given the failure of tra dition al forms of politica l action 

and lawf ul dissen t to bring a quick end to a wa r whose cri min ality and bar bar ity 

seems to me beyond question to all who d are to look a t the facts.

Many members of Congress supported th at war, and of those who did not, I do 

not know of a single one publicly committed to pacifism or a life of non-violence. 

All of you would be rejected as conscientious objectors by your local dr af t board 

or by the mili tary , And yet, when it comes to the question of amnesty , one would 

thin k th at the Congress was peopled by the ghosts of Mahatma Gandhi. Yes, we 

can und erstand c erta in acts ag ainst the war, but not violence. . . .

Let me sta te my point bluntly. If you are committed to non-violence, you will 

suppo rt amnesty . If you recognize violence as a sometimes necessary, if tragic, 

part of huma n life, you must weigh the minimal violence of those who opposed 

the war to the war itself—against sat ura tio n bombing of churches, hospitals, 

schools, ha mlet s; the wanton dest ruct ion of forced urbanization , of free fire 

zones and hara ssment and interdic tion fire; aga inst napalm, phosphorous, an tipersonnel mines ,bombs and bom blet s; and aga ins t the conventional violence of 

jets, arti llery, auto mati c weapons, yes—My Lai. And you must keep in mind the 

violence at home—the Kent States, the police riots, the provocateurs , the Huston 

Plan, the campaign against th e New Left.

You must weigh your response, too, as a non-pacifist, if you were dra fted and 

ordered to Vietnam, a wa r you deeply despised. I would suggest th at many of you 

would have been AWOL, or would hold bad discharges, or if you were thw arte d 

and desp erate enough might have stru ck out at your serg eant or command er 

or att emp ted to stop the w ar through some act of sabotage.

I say these things, not to shock, but to try to gain some sort of perspective. 

Previou s amnesties in the United Stat es and elsewhere have oblitera ted offenses 

up to and including armed reliellion and treaso n. Shall we give an amnesty to a 

man whose application for conscientious objector discharg e was turned down 

and who then refused orders, or went AWOL, but not, say, to a black man who

31 -658 —74----- 18
250

could no longer stand the racial abuse of a drill sergeant, assaulted him, and 

then went AWOL?

The Vietnam War has put many Americans in impossible situa tion s and created 

violence beyond im agination in Indochina. The list of those responsible for that 

violence and who are still at large is long and prominent. I need not bore you 

here with a recitation of the names of those responsible for the destruction of 

Vietnam. These men, I am afraid, have their amnesty. The Americans who 

opposed them, even sometimes with violence, need their amnesty, too.

CURRENT BILLS UNSATISFA CTO RY

Of the bills before this Subcommittee, none is satisfactory. II.R. 236 and II.R. 

3100, however, submitted by Representatives Abzug and Dellums, come closest 

to providing justice to those who opposed the war. They have wisely included 

AWOL, desertion, missing movement, and various forms of counseling and aiding 

desertion or disloyalty in the list of offenses to receive automatic general 

amnesty. There are several glaring omissions, however. The most obvious being 

refusal of orders, disrespect, conduct unbecoming an officer, and all oth er acts 

prejudicial to good order and discipline. And there are other violations which 

must lie included if those who opposed the war are to receive an amnesty. Additionally, this bill only provides for the automatic u pgrading of discharges which 

stem from the listed offenses. (liven the nature of ad min istrativ e discharges, and 

the wide range of actions that GIs opposed to the war took to get themselves 

removed from the Armed Forces, this provision will not do. How can the holder of 

a discharge for drug abuse, or apath y, ever convince a commission as described 

in this bill that his actions were dictated by opposition to the war and that his 

discharge is a consequence of th at opposition?

It is practically impossible. The same is true for all other violations to lie 

reviewed by the Commission described in the bill. The burden of proof is on the 

individual Who must show th at his actions flow from a deeply held ethical or 

moral belief. Having worked with CCCO, I have some fam iliarity with the 

Pando ra’s Box of deeply held ethical or moral beliefs. The man who, with the 

help of lawyers and counselors, can calmly and articulate ly describe why his 

acts flowed, say, from the English concept of natural rights, or from Fletcher’s 

rela tivistic ethics, will get his amnesty. The man who threw a wrench into his 

ship’s engine, or who tu rned to drugs to escape the horror of the war, will not.

There is no end to this kind of weighing and sorting, and it is bound to discrim inate aga inst the least for tun ate amongst a group that has already suffered disproportionately. No one fully understands the complexity of human motivation, 

but we do know that young Americans are still suffering because of a war th at 

they did not make or choose, and which they could only escape—if they were not 

affluent or educated or influential or articulate enough—through often desperate 

means.

AMNESTY NEED URGENT, JU ST IC E OVERDUE

It is time, indeed, it is past time, to undo these injustices. It is within the 

power of the Congress of the United States to declare a tru e univ ersal and 

unconditional amnesty for all those who suffer because of their opposition to the 

Indochina War. I urge you to declare such an amnesty and to act swiftly. The 

hour is late. Most Americans, except the victims, both living and dead, of this 

war, have returned to more prosaic concerns. Their lives go on, for better or 

worse, unfe ttered by events in Indochina. But for those not-so-young Americans 

who resisted the war, each month that passes weighs heavily. As I conclude, the 

image of Richard Bucklin, imprisoned at Ft. Leavenworth, and nearly a million 

like him, reenters my mind. The need for amnesty is real and it is ur ge nt ; it is 

not simply a ma tter of dispassionate debate. Dick Bucklin and all the others must 

be freed if this nation is to struggle back toward justice and humanity. Otherwise, what can any decent and humane person say about America who looks and 

sees who it is who is behind bars, and who it is who walks the streets?
251

DEPARTMENT OF DEFENSE-INCID ENTS OF D ESERTION. FIS CAL YEARS 1959 THROUGH 1972

Arm y Navy Marines A ir Force

(J uly 1- Sep t. 30,1 971) (J uly 1 Nov. 30,1 971) (J uly 1-D ec. 31, 1971) (J uly 1-De c. 31, 1971)

Fiscal

ye ar

Num be r 

dropped 

fro m unit 

role

Num be r 

re turn ed to 

m ilitary 

co ntrol

Nu mbe r 

dropped 

fro m unit 

role

Num be r 

re turn ed to 

m ilitary 

co nt ro l

Num be r 

dropped 

from unit 

role

Nu mbe r 

re turn ed to 

m ilitary 

co ntrol

Num ber 

drop pe d 

from unit 

role

Num be r 

re tu rn ed to 

m ilitary 

cont ro l

1959............. 5,98 7 4,80 8 4,0 87 4,01 9 2,20 6 2,0 54 1,3 03 1,2 92

1960............. 6, 777 5, 966 2,667 2,60 6 2,17 6 2,20 9 730 719

1961............. 7, 982 6,32 8 3, 536 3, 353 2,659 2,63 8 503 496

1962............. 10, 407 8. 293 3,31 8 3, 199 3,02 2 2,84 9 693 690

196 3............. 12,231 9, 923 3,8 11 3,664 3,2 11 3,1 95 551 547

1964............. 11,517 10,17 8 3,6 23 3,47 0 3, 078 3, 023 461 458

196 5............. 13, 177 10,383 3, 928 3, 759 3,23 3 3,10 6 328 328

196 6............. 14, 244 12,401 5, 745 5,1 21 3, 263 2,90 8 295 292

1967............. 26, 782 20, 620 6,41 6 6,2 71 6,8 41 6,11 2 375 359

196 8............. 39, 234 24,109 5,6 21 5, 508 8,41 9 7,44 8 393 374

1969............. 56, 608 22, 375 4,8 97 4,661 11,587 9, 875 538 357

1970............. 65, 643 32, 536 6,35 2 5,77 3 16,10 9 13, 499 984 772

1971............. 79, 027 48,481 6,06 3 6,328 11,852 11,85 3 1,1 17 1,0 70

1972............. 12, 860 10,46 2 2,11 5 2,41 2 5, 985 6, 041 1,0 73 1,031

No te: Deserters “ at l a rg e ":

Arm y (as of Jan. 1 8 ,1 9 7 2 )..................................................................................................................................................... 22 ,300

Na vy (as of Nov. 30,1 971).............................................................................................................................................. 1,61 5

USMC (as of Dec. 31, 1971)........ ................................................................ .............. .......................................................... 5,40 1

USAF (as of Dec. 31,1 971)......................................... ............................................................................................................ 576

T ota l............................................................................................................................................................................................ 29 ,892

Mr. Musil. I want to save some time for Mr. Mott. Jeremy Mott is 

the midwestern secretary of tlie Central (omm ittee for Conscientious 

Objectors, and himself has been convicted of draft resistance.

Mr. Mott. Yes; I would like to make a few remarks about the problems of the civilian dra ft refusers, those who were convicted in the 

civilian courts. I do not want to go through things tha t people have 

gone through before. But I want to point out some things in my own 

statement tha t I think are not generally known and which I think 

might be of interest to the members of the committee and to others.

First of all, we have learned in counseling that there are a good 

number of people who are in hiding or in exile needlessly. There are 

probably several thousand at least, dra ft refusers, who had good legal 

defenses and the Government decided not to prosecute them, but these 

men have never been told that. And they are still in exile or in hiding, 

and it just strikes me as a minimal step tha t the Government should 

be required to tell by registered mail all the men and their families 

who they have declined to prosecute over these last 12 years or so.

Another situation tha t 1 think is generally not so known is some 

of the disabilities tha t a conviction for draft refusal causes. The disabilities of being in prison are obvious. The disabilities of being on 

probation are obvious too, although less severe. But there are many 

disabilities tha t a convicted d raf t refuser has in his own life, because 

he has a felony conviction, and depending on State law he will lose 

many of his civil rights. He usually cannot vote, he cannot hold public 

office, and in many States he cannot be licensed for most of the jobs
which th e Sta tes licenses, and he can not ho ld a d riv er's license in some 

Sta tes, includ ing Massachusetts. li e cannot be an ex ecutor or gu ardian 

under a will in some States. He can not adopt a child in some States. 

An d ap pa rently he can not own real estate in some Sta tes. It is tru e 

th at some of these thing s are not enforced . Bu t many of them are.

So we a re sentencing convicted dra ft re fuser s to a l ifetim e of th ird - 

class citizen ship as convicted felons. And th at is new, th at is something th at has happene d in this cen tury, but not in pr io r centuries in 

our his tor y. In the 18th centu ry and the 19th centu ry, both in the 

Colonies befo re the Rev olution and in this country du ring the Revolut ion , and af te r the Rev olution rig ht throug h the Civil War, conscientious obje ctors were pra cti cally always convicted by pe tty courts, 

usu ally by court s-m art ial, and whatever th e pen alties, altho ug h sometimes severe, the y did not las t a long time, and they did not have the 

perm anent life tim e disabi lities that a felony conviction has. An d by 

now, from 1940 to the pre sen t time, we would have by my estimate, 

24,000 men who have been convicted and who have not been pardo ned 

or have no t won on app eal, and have a lifetime in fron t of them as 

felons with very many of the rig hts of citizensh ip tak en away from 

them .

An othe r thing th at I would like to point out is some of the special 

problems affecting men in exile th at are not as well know n as they 

migh t be. Th is also is in the statem ent. Several of the amnesty bills 

th at are now being conside red would restore U.S . citizen ship to those 

exiles who have give n it up, if they wa nt it back. Now, this is righ t 

and pro per. Those who have become foreign citizens should be able 

to get their U.S. citizensh ip back if they wish to. Bu t there are man y 

who hav e become Ca nadia n citizens o r citizens of other cou ntries who 

wou ld not wish to get th eir U.S . citizen ship back because they have 

forme d permane nt fam ilie s and the y have fou nd perm anent homes in 

these oth er countries. Un der our presen t Im migratio n Ac t any alien 

who lef t the Un ited State s to avo id military service cannot legally 

enter the Un ite d Sta tes, not for any purpose. Th e U.S . Government 

is allowed to give th at admissibility, bu t only fo r short -te rm and 

tempo rary visi ts and visas. An y full amn esty mu st include a repeal 

of this section, section 212(a ) (22) of the Im migratio n Act, so th at 

those men who have become foreig n citizens can at lea st vis it the 

I Jnited States on t he same basis as o the r aliens.

We have fou nd th at most men who became Ca nadians do not even 

know th at they are causing themselves these kin ds o f problems under 

Am erican law when the y became Ca nadia n citizens or wh ate ver they 

became. The y are not even aw are th at they are ma kin g it illeg al for 

them selves ever to set foo t in the country aga in. An d, of course, th at 

does no t stop the d ra ft prosecution.

Th e last coup le o f thin gs I would like to point out are on these questions of conditional amn esty and case-by-case amne sty. Th e conditiona l 

amnesty ju st does not work. Most men have gone throug h too much 

punis hm ent, they have e ith er done alt ern ate service alr eady as a condit ion of pro bat ion , o r the y hav e been in prison , o r the y have been in 

exile, and the y are n ot goi ng to do alternate service fo r many years. 

The y hav e had enough punis hm ent witho ut go in^ throug h any more. 

An d I would note th at conscientious objectors in Britain were not 

req uir ed to perfo rm alt erna te service. If a m an in Brita in co uld show
253

th at lie was conscientiously oppo sed to pe rfo rm ing alternate service 

he did not have to do So, he was exempted altogeth er. It would not be 

a first to allow conscientious objectors to go witho ut doing alt erna te 

service.

On the question of the casc-by-case amn esty , the re the situatio n is 

even c learer. Basically , t ha t has been tri ed and failed. Th at is b asic ally 

wh at the dra ft board s and courts are doing when they con sider conscientious objector cases. Is th is man rea lly a conscientious objector or 

is he not? Most are recognized . A gr ea t many are not. Th ere is some 

incredible legal laby rin th affe ctin g c onscientious obje ctors when t he ir 

cases get to co urt , and there is a whole series of t ra ps wh ich affect conscientious objecto rs in the Selective Service System. I have outline d 

several of these in the state ment. An d most men are jus t n ot willin g to 

give the U.S . Government a second or even a th ird chance to slander 

them an d to call them insincere o r disloyal or worse.

The tale s t hat one could tell o f wh at dra ft boards hav e done are ju st 

ama zing. Bu t to give you an example, I know of many dra ft board s 

which had a policy of one co nscientious obje cto r’s exem ptio n pe r family, and th at once the first son had gotten a conscientious objector 

exemption , nobody else in th at fa mi ly c ould get one.

The final th in g I would like to say is th at th ere ha s been a good deal 

of research into the Tr um an Li brary into the reco rds of the Tr um an 

Am nesty Bo ard th at gran ted a very lim ited amnesty in 1947. And 

those records go to show th at most of the men who the Am nesty Bo ard 

wou ld not recom mend for pardo n because these men sup pos edly had 

serio us criminal reco rds—most o f these men had only been arr ested or 

even charg ed witho ut being arr est ed, and th at most of these serious 

offenders were variou s m ino r a nd tech nica l vio lations of the dra ft law. 

Th ey were offenses like not fillin g out que stio nnaires, or n ot going to a 

phy sical, and thing s like this. Now, these th ings are tech nica l felonies, 

but. of course, most of the men who refuse d military service or civ ilia n 

service du rin g World W ar II , these men, of course, were very likely 

to have com mitted some tech nica l vio lati on of the dra ft law earlie r, 

and it is ju st a disgr ace th at so many o f these men were denie d pa rdo ns, 

denied amnesty af te r World W ar II . because in addit ion to ref using 

to servo they ha d maybe not filled out a q ues tionnaire or did no t go to 

a physical exa mination.

[Mr. M ott ’s sta tem ent foll ows:]

Stateme nt P repared by J eremy Mott of tii e Centra l Com mittee for

Con sc ient ious Objectors

My name is Jeremy Mott. I am Midwest Secretary of the Central Committee 

for Conscientious Objectors. I have been a dr af t counselor for seven years, and 

editor of the CCCO Draft Counselor’s N ewsletter for four years. One pa rt of our 

work a t CCCO is reviewing the draft files of men facing prosecution for Selective 

Service violations, in an atte mpt to discover strong legal defenses which may 

lead to acq uittal or dismissal. I have reviewed more tha n 200 draft files for 

draft refusers awaiting tri al in the United State s, as well as doing more tha n 

100 file checks for draft refu sers in exile. In addition, I am a conscientious 

objector myself. I was sentenced to five years ’ imprisonment, and spent more 

than 1G months in prison, for refusal to perform alt ernate service. So ano ther 

important part of my work is counseling conscientious objectors in prison, on 

parole, on probation, or in altern ate service. I am gratefu l to you for having 

asked me to speak about the need for amnesty for civilian draft refusers.

Please keep in mind th at I supp ort a general amnesty for all war resisters,
254

including those who are punished by milita ry law as well as those facing civilian 

punishment. However, my personal experience and knowledge is limited largely 

to the problems of civilian dr aft refusers; so these men’s needs is my subject.

According to statistics published by the Adm inistrative Office of the U.S. 

Courts, 7728 men were convicted and sentenced for Selective Service violations 

during the nine years from fiscal year 1905 through fiscal year 1973—from the 

escalation of the Vietnam war until the end of inductions. Several hundred draft 

refu sers will be sentenced during fiscal year 1974, and still more will surely be 

sentenced in lat er years unless amne sty is proclaimed. 3826 of the 7728 men 

were sentenced to prison. 3853 men were sentenced to probation, normally conditioned on iierformance of two or more years’ civilian altern ate service. 49 men 

were simply fined, or given token sentences.

In addition to the approximately 8000 d raft refusers convicted and sentenced 

during the Vietnam war years, there are a few dr aft refu sers whose cases a re in 

cou rt now, and there are many dr aft refusers who have not yet been brought to 

court. The Justice Department reported to Congress th at in February, 1972, 

indictments or arre st warra nts were outstanding aga inst 4201 so-called “fugitive” 

dr aft refusers, most of whom are in Canada or other foreign countries. It is 

prac tically certain th at several hundred additional fugitive warra nts have been 

issued during the past two years. Furtherm ore, sometimes an exile’s indictment 

or wa rra nt is never placed on the court’s fugitive calen dar. Thus there may 

possibly be several hundred or even thousands of exiled dr aft refusers under 

indictment or warrant, who are not included among the 4201 reported by the 

Justice Department. 5000 is a minimum estimate of the total number of exiles 

from Selective Service p rosecu tions; the actu al figure may possibly be as high as 

10,000 or even higher.

Of course the figures given above do not include AWOL m ilita ry personnel in 

exile. Nor do the figures above include the numerous dr aft refusers who a re in 

exile even though the Justice Departm ent has decided not to prosecute them. 

Most of these “needless exiles” have never been told th at they have won their 

cases, and do not know th at they may return scot-free to the United States if 

they wish. Surely, Congress should ins truct the Justice Departm ent and the 

Selective Service System that they must share the good news with every draft 

refu ser whom they decided not to prosecute during the past decade. The letters 

should be sent by registered mail, both to the men and to the ir families. If this 

is not done, thousands of men will remain in exile or in hiding, for no legal 

reason whatever.

Who are these thousands of draft refusers who have been convicted or exiled 

during the Vietnam war years? They come from every part of the United State s, 

as the courts' figures show. All races are represented among them. Many draft 

refusers are po or: a few are ri ch ; most would best be descibed as middle-class. 

As for religion, though a great many American dr aft refu sers are Jehovah's 

Witnesses, one may find members of every religious group—and of no religion— 

among the men sentenced for Selective Service violations during recent years. A 

survey of imprisoned draft refusers, done by the Prison Visitation Service, shows 

Roman Catholics, Quakers, Methodists, Lutherans, Mennonites, Brethren. Jews. 

Greek Orthodox, Presbyterians. Baptists, and members of a long list of other 

religious groups, as well as a large number without religions affiliations.

What does this diverse group of men have in common? Almost the only accurate 

generalization is t ha t most dr aft refusers are conscientious objectors. This sta tement may surprise you. for it is well known that the Military Selective Service 

Act provides for exemption of conscientious objectors from military service. Why. 

then, have many thousands of conscientious objectors been convicted of draft 

refusa l or exiled durin g recent years?

The re are several reasons. First, the draft Act’s narrow provisions exclude 

many conscientious objectors from legal recognition. To gain exemption under 

the Act, a conscientious objector must show that he will not take part in “war 

in any form.” In oth er words, he must refuse to tak e pa rt in all war. Many 

conscientious objectors—the so-called “selective objectors”—are willing to take 

pa rt in certain wars which they believe to be just. No ma tte r how sincere a 

selective objector may be, no ma tter how firmly his church may teach a doctrine 

th at some wars are ju st and other wars unjust, Selective Service may not and 

will not exempt him. Surely, selective objection is the standa rd American ethic 

concerning participation in war. Only a small minority of Americans are conscientious objectors to participation in all war. Yet hund reds and hundreds of 

selective objectors have been sentenced to prison or exiled during recent years.
zao

These men’s actua l “crime” is that they have n ot lied and said they were pacifist 

conscientious objectors, hut instead have lived by the political ethic which they 

and most Americans profess. How can anyone justify puni shing selectiv e objection as a felony, th us denying civil righ ts to these men for the res t o f the ir lives?

Second, many conscientious objectors, even if gran ted exemption from mili tary 

service, cann ot in good conscience i»erform civ ilian alt ern ate service. These men 

often believe th at not becoming a soldier is the ir moral right, even their religious 

duty. Such “non-coo perators” will not pay any fee, nor make any payment of 

altern ate service or othe r labor, for legal permission to live by the ir beliefs. To 

a non-cooi>erator, to perform alt ern ate sevice would be to acquiesce in the notion 

th at conscientious objection is a privilege granted by th e government, rather than 

an inalie nable human right. Further mor e, many non-coop erators believe th at a 

conscientious objector who perfo rms alter na te service encourages oth er men to 

become soldiers and helps mil itar y conscr iption to do its deadly work. Most no ncooperators are happy to perfo rm civilia n huma nit ari an work—provided tha t 

the work is not imposed as a sub stit ute for mil itary service. Yet thou sands of 

these men have been imprisoned or placed on proba tion—with the resu lt th at 

they are convicted felons and many human-service occupatio ns are fo rever closed 

to them. How can anyone jus tify this absu rdi ty?

In prep arin g amnesty legisla tion, Congress should care fully consider the fac t 

th at thou sand s of dr af t refu sers are conscientious non-cooperators. Any socalled “conditional amne sty,” if condition ed on performa nce of alt erate service, 

will be rejec ted out of h and by these men. And the re can be li ttle doubt t ha t most 

othe r dr af t refu sers would join the non-coop erators in reje cting a conditional 

amne sty—on the very pra ctic al g round th at prison, prob atio nary alte rnate service, 

or exile has been punis hmen t enough and more. To be useful, amnesty must be 

gra nte d with out any punitive conditions whatever.

Third—and the most imp ortant reason why thou sand s of conscientious objectors are convicted or exiled—each year Selective Service denies recognition 

to huge numbers of conscientious objectors, even though they are opposed to 

par tici pat ion in all war, and even though they are willing to perform altern ate 

service. Many thou sand s of these conscientious objectors refus ed induction du ring the Vietnam war years. The Jus tice Dep artm ent decided not to prosecute 

some of th em ; but most were prosecuted. A few of these men have won a cqu ittal 

or dismissal when the ir cases came to co urt. However, the archaic, terr ibly har sh 

laws and precedents which govern conscientious objec tor cases in the cour ts 

ensure the conviction of most “unsuccessf ul coop erato rs” who seek vindica tion.

For example, if a conscientious objector first pres ents his CO claim to the 

dr af t board af ter he has been ordered to rep ort for induction, his CO claim is 

worthless as a legal defense. (See Ehlert v. U.S. Sup.Ct., 1971, 402 U.S. 99.) 

This will normally be tru e even if the dra ft-b oard clerk told him to wait unti l 

his induc tion order came before filing his CO claim. Since the man usually 

cann ot prove th at the clerk thu s misled him, he will be convicted and sentenced 

in cou rt as a felon—all for following the advice of the Selective Service Syste m!

For ano ther instance of the series of tra ps which a conscientious objector must 

avoid if he wishes to have a worth while legal defense, consider the judicial 

doctrine of “exhaustio n of adm inistrativ e remedie s.” As this doctrine is applied 

in dr af t cases, a CO normally will not be allowed to pres ent his defense in court 

unless he has appeale d within the Selective Service System to the sta te appeal 

board. After the local board has issued a 1-A card, the re is a 15-day deadline 

for requesting an appeal to the sta te board. Thu s a man away from home on a 

bri ef vacation, who cannot reply to his mail, may lose not only his rig ht of appeal 

but also an oppo rtunity for presentin g a legal defense in court. Between 1966 

and 1971, most sta te appeal board s almos t never gra nted conscientious objector 

exemptions. Many appeal boards based their decisions on secre t rdsumGs ra th er 

than dr af t files; many appeal board s spen t less tha n a minute deciding each 

case before them. Nevertheless, the court normally will summarily convict a man 

who faile d to use the useless procedu re of appea l to the sta te board. The actu al 

“crime,” for which such a man becomes a third -cla ss citizen, is his fai lur e to go 

through a star-cha mbe r proceedin g which would deny his claim in closed session 

on the basis o f sec ret evidence.

Durin g the years 1969 throu gh 1971, when dr af t cases flooded into the fede ral 

courts, sever al of the harsh est legal doctrines affecting conscientious objec tors 

were made less stri nge nt by concerned, knowledgeable judges. Now th at the 

dr af t and its inequities have faded from public and judi cial concern, however, 

such old vindicitive precedents as “exhau stion of adm inistrative remedies” are
256

return ing as strong as ever, if not stronger. For example, in U.S. v. Bush (CAT 1973, 6 SSLR 3133), the Seventh Circuit Court of Appeals upheld the conviction 

of a conscientious objector who did exercise his appeal righ ts in a fruitless effort 

to gain the CO exemption guaranteed by statute. What was the basis for the 

Bush decision? Two years before he finally lost his 2-S student deferment, 

Donald Bush was classified 1-A when out of school for a brief period—and he 

did not appeal for CO exemption at that time, since he was about to get his 2-S 

back. The Court held th at Bush’s failu re to appeal in 1966, when he was briefly out of school, prohibited him from arguing in court th at Selective Service gave 

him the wrong classification in 1968—even though Bush did appeal in 1968.

Donald Bush has not yet gone to prison, apparently because the Supreme Court 

took an inte rest in his case and ordered the Seventh Circuit to reconsider. James 

Bjerkan, another recent victim of judicial disregard for the righ ts of conscience, 

is not so lucky. Bjerkan is in prison now, even though he is a conscientious objector who appealed to the Presiden tial appeal board, is qualified for exemption 

under the law, and is willing to perform altern ate service. In its semi-secret, 

unpublished opinion in U.S. v. Bjerkan (CAT No. 72-1301, 3 /9/73), the Seventh 

Circuit Court of Appeals upheld Bjerkan's conviction and the denial of CO 

exemption to him. The Court felt that Selective Service was justified in its refu sal 

to gra nt the CO exemption, partly because James Bjerkan had not appealed a 

1-S (C) student deferm ent which th e local board had given him one year before he 

filed his CO claim. Yet if Bjerkan had filed a CO claim and appealed a year early, 

the Selective Service System would have been legally required to give B jerkan a 

l-S(C ) classification anyway. Thus James Bjerkan is now in prison for the 

“crime’’ of failing to ask Selective Service to break the law and deny him a stu ­

dent deferment.

It is not tr ue that Bjerkan ’s willingness to accept the Congressionally-mandated 

l-S(C ) deferment was the majo r basis of the Court’s decision, however. Most of 

the Bjerkan opinion is devoted to a lengthy judicial finding that Bjerkan is 

“insincere,” partly because he filed his CO claim only a few months before his 

studen t deferments did finally expire, partly because though brought up a 

Lutheran his CO claim reflected ethical rathe r than strictly religious beliefs, 

partly because he became a teacher after majoring, in accounting in college. 

Bjerkan did not seek a 2-A occupational deferment for his teaching job; but the 

Court did not care about this a s it sought excuses to malign him. Unfortunately, 

cases like Bjerkan, in which the courts have sought the flimsiest of excuses to 

uphold Selective Service’s denial of CO exemption, are not at all unusual.

In writing amnesty legislation, Congress must take especial notice of the long 

and sorry history of judicial militarism and b ias against conscientious objectors, 

which has brought about the legal labyrinths touched on above and many more. 

Considering the usual fair-mindedness and independence displayed by the federal 

judicia ry in most kinds of cases, there is no reason to suppose that any other 

group would do a better job of recognizing conscientious objection. In fact, recent 

history shows that other groups usually do an even worse job of judging conscientious objectors. I am personally fam iliar with several instances where Selective Service boards adopted a policy of “one CO exemption per family,” and 

denied CO exemption to a man because his older brother or his twin brother had 

alre ady received CO exemption. Many draft boards granted CO exemption only 

to members of pacifist churches, such as Mennonites. Some dr aft boards granted 

CO exemption only to men who did not belong to pacifist churches. Some d raft 

boards gran ted CO exemption only to men who filed th eir claims at age 18. Some 

dr aft boards refused CO exemption to any man who insisted on affirming, rather 

tha n swearing, t ha t his testimony was true. Some dr af t boards refused CO exemption to any CO who explained that he would be morally obliged to refuse induction if classified 1-A. One could go on and on.

Still another group that was even more biased against conscientious objectors 

tha n the federal judiciary was Presiden t Tru man’s Amnesty Board, which pa rdoned only about 10% of those convicted of Selective Service violations during 

World War II. The Board pardoned almost no Jehovah’s Witnesses and very few 

noncooperators. And this Board heaped ignominy on itself an dtlie U.S. Government by falsely reporting that many World War II dr af t violators had serious 

criminal records ante dating the ir draft-refusal convictions. As the Board’s records 

have revealed, the tru th was that most World War II dr aft refusers had committed minor violations of draft laws before they refused to perform military or 

civilian service, but only a handful had ever been accused or convicted of any 

serious crime not related to the ir war resistance.
If only because all groups which judg e conscientious objectors tend to look 

for excuses for maligning and punishing conscientious objectors, a case-by-case 

amnesty is unworkable. Some conscientious objectors would refuse on principle 

to take the ir cases before any board or judge who was charged with sep arating 

“sincere” and "insin cere” war resisters. Many other men, already tau ght to 

distrust such selection procedures by the ir own mistreatmen t at the hands of 

draft boards and courts, would be unwilling to give the U.S. government ano ther 

chance to slander them. The huge cost of hiring a lawyer, the cost of trav el to 

hearings, and the red tape and endless paperwork would deter many potential 

beneficiaries from seeking amnesty through any case-by-case procedure. A useful 

amnesty must be gran ted to all, with out any furth er disgraceful attempts to 

bran d some draft refusers as insincere, disloyal, or worse. A useful amnesty 

must be a general amnesty. The legal traps set for conscientious objectors who have filed CO claims and 

pursued appeal procedures are all as nothing compared to the fat e in court 

of a conscientious objector who has never presented his claim to the draft board. 

Very often, of course, the man faile d to file his claim because a Selective 

Service clerk or a draft-bo ard member told him that a CO claim would be 

of “no use,” that “only Quakers and Mennonites are eligible for exemption,” 

or some similar nonsense. Sometimes a man looked at the second question on 

the Special Form for Conscientious Objector—formerly this question was "Do

you believe in a Supreme Being ?_ Yes __Xo”—and decided that his unorthodox

religious views made him ineligible. Whatever the reason for a man's failure 

to present his CO claim to th e dr aft board, he should expect to be forbidden from 

raising his conscientious objection as a legal defense. Thousands of these 

conscientious objectors who have never filed claims have been convicted or exiled 

in recent years. For many of them, the actu al “crime” was a foolish tru st in 

the lies and misleading advice given them by government officials, or a naive 

lack of awareness concerning the deceptive purpose of form er versions of the 

Special Form for Conscientious Objector. IIow can anyone, knowing these things, 

oppose amnesty and thus sentence these men to a lifetime as felons or exiles?

Some may dispute CCCO's conclusion that most of the men convicted and 

sentenced for dr aft refusal in recent years are conscientious objectors. True, 

some dr aft violators will not call themselves conscientious objectors. However, 

if one asks these men why they refused to be soldiers, most will reply by explaining the ir ethical, religious, or political opposition to the Vietnam wa r or to war 

in general. In the federal prisons, all Selective Service violators (except 

Jeho vah’s Witnesses) are universally called “conscientious objectors” or “COs,” 

by other prisoners and staff alike. This label “conscientious objector” certa inly 

does not reflect the draft classifications held by most of these men, but it does 

reflect the true reason for the ir imprisonment.

Some will point out that most dr aft refusers had mixed motives for the ir 

ac tio ns : they wished to avoid being killed, as well as to avoid killing. We agr ee ; 

this is true. Yet we m ust point out that practically everyone has mixed motives— 

including practically every man of military age during the Vietnam war years. 

Unquestionably, many U.S. soldiers had misgivings during the Vietnam war 

ye ar s; many soldiers trie d to avoid both killin g and being killed.

And we must point out that deferments of many kinds were easily available 

throughou t the Vietnam war years. Millions and millions of men were deferred 

until over-age, whether as students, as teachers, as father s, as persons disqualified from military service (4—F or 1-Y ), or whatever. Most convicted 

and exiled dr aft refusers could have obtained and held deferments, if the ir sole 

motivation had been to save the ir own lives. However, as any experienced draft 

counselor knows, many conscientious objectors and draft refusers deliberately 

spurned available refermeiVs, so that they might better oppose conscription, 

war. and the Vietnam war.

If you still are not convinced that most of the convicted and exiled draft 

refusers are conscientious objectors, remember that practically all these men 

were repeatedly offered “amnesty” if they would join the military. Until June, 

1973, any draft violator facing prosecution could expect to be offered a de al : if 

he would enlist or accept induction, the Selective Service prosecution would be 

dropped. As the courts’ figures on dismissed indictme nts show, thousands of 

men accepted such deals and joined the military after they had been indicted for 

Selective Service violations. It is probable that an even larger number of men 

accepted such deals before they were indicted, in some insta nces even before 

they were arre sted. Those draft refusers who were eventually convicted or
258

exiled had all rejected these informal “amnesty in return for military service” 

arrangements. What evidence could better show tha t these men are conscientious 

objectors?

While working on an amnesty for Vietnam-era dr aft refusers, Congress should 

take care to include another, often overlooked group of men w ho need am nesty : 

the men convicted and sentenced for draft refusal in the years before the escalation of the Vietnam war. These men, too, are almost all conscientious objectors; 

and they got into trouble with the draft law’ for reasons quite similar to those 

which brought the Vietnam-era refusers into the courts. Between 1948 and 1964, 

according to the federal courts’ statistics, 4328 dr af t refu sers were convicted 

and sentenced. About 17,800 d raft refusers were convicted during the World War 

II years, from 1940 to 1947. Only about 3000 of the World Wa r II violators, and 

almost none of the post-World War II violators, have been pardoned. Thus 

about 24,000 draft refusers convicted from 1940 to the present time are still 

w ithou t the usual righ ts of citizenship. This situ atio n is a disgrace to our nation. 

Most European countries amnestied the ir World War II draft refusers immediately after the war. Fran ce amnestied its conscientious objectors and deserters 

of the Algerian war by 19G6. It is high time for the United States to clea r up its 

huge backlog of political and religious “crimin als” by amnestying all its draft 

violators.

Wh at would an amnesty mean to the draft refusers? The group who would 

benefit, most from an amnesty, of course, are the 134 men now in prison for draft 

refusal, as well as the unknown number awaiting execution of the ir prison 

sentences. (The figure stated was furnished by the Federal Bureau of Prisons, 

and is accurate as of January 15, 1974.) A general amnesty would bring about 

these priso ners’ immediate release. Even a general commutation of prison sentences for draft refu sal—as was done in Australia in 1972—would be of great 

help to the prisoners and their families, as well as those facing probable imprisonment in the future.

I often counsel men who will soon surrender to serve their prison sentences. 

Usually the draft refuser’s wife takes pa rt in the conversations, and often the ir 

young child or children are present. Even for a calloused “old han d” like me, it 

is disturb ing to talk with a conscientious objector who may have refused induction in 1968 or even earlie r but faces imprisonment in 1974 or late r. Afte r all, 

the United States has been officially at peace for more tha n a year; all the 

American prisoners of war were released a year ago; inductions were ended a 

year ago ; tens of millions of Americans now agree with this man’s opposition 

to the Vietnam wa r: and the man would usually be willing to perform altern ate 

service, if allowed to do so. Yet he will soon be torn from his wife and children, 

and locked up under armed guard for a year or even two years, then released on 

parole to face life branded as a “con.” Of course he will do no real work, and 

earn no real wages, during his imprisonment, which will cost American taxpayers 

at least $5000 annually. Meanwhile his family will beg from friend s and relatives. 

In 1968, I was among more than 700 draft refusers in the federal prisons—but 

at least we knew then, even though we didn ’t approve, tha t our imprisonment was 

a small pa rt of an immense American war effort. What point does the imprisonment of conscientious objectors prove now? Is it simply a welcome op portunity 

for the U.S. government to practice cruel treatm ent of its citizens?

Nearly 2000 d raft refusers are now performing probatio nary altern ate service, 

while thousands more are serving ordinary probation and parole sentences. For 

all these men. an amnesty would mean the end of petty but burdensome restric ­

tions. such as the requirement th at one ask permission of a probation officer 

before traveling. For the conscientious objectors performing altern ate service as 

a condition of probation, an amnesty would also mean the end of immense personal and economic hardship in many cases. No longer would counselors have to 

help a probationer find two full-time jobs—one low-paying job to satisfy the 

alternate-service requirement, and another better-paying job to enable the man 

to sup port his famly and pay his law yer's bills.

Let me note in passing that an amnesty should include an opportunity for 

immediate discharge for those men who were drafted into the military and 

remain there. Also, an amnesty should include the immediate release of conscientious objectors performing alte rnate service under the orders of the Selective 

Service System. These simple bu t necessary actions were done in Austra lia in 

1972.

By fa r the largest group of dr aft refusers who need amnesty, however, are th e 

tens of thousands of men who have completed their prison or probation sentences
259

for Selective Service violations, but still suffer civil disabilitie s as convicted 

felons. It is true that a few of the <8000 d ra ft refusers convicted during the Vietnam era, as well as a very few of the earlier refusers, were sentenced under the 

Youth Corrections Act. This law expunges the ir felony records, when they have 

served the ir sentences. These men probably do not need amnesty, nor do those 

men whose convictions were reversed by appeals courts. Nevertheless, my estimate is that about 7,000 of the d raft refusers convicted in the Vietnam years, and 

17.000 or more of the refusers convicted earlier, will be felons un til they die unless 

amnestied.

A felon’s civil disabilities vary from sta te to state, depending on the vagaries 

of the state laws which define most civil rights. In almost all states, a felon may 

not vote or hold public office. In all but a few states, a felon may not be licensed 

for most of the many occupations which the state licenses. Thus, in many state s, 

a convicted dr aft refuser cannot be a schoolteacher.

Civil-service jobs are usually closed to felons. At lea st three sta tes will not 

license a felon to drive an automobile. According to legal reference books, in some 

states a felon may not own real estate, or adopt a child, or be a guardian or an 

executor under a will. Though some of these civil disabilities are widely ignored 

in practice, many a re enforced, and tlie l ist seems endless.

In some sta tes, a felon may apply to the governor for restoration of th e rights 

denied him by sta te law. However, some governors rarely grant such pe tition s; 

many states seem not to have such procedures; and nothing short of Presidential 

pardon or an amnesty will r esto re those rights denied by federal law. As a m atter 

of fact, some st ate laws specify that no pardon will restore cer tain rights. Only 

Congressional amnesty can resto re convicted dr aft refusers to full citizenship.

Perhaps as bad as or worse tha n the civil disabilities specified by law is the 

occupational discriminatio n which many convicted dr aft refusers discover. Even 

when no law forbids hiring a convicted d ra ft refuser, many employers will refuse 

to h ire him. Amnesty probably would alleviate this situ atio n, by setting a governmental example of fair trea tment which private employers would follow.

Perhaps some of you are wondering why this testimony conce ntrates so heavily 

on the problems which felony records cause for convicted dr af t refusers. After 

all, there have been only two amnesties for dr aft violators in American history : 

rhe general amnesty of World War I violators in 1933, and the partial amnesty 

of a few World War II violators in 1947. Thus you may suppose th at the Civil 

Wa r conscientious objectors, and the numerous conscientious objectors of the 

Revolutionary War and the French and Indian Wars, must somehow have managed to adjus t to their felony records. This supposition seems sensible, but i t is 

wrong.

Conscientious objection and dr aft refusal were not punished as felonies before 

World War I. Most Civil War conscientious objectors in the North were never 

pro secuted; President Lincoln busied himself pardoning and relea sing conscientious objectors throughout the war. Those Civil War objectors who were 

prosecuted were trie d by courts-m artial, in both North and South. Though the 

courts-m artia l occasionally imposed severe pena lties on conscientious objectors, 

these penalties apparen tly could not and did not include the civil disabilities 

of a felony conviction. Besides, the penalties imposed by Confederate courtsmartia l were legally erased when the Confederacy lost the Civil War.

During the Wa r of 1812, the Revolutionary War, and the French and Indian 

Wars, each state or colony had its own system of militia conscription. Conscientious objectors who refused to serve when the militia was called out for 

these wars, as well as conscientious objectors who would not drill with the 

militia in peacetime, were normally fined by petty courts. Usually the fines were 

heavy only in time of war. Many conscientious objectors refused to pay the 

militia fines. Seizure of proi>erty to satisfy the unpaid fine was the usual punishment imposed on these non-cooperators, though a few who refused to pay militia 

fines were imprisoned. It seems clear th at felony civil disabilities were first 

imposed on American conscientious objectors in the Twe ntieth Century. (Fo r an 

excellent detailed histo ry of early American conscientious objection, see Peter 

Brock’s Pacifism in the United States: From the Colonial Era to the First

World War.)

Las t but by no means least, of course, is the effect an amnesty would have 

on the so-called “fugitive” draft refusers. Though no one seems to know for 

sure how many “fugitive” draft refusers are under wa rra nt or indictment, it is 

clear that most of them are in exile, and in permanent exile. Even a general,
200

unconditional amnesty probably would not induce most exiled draft refusers to 

ret urn to the United States to live. After all, most draft-refus er exiles are doing 

quite well for themselves in Canada. Many of these men will surely be prominent in Canadian public affairs in coming years. By driving thousands of draft 

refusers and their families out of this country, the United States government 

has ensured that Canada will be less friendly to the United States than it has 

been in the past. This damage has now been done, and it probably is in large 

pa rt irreparable.

However, a general amnesty would bring one gre at benefit to the perm anent 

exiles, as well as their frien ds and relatives who remain in the United States. 

An amnesty would enable the exiles to visit freely in the United States, without 

subterfuge and without the ever-present risk of arrest. Only a few days ago, 

FB I agents arrested a draft refu ser named Allen Kelly at his father’s fune ral 

in Rock Island, Illinois, to which he had traveled from British Columbia. An 

amnesty would prevent the recurrence of such disgraceful events as this, as well 

as put an end to the border arre sts of draft refusers which now tak e place dozens 

of times each year. Also, an amnesty would stop the hum iliating delays and 

interrog ations and investigations now imposed on young Americans who are 

trying to re-enter the ir own country after traveling in Canada.

Furtherm ore, there are many exiles who do wish to return permanently to 

the United States, even though these men are a minority of all dr aft refu sers 

in exile. An amnesty can do nothing more imp orta nt tha n allowing the return 

of those exiles who do wish to re tu rn : the civil rights activist torn from his 

American Black community, the engineer and the musician who cannot find 

work in their chosen occupations in Canada, the only child who always wanted 

to join his father’s business in Chicago. Surely, it is in the inte rest of all Americans that these men come home, without furth er delay. Only a general amnesty 

can make this happen.

One major fault of all amnesty legislation so fa r proposed is the lack of proper 

provisions for the exp atriate dr af t refusers, the men who have given up the ir 

U.S. citizenship and have no desire to resume it. Section 212 (a) (22) of the Immigration and Nationality Act states that aliens may not legally enter the United 

States “who have departed from or who have remained outside the United States 

to avoid or evade training or service in the armed forces in a time of war or a 

period declared by the President to be a national emergency . . .”. The United 

States has been in a Presidentially declared sta te of national emergency continuously since 1950. Under the law just quoted, any Vietnam-era draft refuser 

who has been natu ralized as a Canadian citizen (or a citizen of any other 

foreign c ountry) will never be able to set foot legally in the United States again. 

Even if the man could win his draft case in court, even if he used legal means 

of avoiding the draft when he went to Canada, even if he is willing to serve a 

prison or probation sentence, a draft refuser who has become a Canadian citizen 

is subject to exclusion or deportatio n from the United States. The U.S. government has the power to waive an alien draft refuse r’s depo rtability under the 

Imm igration Act—but such waivers are rare ly if ever gran ted to Vietnam-era 

refusers, and waivers may be granted only to alien s seeking visas for temporary 

residence in the United States.

Of course, deportation proceedings under the Immigration Act do not prevent 

prosecution under the Selective Service Act. Thus most exiles who have become 

Cana dian citizens face both prosecution and deportatio n, should they ever be 

arr ested (or surren der ) within the United State s. Often an exile becomes a 

Cana dian citizen without even knowing that his naturalization means that he 

will never be able legally to enter his native land again. Repeal of the shameful 

provisions of Section 212(a) (22) of the Immigration and Nationality Act is an 

essential pa rt of any meaningful amnesty. Of course—as some amnesty bills now 

propose—those exiles who have given up their U.S. citizenship should be allowed 

to become U.S. citizens again if they wish to do so. But those exiles who wish to 

remain foreign citizens, and those who will become foreign citizens in the future, 

must be allowed to e nter the United States freely, under the same rules as other 

aliens.

Let me point out that th e Central Committee for Conscientious Objectors helped 

lead the unsuccessful campaigns for amnesty which followed World War II and 

the Korean War. We are continuing to work for amnesty now, when amnesty is 

needed more than ever before; and we hope that this time the amnesty campaign 

will be more successful. CCCO staff members serve on the steering committee of 

the Natio nal Council for Universal and Unconditional Amnesty. CCCO publica-
261

tions, such as News Notes, have explored the amnesty issue in depth. It is clear 

th at much of my work, and much of the work of several other CCCO staff members, would come to an end if amnesty were proclaimed—for our counseling services would no longer be needed by the Vietnam-era draft refusers a nd in-service 

resisters. However, this unemployment would be most welcome; for we would 

be freed to do more counseling with those men and women now in the military 

who are becoming conscientious objectors.

Let me close by asking a few questions, which I hope you—and all concerned 

Americans—will ponder while amnesty legislation is under consideration. Should 

any person be compelled by law to kill, and to risk being killed? Should any 

person be forced to take part in a wa r or join the military? Should someone be 

drafted, even if m ilita ry service may destroy his (or her) integrity, his (or her) 

life, or both inte grity and life? How can our natio n boast of its religious liberty, 

so long as the laws punish those who will not kill, without regard for the demands 

of conscience and religious teaching? How can our people ever solve its serious 

problems, so long as the laws prevent conscientious objectors from exercising 

the rights of citizens? Is the periodic sacrifice of our sons truly necessary for the 

health of our government and our society? I f so, and if we do make such a sacrifice once in each generation, Whom do we worship, Moloch, or God?

Mr. Kastenmeier. Does tha t complete your statement, Mr. Mott?

Mr. Mott. Yes.

Mr. Kastenmeier. Thank you both for your statements, Mr. Mott 

and Mr. Musil.

Someone raised the question before whether those men who were 

guilty of dra ft violations, and for one reason or another, had served 

in prison, would be now supporters of amnesty for others who had not 

gone to prison and paid that sort of penalty. What is your view, Mr. 

Mott, on that question?

Mr. Mott. Well, I did a prison term myself for conscientious objection. And one of the things that I would most like to see in American life is an amnesty for all those who refused to serve, both military 

and civilian violators. And I have known-----

Mr. Kastenmeier. Without discrimination to those who have already 

paid penalties?

Mr. Morr. Without any discrimination.

I have known scores of men who have gone to prison for dra ft 

refusal or for refusal in the service during these last 10 or 12 years. I 

know of only one who feels guilty about what he did. And I do not 

know any, I have never met one, who would not support an unconditional amnesty for all, both those who have already served some kind 

of sentence or other, and those who have not.

Mr. Kastenmeier. Would you both agree tha t up to the present 

time the general citizenry of the country has not been particularly 

affirmative with respect to at least general unconditional amnesty if 

any at all. In terms of the service of others in the Vietnam war, and 

generally, with the exacerbation due to the War in Vietnam, th at there 

has been a very strong climate against the forgetting that amnesty is 

supposed to represent ? What sort of view do you see ? What are you 

exposed to, from others ? From veterans’ organizations who are represented here and apparently represent the views of perhaps millions 

generally reflecting negative views with respect to amnesty. Do you 

not perceive this every day? Or do you see a change in attitude?

Mr. Morr. We see these attitudes against amnesty. But we see others 

too. I am a resident of Illinois. And Illinois had a new constitution a 

couple of years ago which restored almost all civil rights to people 

with felony convictions once their sentences were completed. And
262

afte r t h at c onstitution and law took effect se veral newspaper reporter s 

did some polls ask ing m any o f the large e mpl oyers in Chicago, would 

the y be w illi ng now to h ire som ebody who had a fe lony conviction for 

dra ft refusal ? Of course, usu ally the law had nev er prevented this, 

hut the re had been many employers who wou ld not hav e done so. A nd 

the y fou nd a gr ea t willing ness on the par t of most emp loyers to do 

this kind of hir ing.

An d the n they went to the various State licen sing b oards an d interviewed the various St ate licensing boards th at licen sed peop le fo r a 

whole myriad of o ccupations in Illino is, and sa id to the staffs of these 

lice nsing board s now th at you have the lega l power, if you wish , to 

license someone with a felony convict ion for conscientious obje ction, 

do you think th at y our board wou ld do so? An d at all bu t one of the 

Illino is license board s the s taff said, “Y es; we th ink th at we w ould.” 

As a m atter o f fact , one board th at licenses tea che rs s aid, sure, we have 

alr ead y licensed some teachers who have felony convictions fo r dra ft 

refusa l. Th e only lice nsin g b oard in the State h osp ital staff t ha t gave 

a negative response was th e one t hat licensed people in th e constru ctio n 

trad es.

Mr. M usil. Mr. Ch airma n, I would like to add a w ord to th at.

I may have to re ite rate som eth ing I said a lit tle bi t earlier. B ut there 

hav e been recent H ar ris polls, as you pro bab ly are awa re, whi ch 

showed a m ajority of t he A merica n public would be in favo r of a condit ion al amnesty and 30 per cen t would be in fav or of an uncon dition al 

amnesty. I think for the reasons there has been more amn esty symp athy , I refer back to my rem ark s abo ut the coo rdinat ed camp aig n on 

the p ar t of the a dm inist ratio n t o decrease the n um ber of d ra ft resister 

or deserters to cove r up th eir wa r policy. To claim th at it wa s a wa r 

with hon or. While Charles Colson or Pat Bu chanan could get an 

article in the Now Y ork Times th at s aid there were only 7,000 or 8,000 

involve d, I am reduced to w rit ing le tte rs to the editors.

Someone else in the hearing men tioned th at when the Presiden t 

sneezes he com man ds natio nal television. I am a novice at such he ar ­

ings. Th is is th e first congressional he aring I have ev er testified before. 

I have w ait ed for 10 years to get some thin gs off my min d. An d I feel 

very frus trat ed th at the re is no t a more ade qua te forum , with all due 

respect.

Mr. K astenmeier. You m ust say t hat the Presiden t h as commanded 

conside rable attentio n in our pa re nt comm ittee, the Ju di ci ar y Committee , lately .

Mr. Musil. A nd ju st to followup on th at, I th in k if pe ople keep in 

mi nd t hat i t was the likes of C har les Colson who branded deserters as 

ma lin gerer s and cowards and opportu nis ts, then the Am erican people 

will begin to see t hat it was a campaign by men w ho w ere dishonorable 

them selves try in g to cover the trac ks of th eir own policies.

I sti ll repe at the question, who was responsib le f or all of those desertions? For the rampa nt epidemics of spinal me nin gitis? For bea ting s 

in stoc kades? We have fou nd many men who were hanged by their 

wrists at Cam p Pen dleton . I th in k you rememb er Mike Wa llac e did 

some coverag e on th at on telev ision back in 1968, but we still see some 

people suf fering from the effects of th at kind of tre atm ent. I think 

eve ntu ally the Congress will hav e to inv estiga te the con duct of the 

entire A rm ed Forc es d ur in g the en tire V ietn am era. An d I th in k what 

they will find will not be pleasant.
263

As I s peak aro und the co untry a bout amn esty and m y experience in 

tlie mili tary and my wo rk with veterans and des erte rs and the absent 

witho ut leaves, the account of life in the mili tary causes shock and 

outra ge in the average person. How will we resp ond to amnesty, when 

the my ths th at have been pe rpetuated by a W orld W ar I I g enera tion 

th at is living in the cloud s, th at hav e kept young men down fo r so 

long , are broken ? Th en I think people will see wh at th is country 

carried out fo r so long, and I th in k the y will very quickly tu rn 

aro und, and you will see H ar ris polls and more th an H ar ris polls 

welcome an amn esty . I am quite conv inced of th at. Bu t it will tak e 

some time and some sneezes on the part of us in this room to get the 

att en tio n to the trut h.

Mr. K astenmeier. I am going to yie ld at th is point to the gen tleman 

fro m Massac husetts, Air. Dr inan.

Mr. Drin an. I want to than k both of you fo r yo ur testim ony . And 

I will talk wi th Mr. Mo tt first, and then I will come to Air. Alusil.

On pag e 4, could you give u s some idea of the numb er in th at partic ular cat ego ry? At the bottom you say th at hugh numbers of conscientious objecto rs, or people who hav e appli ed for th at , were denied 

th at sta tus by the Sele ctive Service. An d the officials o f the Selective 

Service this mo rni ng ind icated th at somehow the y did not collect 

inf orma tio n on the peop le who were denied conscientious objector 

sta tus , bu t ju st on those who were successful. AVould you be able to fill 

in here som ething about how m any ?

Air. Mott. W e could not give much be tte r than an order of m ag nitud e, because th ese records have n ot been ke pt by the S elective Service 

System. Alost of the files hav e been des troyed now. We can give only 

an estimate. 1 estimate th at tens and tens of tho usa nds—i t is in the 

tens of tho usa nds, the numb er of conscientious objectors who filed 

th ei r cla ims and were not recognized.

Now, there were many reasons fo r th at . Some were selective objec tors and were no t qualified un de r the law. Some filed th ei r claims 

af te r the ind uct ion order was issued, and it was too late . Some ju st 

were not rec ognized even th ough th ey did everything on time a nd used 

th ei r appea l righ ts a nd e veryt hin g else. Some o f these men swallowed 

th ei r consciences and went into the Army . Some got other deferm ent s 

so th at the y never showed up in the ind uction ref usal figures. Th ou ­

san ds pro bably the n did succeed in ge tti ng some other deferm ent . 

Some went to court and won. An d some went to court and lost.

Air. Drin an. I won der if some of those people are involve d in the 

ba rgaining th at you mentio n on page 10. You say th at some dra ft 

ref users wen t and accepted the promis e of the m ili tary that, if the y 

accepte d ind uct ion th at the cha rges ag ain st the m would be forgiven. 

I assum e some of those ind ivi duals were in th at group.

Air. AIott. Some conscientious objecto rs, if n othin g would work out 

withi n the Sele ctive Serv ice System, wou ld then go into the Ar my 

ins tea d of fac ing p rosecu tion , bu t no t m ost, at lea st in my experience. 

Bu t some did so. One reas on why some did so was th at t he Sup rem e 

Co urt said th at if you filed your conscientious objector claim af te r 

the ind uction orde r ha d been issued, in th at case you were suppos ed 

to go into the A rm y and seek a c onscientious objector discha rge from 

wi thin the Army . Tha t is the EM ert case whi ch I mentio ned in my 

testimo ny. But I hav e counseled wh at we called i n ou r jarg on Ehl er t
264

cons cientious objectors, scores of them , men who filed their conscientious objector claim af te r the induct ion ol der was issued. An d at least 

am ong those I have counseled and the oth er coun selors I have talked 

wit h, more of them did persist in their refusals o f inductio n than t ha t 

wen t into the Arm y. Altho ugh the re was a good-sized num ber in each 

category.

Mr. Dkixax. On anoth er question. T was quite intri gu ed with what 

you said at the botto m of page 10: “Most Eu rope an cou ntries amnestie d World W ar II dra ft refusers imm ediately af te r the wa r.” And 

then you men tioned Fra nce . I am sure th at yo ur organizatio n would 

have more inf orma tio n on the inter natio nal situatio n. An d I think 

that, would be helpful to the committee. Would you have any generalization as to wh eth er or not the Un ite d States is way beh ind in this 

or what?

Mr. Mott. There rea lly is not much question th at th e Un ite d Sta tes 

is way beh ind oth er countri es. I am not per son ally th at familiar w ith 

other countries. W ha t I am more person ally famili ar with is how we 

are way beh ind in our own his tor y from ea rli er wars. An d in earlier 

war s t here have been qu ick a mnes ties, or before this ce ntu ry th ere was 

not really a need for amnesties, once the punish me nt was over.

Mr. Dkixax. In conn ectio n with that, I know th at yo ur organiz ation app lied for amn esty af te r the Korea n war unsuccessfully, as you 

noted here. W ould you give us the ba ckg rou nd of t hat ?

Mr. Mott. I was a littl e chi ld at t hat time, and I am af ra id th at I 

cannot say much abo ut it now. I could dig thi ng s out of archives and 

records. I just know th at we were one of several gro ups th at did seek 

amn esty. Of course, com par ed to the Vietn am war, the re were a very 

small num ber of d ra ft refuse rs and a tin y numb er of deserter’s who 

were des erte rs for conscience’ sake du rin g the Ko rea n war.

Mr. Dkixa x. It would be helpf ul, tho ugh, because the witnesses 

tod ay were using thi s as a precedent, th at we had no amnesty after 

the Ko rea n war.

One oth er question, M r. Mott.

You mentio n on page 13 th at there was a g eneral amn esty af te r the 

F ir st W orld W ar given by President Rooseve lt in 1933. W ha t was the 

leg islative pictu re the re, and wh at were the forces bu ild ing up th at 

ap pa rently President Roosevelt responded to when he came into office 

the first, time?

Mr. Mott. I could not possibly answer th at o ffhand. I believe it was 

a purel y executive amn esty, ju st a wholesale gr an t of executive clemency. A good num ber of ind ividual Worl d W ar I vio lators ha d been 

pardo ned earlier du rin g the 20th cen tury by other Presi dents . An d I 

believe P res ide nt Roosevelt largely co mpleted th at task.

Mr. Dkixa x. Mr. Musil, a couple of questions. I am familiar with 

the separat ion pro gra m num bers, the SP X, where the y have all these 

secret codes, so to speak. Do you hav e any specific inf orma tio n as to 

wh eth er th e se parat ion prog ram num bers are tie d to some conscientious 

objectors? You mentioned th at here. But are there any ball pa rk 

figures ?

Mr. Musil. There were specific sep ara tio n prog ram num bers codes 

for conscientious objection.

I wou ld pres ume ------

Mr. Dkixax. Is th ere a se parate code f or them ?
265

Mr. Musil. Yes, there is. My own discharge is coded conscientious 

objector. I would not want that removed. But th at is my own business. 

However, it should match the number of men who were discharged as 

conscientious objectors, which I believe was approximately 14,000 or 

so. Most of them, however, are for absolute insane categories, apathy, 

obesity, chronic underproducer, men who have just been slandered and 

driven out with bad discharges without any reason.

I just wanted to put in a word—you asked about the history of the 

organization and-the previous amnesty effort. And one thing I wanted 

to underscore is that officers named to look at the Central Committee 

for Conscientious Objectors military and dra ft counseling in 1968 

discovered th at through the history of our organization tha t our concerns have broadened, and we have gone through a growing process 

ourselves. Most of the amnesty action around World W ar II or Korea 

was specifically concerned with Selective Service violators, and particularly those persons who did not qualify under the law at th at time, 

who were nonmembers of the pacifism movement, and so on. One 

good thing at least that we can say about the Vietnam war is tha t 

most of those in organizations like the Central Committee for Conscientious Objectors will have better understood the plight of those 

who did not come from a traditional religious pacifist middle class 

background. And we have extended our concern for a number of years 

now for all kinds of violators, because as I indicated in my own 

testimony. I was able to receive some kind of relief. I did not end up 

in Fort Leavenworth only thanks to a kind of an elite education 

before T got in the military, and as I said, had T been an ordinary GI, 

I would either have been shipped over, with whatever consequences, 

or more likely have been court-martialed.

So I just wanted to underscore tha t point, that previous amnesty 

efforts tended to be directed at Selective Service violators of a very 

traditional middle class background. And I think the question before 

us today is far broader and far more unprecedented. And I said in 

our statement tha t I want to urge amnesty for all sorts of people. 

There is a man who works in our organization who filed a discharge 

application years before I did in the military. The result in his case 

was 14 months in Fort Leavenworth. By the time I came along things 

were somewhat easier. I want amnesty for him, Dave Brown. But 

I also want amnesty for a guy who was being abused and called a 

nigger bv his dra ft sergeant, and he could not stand it any more, 

and punched that guv out and went over the hill.

I think that the record of racism in the Armed Forces is clear. The 

Department of Defense Task Force on the Administration of M ilitary 

Justice makes it clear that there is systematic racism throughout the 

Armed Forces, and not only as a result of the racism prevalent in our 

entire society.

So that in dealing with this question T think if we focus narrowly 

on the terms of deeply held moral and ethical beliefs, the only people 

who will get satisfaction are those who are articulate and middle class 

and come from traditional pacifist and other kinds of background. 

I think that is the cycle we have to break in this country and recognize that we are divided by class and by race and it was the least 

fortunate who had to serve in this war and if there is to be justice 

there will have to be some recompense for that.

31- 658— 74------ 19
266

Mr. Drinan. One las t question. I un derst and on page 15 th at yon 

feel th at H.R . 3100 and II. R. 236 are inadeq uate. Bu t once aga in, 

somebody with a d ischar ge th at is less than honor able has to go somewhe re to have th at cha rge changed. An d we have to have a tribu na l 

or an ad mi nis tra tio n o r a reg ulato ry agency. Do you or yo ur colleague s 

hav e any idea how we can do this while also giv ing wh at you term 

autom atic gen era l amnesty?

Mr. Musil. It seems to me th at the question of up gr ad in g all dis ­

charges is ra th er simple. The Pe ntagon is able to tu rn out disc harges 

with five categories now, and if there was leg isla tion enacted that 

req uir ed them to change all those disc harges to hon ora ble ------

Air. D rin an. I t hink I ha d in mind a trib un al outside o f the Pe nt agon. An d I think th at they wou ld be res isting all typ es of things a nd 

dre am ing up new’ ways of lawlessness. Do you con tem plate th at this 

can be done by military methods? Do you contem plate th at the existing military would, if the Con gress and the Presiden t so decreed, in 

fact change th e discharges?

Mr. Musil. I f the y are still responsive to civilia n con trol, which I 

realize the re is inc rea sing doubt about, I ima gine th at the y would.

Mr. Drin an. You think, in other word s, th at we do not need thi s 

ex tra civilian tri bu na l, but th at the military itself can tak e measures 

to r ectify these th ings ?

Mr. Musil. If ordere d to do so.

Mr. Drin an. Than k you very m uch, sir.

Mr. Kastenmeier. Th an k you.

Ju st one fur th er question of Mr. M ott.

You serv ed in a Federal in sti tutio n as a res ult of violations ?

Air. Mott. Tha t is ri gh t. I serv ed 16 months in three F ed eral prisons 

and 10 in county and local jails, sir.

Mr. Kastenmeier. W ere you, to the e xtent th at y ou can spe ak concernin g oth ers, subjected to inc arc era tion whi ch was equ ivalent to 

othe r typ es of offenders, or was it more str inge nt o r less strin ge nt on 

you as an inm ate?

Mr. Mott. The conscientious objecto rs in the Federal prison s are 

mix ed in wi th all the oth er Federal prisone rs. An d I think I can see 

why. The prison bureau does not wa nt too man y in one place, because 

the y will cause trou ble if they are all to gether.

Th ere is o nly one ma jor differen ce in the t rea tm ent of conscientious 

objectors in prison , and th at is, tho ugh the re is no written policy, the 

actual parole policy is very differen t. In the case o f a dra ft ref user or 

conscientious objector in the prison , it really does not mak e much 

difference how he behaves or wha t he did before he was in prison or 

an ything like th at , he will be paroled af te r 1 to 2 yea rs in prison.

Mr. Kastenmeier. Th is subcomm ittee is also charg ed wi th the responsib ility of prison reform . Among oth er things we have de ter ­

mined, is th at in the las t couple of yea rs there are very few’ dra ft 

offen ders who were given the advanta ge of wh at is called pretria l 

dive rsion. In oth er w’ords, nearl y all Selective Serv ice offenders were 

sentenced, ra th er than div ert ed to oth er pro gra ms , no tw ith sta nd ing 

the fac t th at the y otherwise fulfilled the prog ram requirements. And 

the question rem ains , to wh at exten t were they sub jected to d isc rim ina ­

tion within the prison system ?
267

Mr. Mott. Well, the business of pretrial diversion, of course, is a 

court matter. And I would say that conscientious objectors are treated 

by most Federal judges quite differently than an ordinary criminal 

defendant who comes before them. Some treat the conscientious objectors better in some ways, and worse in others. It is very hard to state 

a rule.

Mr. Kastenmeier. Thank you, Mr. Mott and Mr. Musil, for your 

testimony here today.

Mr. Musil. One final thing I would like to say. I would just like to 

underline the urgency of this question. I have heard a great deal of 

discussion on whether it is premature or whether these hearings should 

have been held now or years ago. Those of us who resisted the war are 

no longer young. I have finally reached the age of 30. This question has 

dragged on far too long, and justice should have been done years ago. I 

recall reading your hearings on the war when I was quite a youngster. 

It had a deep influence on me. I think it is particularly the responsibility of those Members of the Congress who have opposed the war 

to seek amnesty with as much speed and determination and vigor as 

they opposed the war originally. And I hope that tha t will proceed 

quickly indeed, because Dick Bucklin is in jail, and Lew Simon is in 

jail. And nearly a million people need amnesty. And every minute 

of delay is tragedy to their young lives.

Mr. Kastenmeier. Thank you for your statement. Obviously, the 

committee feels that it is proper to take the question up at this time. So 

to that extent you have succeeded.

Our next witness this afternoon is Col. Phelp Jones, the director of 

National Security and Foreign Affairs of the Veterans of Foreign 

Wars of the United States. Colonel Jones very graciously gave up his 

spot, which was the second spot this afternoon, to former National 

Commander O’Neil of the American Legion. The committee is very 

appreciative of that.

5 our own statement, Colonel Jones, is brief. You may proceed to 

read it verbatim if you wish. You also have certain attachments to your 

statement which you may desire to have included in the record.

TESTIMONY OF F. P. JONES, COLONEL, U.S. ARMY (RE TIR ED), DIRECTOR, NATIONAL SECURITY AND FOREIGN AFFAIRS, VETERANS OF FOREIGN WARS OF THE UNITED STATES

Mr. J ones. Thank you very much for your courtesy, Mr. Chairman. It is, of course, a pleasure to be here. 1 will abide by the rules you 

indicated earlier tha t witnesses are limited to 10 to 15 minutes. And I 

am mindful also that you must speak in a loud voice if you hope to be 

heard, in a clear voice if you hope to be understood, and briefly, if you 

hope to be appreciated. 1 will follow all three admonitions.

First of all, as you know, the Veterans of Foreign Wars of the 

United States is composed of 1.8 million individuals who serve overseas in the defense of their country. We are meeting now in Washington, as a matter of fact, and we hope to see you, other members, to 

include members of the subcommittee, and the full committee, at our 

congressional dinner next Tuesday night. We certainly hope you will 

join us.
268

T am here in behalf of Mr. Ra y Soden, of Chicago, Ill., wh6 is o ur 

national c omm ander in chief.

I have atta che d to my form al statem ent, which T will summarize, our 

resolu tion No. 459, which was passed at ou r 1973 annual convention 

las t summer at New O rlea ns, La., A ugust 17 to 24,1973. In th is reso lution we call for unequivocal opposition to both gen era l and selective 

amnesty, and we f ur th er stat e th at we will nev er relinq uis h, dilute , or 

com promis e this positio n.

In t he form al statement I have listed a serie s o f actions which have 

been term ed “amne sty,” from the Wh iske y Rebellion of 1795 throug h 

Korea. I will not recite those again. If you, Mr. Ch airma n, or other 

mem bers care to question me, I w ill produce th e best figures on i t I can.

Our princ ipa l poin t is that there has never been unc ondition al 

amnesty for dr af t dod gers af te r any war, from the foundin g of the 

Republic th roug h Korea.

Now. our ration ale fo r the admi tte dly str on g position we tak e 

fo llo ws:

No. 1, is the point of nation al unity. It is our view, and a strongly 

held view, that to welcome back whatever the numb er—and we fully 

un derst and valid num bers h ere are difficult to get at —wh atev er n um ­

ber—'Would be more divisive than healing . The memories are fa r too 

fresh of the return of the prison ers of w ar and th ei r stor ies of what 

happened to them, as well as the accounts g iven to the Sen ate Fo rei gn 

Relations Committee by the Nationa l Lea gue of Fa milies of Mis sing 

in Ac tio n/Pr iso ne rs of War in S outhe ast Asia.

The notion of justice is ha rd to art icu late. And pe rhaps th is is one 

of the thing s on which we polariz e so obviously in th is room today. 

We tak e the view th at for whatever reason Vietn am took place, and 

however poorly it was man age d or conceived, there are 56,234 dead 

Am ericans, 303,000 were wounded, of whom 150,000 were wounded 

very severely. I referred to the 566 priso ners of wa r ret urned earlie r, 

and I have also made referenc e to the spec ial, ra th er poign ant condit ion of the nearly 1,300 men still missing in actio n.

The second poin t of our rat ion ale , of course, tu rn s on the rule of 

law. And th at is som ething t ha t I am cer tain is o f centr al concern to 

th is subcomm ittee and to your full comm ittee.

No. 1. Today whatever one may say abou t the whole array of 

dom estic problem s co nfronting our cou ntry, the system of justice is 

working, however fitf ully, however pro dded by an ale rt and far - 

rang ing press. I think it is fa ir to say—and we are ge tting daily 

affirmation of i t—tha t the system of justice is w orking. It is o ur view 

th at no Am erican, no matter whatever his sta tio n in life may be, 

sho uld neith er expect more nor accept less than his fa ir day in court.

Th e notion of pre fer entia l justice is anath em a to the pa trioti c 

mem bers of the Vetera ns of Foreign Wars. We oppose after-t he -fa ct 

justice. And it is th at notion of elitism, I think, th at strike s rig ht at 

the he art of our cen tral concern.

Ad dit ion al to th is motion of justice is wh at I would call full 

custom er choice .of wars. W ith auto mob iles tod ay we are allow ed a 

numb er of options which we may accept or reject as we see fit. I do 

no t th in k this can apply to the supreme political act our Na tion can 

engage in, however wisely or unwisely conceived, which is, of course, 

going to war.
269

As to nationalsecurity, I could not imagine anything more hurtful 

today to the studied, calculated risks we are taking to produce those 

forces needed for our country’s safety via the All-Volunteer Forces 

than to introduce anything approaching amnesty a full unconditional 

amnesty or a conditional one. As the chairman full well knows, 4 or 

5 years ago we had 3.6 million men under arms. Today it is about 

2.1 million on Active duty. We are making every effort—I am speaking now, of course, of the country—to strengthen the Reserve Forces,, 

the six Reserve components. I could not think of a more hurtful 

example than “amnesty” for both the Active duty and the Reserve 

Forces today in this new environment, an All-Volunteer Force— 

which, incidentally, is not used by our putative opponents, the Soviet 

Union or the People’s Republic of China, they have near universalcompulsory military service.

The quality of compassion has been invoked from time to time by 

those who favor amnesty. Compassion is a very admirable attribute. 

As a matter of fact, our view tha t the United States of America, 

viewed one way, is a network of compassionate work of one kind of 

act or another performed by various Veterans of Foreign Wars posts, 

the length and breath of the land and their ladies’ auxiliaries, tilings 

that help people directly today. But the real question then is. compassionate toward whom? Toward the people who fought the war no 

matter what their views might have been, who might have desired 

a shorter and more purposeful war, or obviously no war at all ? A war 

has not been conceived yet tha t is not brutalizing or dehumanizing. 

I have spent 30 years in the Army, and I guess my “war box score” is 

1 won, tied 2. And we hear the argument th at World W ar I I somehow 

was a good war and Vietnam was a bad war. No war is good for the 

Army, the Marine Corps, or combat crews of the Navy or the Air 

Force.

The redemptive quality of justice and the lack of vindictiveness is 

sometimes cited as something we should keep in mind on the notion of 

amnesty. Well, I am going to cite a case that was cited by an earlier 

witness, and in a rather different context. A young man who spent 5 

years in Sweden during the heart of the Vietnam war, 5 years, 1968 

to 1973, was found guilty of absence without leave, and has been sentenced to 15 months in the stockade. That, I think, is an incredible 

sentence in view of the seriousness of his offense. So rather than cite 

it as something that is horrible as happening to our system of justice, 

I think that is an example of the kindliness and compassion that many 

of the young people have every right to expect when they return and 

face up to their responsibilities as citizens.

In all frankness, I believe that the title of some of the proposed 

legislation your subcommittee is considering, the “W ar Resistors' Ex ­

oneration Act,” displays sort of a cavalier sense of vindictiveness toward Americans who did not seek “full customer choice" of their war. 

W1 latever their personal views were, they went the pro patria route 

versus self-fulfillment or self-gratification or self-rationalization.

Two distinct bodies of people are involved here, which. I am certain, 

you recognize, Mr. Chairman, and the other members of your subcommittee. There exists a mechanism for deserters. I t is the Uniform 

Code of Military Justice, as amended, in which the Congress has collaborated over the years. It is not a document dreamed up by some
270

Dr. Str angelov e in the Pe ntagon or an ything lik e th at . It h as the full 

collab ora tion of this bra nch of Government as well, of course, as the 

executive branch.

I h ave alr ead y given an example o f how one case u nd er the U niform 

Code was resolved, and I th ou gh t resolved at an inc red ibly lig ht level. 

I see no need f or any ad dit ion al mechanism fo r deserters. A nd in terms 

of num bers involved, once again num bers here are difficult, the numbers I have —an d I hav e no reason to doubt the m—i ndica te th at f rom 

abou t the mid-1960’s t o about a year ago, a lit tle more th an 500,000 

des erte d from all the arm ed services, and there are abo ut 30,000 out 

now. Le t us say those figures were off by 10 perc ent. Good Lo rd, 30,000 

deser ters is a serious proposition. It is equal to abo ut two divisions. 

Bu t it is no t a “nation” of Am eric ans a bro ad o r a “ na tio n” of Am ericans un dergr ound or anything of th at sort.

Now. in terms of those who are dra ft dod gers, or other tit les th at 

hav e been applied to them here, it is q uite c lear to me, they bro ke th e 

law, often with very noble and self-serv ing statem ents surro un ding 

th at action, and I th ink it would be in their i nte rest and in the i nte res t 

of the cou ntry to have them face up to Am erican justice which, as I 

have ind icated e arlier, evidence of which we a re seeing daily f rom the 

hig hest to the lowest works.

1 must confess some resp ect, for those whose opposition to the war 

in Vie tnam, or any earlier war, led them to sta nd up and be counted 

and acce pt a jail sentence. Th ey are accountable citizens of a fre e 

cou ntry. Those men have my respect. While I obviously d isagree with 

the stand th ey took, they have my respect.

We are appro achin g our National Bicen ten nia l, as we all know. In 

the nine wars th at have m ark ed our c ou ntry ’s pro gress, in one m ela ncholy way from t he Devolution t hrou gh Vietn am , we ha ve seen 667.000 

dead Americans, and wh ate ver else one m ay say o r t hi nk a bou t w ar— 

and as I have ind icated earlie r, the good wa r has no t been conceived 

yet—these brave Am erican s mad e all else possible. I think amn esty 

would be a s tud ied insult to those th at are living today and those t hat 

went before.

I would fu rthe r suggest th at I find it very difficult to accept the 

notion, che rish ed by some, th at dra ft d odger s somehow are t he mo ral 

vessels of the ind ustrial west, to whom like gu rus we sho uld rep ort for 

mo ral up lift Avhen they return to our shore s. They are, in fac t, law ­

breake rs, as I have said ear lier. I am not accusin g them of being 

cowards. They may be in some cases, I do not know. Assessment of 

mo tiv ati on is most difficult. Bu t no matter wh at the y thou gh t, or no 

matter wh at the people who stood and fo ug ht in th ei r place tho ught, 

the y b roke the law.

I can assure you, sir , and o ther members of yo ur subcom mittee, t hat 

Vietn am was not a po pu lar wa r fo r those of us calle d upo n to do our 

co un try ’s b idd ing. It was in fact—as we h ave said in the Veterans o f 

Fo reign Wars , it may or may not have been a rich ma n’s w ar, bu t it 

was a poo r boy’s fight. Some soldiers in mv un it were illite rate in two 

lan gu ages: En glish and Spanish. An d I th in k it was a disgrace th at 

the Un ite d Sta tes of Am erica sent over to fight in its in fa nt ry — 

and I mean here Army and Marine Corps —people who ha d such a 

sma ll stak e in our country.
271

So Vietn am was not a po pu lar wa r one iota. Bu t th at is something 

ap art. We are talking now about people who. howev er they ra tional ize, 

sought t he ir way o ut of it.

I suspect, in all franknes s, th at amnesty is so rt of an artific ial issue. 

I detecte d no grea t gro und swells eit he r fo r it or again st it in my 

tra vel aro und the cou ntry. Th ere are artic ulate gro ups th at keep it 

alive. I suspect, however, th at the re is quite a bit of “bicycle pu mp” 

work on amne sty as opposed to the natur aln ess of a real political i ssue : 

$1 fo r a loa f of bread. $1 fo r a dozen eggs, and 2 h ours in a gas line. 

Those are things th at we can all un de rst an d. Those are ubiquitous, and 

the policies th at brou gh t thes e issues to pass are vali d pol itic al issues.

I would also sugg est to this subcommittee th at ter rorism, political 

or personal, is something that , p erh ap s at some fu ture date, you should, 

within yo ur own procedures, come to gr ips with. W ha t happened on 

the west coast, and wh at happened in Atla nt a and wh at ap pa rently 

happened outside Pa ris is a te rr ifyi ng new dimension of political 

“d ialog,” to say t he least.

Mv final p o in t: I t hink the re a re a bout 7.000 to 10,000 Americans who 

are dra ft dodgers, e ith er un de rgroun d in th is cou ntr y o r abroad. There 

may be more, or the re may be somewhat less. As T ind ica ted earlie r, 

these figures here are not “m orn ing re po rt” item s from the militar y. 

They can only be of an order of ma gnitude. An d these 7,000 to 10,00*0, 

need n ot fear their day in court.

Th ere has been diss ent from past wars. In Con gressm an Drina n’s 

home St ate there was a powerful dissen ter to Am erican pa rti cipa tio n 

in Worl d W ar IT. His name was J oe Kenn edy . ITe was Am bassador to 

the C ou rt of St. Jam es. H e did ev erythin g he could not to a lig n A me rican pow er with th at of the the n Br itish empire and sought to keep 

Am eric a out of World W ar II . Whatev er his views were, or th e views 

of his son, Pr esiden t Ja ck Ke nnedy —who wro te, “W hy En glan d 

Sl ep t”—when the time came, the Kennedy s went the rou te fo r th eir 

cou ntry.

I have a ttached also to my statem ent , M r. C ha irm an, an ex change of 

corresp ondence between our com mande r-in -chief, Mr. Ba y Soden, in 

Chicago , Ill ., in whi ch Mr. Sode n sought to get a reaffirm ation fro m 

the Pr esiden t of the Pr esiden t’s earlier opp osition to amn esty . Suc h a 

reaffirm ation was received, and i t is a ttached to ou r testimony.

I believe you might have seen in an othe r conte xt the lette r th at 

form er Secre tary of Defe nse Melvin Lai rd furnish ed in conn ection 

with th at issue. T believe I have seen it in the Con gressio nal Record. 

An d for that reason, I hav e no t attac hed i t to this tes timony.

Th an k you very m uch fo r your courtesy.

[Mr. Jo ne s’ statem ent f ollows:]

Statement of Col. P helps J ones, United States Army (Retired), Director,

National Security and F oreign Affa irs, Veterans of Foreign Wars of th e

United States, March 8, 1974

Mr. Chairman, on beha lf of more tha n 1.8 million of our fellow Americans 

enrolled in the Veterans of Foreign Wars of the United State s, I am pleased to 

appear here representing the National Commander-in-Chief, Mr. Ray R. Soden, 

Chicago, Illinois, in response to your written invitatio n. The V.F.W. is apprecia ­

tive of this opportunity to present our views on the subject of “amnesty.”
272

I have atta ched to my prepared remarks Resolution Number 459, “Oppose 

Amnesty,” adopted at the 74th National Convention of the Veterans of Foreign 

Wars of the United States, held in New Orleans, Louisiana, August 17-24, 1973.

The operative para graph of our mandated position from this resolution follow :

“BE IT RESOLVED, by the 74tli National Convention of the Veterans of For ­

eign Wars of the United States, that (1) we go on record opposing unequivocally 

both general and selective amnesty for draft dodgers and m ilita ry des erte rs; and, 

(2) that they should be required to stand trial for the ir crimes and shall pay 

such penalties upon conviction as the laws prescribe; and

“BE IT FURTHER RESOLVED, that the Veterans of Foreign Wars of the 

United States be totally committed to pursue the ‘no amnesty doctrine’ through 

its membership, the Congress of the U.S., and the American people and to be firm 

in our stand not to relinquish, dilute or compromise this position.”

Obviously, there is no question of where we stood yesterday, where we stand 

today, and where we will stand tomorrow.

We totally and unapologetically opi>ose general or selective “amnesty” for draf t 

dodgers or dese rters and we will never, as our resolution indicates, “relinquish, 

dilu te or compromise this position.”

I know these are strong words, but we believe any dep artu re from this clear 

cut position would be a trag ic and pointless breach of faith, not only with 29 

million veterans and their families, but with the gre at majority of Americans 

of all political persuasions and from all sections of th is country.

In furtherance of the foregoing position, I will now (a) provide a short history 

of “amnesty” in America; and then, (b) summarize the reasons for the V.F.W.’s 

“no amnesty” doctrine.

A SHORT HIS TORY OF “ AM NE STY”

While there have been thirty-four separate incidents of “amne sty” in U.S. 

history, dating back to George Washington’s 1795 pardon of those participan ts 

in the Whiskey Rebellion who agreed to obey th e law, there has never been an

unconditional “amn esty” of dra ft dodgers follow ing any war. There was no

“amnesty” after Korea.

KOREA

President Truman’s 1952 Christma s “amnesty” dealt only with peacetime

deserters—men who had left their units between V- J Day and the outbreak of 

Korean hostilities, June 25,1950.

WORLD WAR II

Afte r World War TI, 28 months after V-.T Day, President Truman provided 

pardons for some 1,523 out of 15,803 draft law violators whose cases had been 

taken up, with case-by-case recommendations, by a review mechanism. That was 

one out of ten.

WORLD WAR I

Post World War I. in 1924, Presiden t Coolidge provided “amnesty” for 100 

deserte rs—but. all 1<K> had deserted their units after the November 11, 1918 

armistice. They were peacetime deserters.

In 1933, Presiden t Roosevelt—15 years aft er the World War I Armistice— 

granted “amnesty” to 1,500 individuals convicted of espionage act and draft law 

violations durin g World War I, who had completed their sentences.

CIV IL WAR

The Civil War “amnesties” are those most cited by proponents of Vietnam 

“amnesty.” However, the comparisons are inexact. Fir st, they never dealt with 

draft dodgers. Secondly, all of Presiden t Lincoln’s and Preside nt Johnson’s 

“amnesties” dea lt with (a) Confederates or (b) deserters from the Union Army— 

and none of them was unconditional.

To the Confederates, with exceptions, President Lincoln in 1863 offered pardons 

if they took an oath of loyalty to the Union. His purpose was clearly to deplete 

Confederate ranks, or to ease the burdens on the Union. To Union military 

deserters, in 1865 President Lincoln offered full pardons, contingent upon the ir 

return to the ir units, within 60 days, to serve out a period of time equal to their 

original period of enlistment. Punishm ent set by Congress for not returning 

within 60 days was permanent forfeiture of rights of citizenship.
273

The principa l occasion on which Preside nt Lincoln’s government dealt with 

dr aft registers was in the City of New York, where many rioted in March of 1863, 

and Mr. Lincoln’s Federate put down the riots with between 500 and 1,000 dead.

Shortly after taking office, in May, 1865, President Andrew Johnson granted 

full pardon to all Confederates (with exceptions) who took the unqualified oath 

of allegiance. Similar proclamations were issued in 1867 and 1868—leaving few 

Confederates ineligible. In July, 1866, more t han a y ear after the wa r’s end, President Johnson allowed 

deserters to return to military duty, without punishment, but with forfeiture 

of pay.

Post-Civil War, there was never a general unconditional “amnesty” for eith er 

dr aft dodgers or deserters ; and, indeed, not until 1898 did the Universal Amnesty 

Act remove all disabilities against all former Confederates.

CONCLUSION

What those who have fled the country and the ir unfeeling supporters now seek 

is not “amnesty” or forgiveness. They seek vindication, approval by the United 

States Government, that they were right and America was wrong. To gran t what 

these few thousand dese rters demand would be to dishonor those millions who 

served tlieir country with honor, whateve r their vie ws migh t have been about our

no-win war policy in Vietnam.

SUM MA RY OF V.F .W. OPP OSITIO N TO “ AM NE STY”

TRADITION

There has never, following any American war, been a general “amnesty” for 

dr af t dodgers.

NATIONAL UNI TY

A majority of Americans strongly oppose unconditional “amnesty” for draft 

dodgers or deserters. The country would be divided, not united, by such a policy.

JU ST IC E

For every individual who deserted, hundred s ser ved; some of the latte r paid 

with their lives. Is it fair to the dead, fair to the thousands in hospitals, fair to 

the families of wounded, missing and lost tha t, when the war is over, the run ­

aways come home either scot-free or with an easy altern ative to combat service?

RULE OF LAW

If some are allowed to place the ir own views above the laws of the United 

State s, with impunity, the rule of law itself is undermined.

NATIONAL SECURITY

Exoneration of draft dodgers and dese rters would set a precedent that might 

convince young men, in future emergencies, that they risk little or nothing in 

ducking the ir country’s call to war service. The impact would be dramatic and 

adverse upon the men in both the active service or reserve components who either 

volunteered o r answered the call to duty. Now, the quality of “compassion” or “redemptive justice” is invoked by those 

who favor “amnesty” or some soft altern ative to wartime service. Now compassion is a fine a ttribut e. As a prac tical matter, America is one gre at network of 

compassionate community services undertaken by V.F.W. Posts and their Ladies’ 

Auxiliarie s. But, Mr. Chairman, and this is the crucial “but,” a misdirected sense 

of compassion for those who are openly contemptuous of our country and its most 

cherished values is not an act of compassion. It would be idiocy. I shall now refer to some correspondence i nitiated by our Commander-in-Chief, 

Ray It. Soden, with the President on this subject—a copy of this correspondence 

is also attache d to this statement. Mr. Nixon re-iterated in the clearest possible way his view tha t, “. . . Those 

who served paid their price. Those who deserted (or refused to serve ) must pay 

the ir price. And the price is a criminal penalty for disobeying the laws of the 

United Sta tes.”
274

We agr ee totally with Pres iden t Nixon’s position. We m ust rejec t, totally, views 

app aren tly held by some Members of the 93rd Congress which call for eithe r 

general amnesty, conditional amnesty, or some soft peacetime national service 

in lieu of hazardous war time exposure.

For deserters, there is the Uniform Code of Military Justice, as amended. Perhaps in some cases of desertion ther e could be m atte rs in mitigatio n and extenu ation which could be brough t forward. But, a mechanism now e xists for deserters. 

No legislation appe ars needed here.

For dr af t dodgers, the ir sole recourse is to face American justice for the ir 

criminal actio n aga inst the community. No American should ask for pre fere ntia l 

justice ( “amne sty” ), none need accept less than his day in court.

Mr. Chairm an, a final word.

In 1976, our beloved country will be celeb rating its bi-centennial. Since our 

revo lutionary beginnings, 667,000 American fighting men have laid down the ir 

lives in nine wars from Bunk er Hill to Vietnam. This outpo uring of devotion is 

the rock on which our coun try has survived and flourished. These brav e Americans made all else possible. To extend pref eren tial justice to those who placed 

themselv es outside this tra dition of selfless patr iotism would stri ke at the very 

he art of what t he bi-centennial celebra tion is a ll about.

I urge you and your colleagues in the Congress to reject any effort from any 

qu art er to bend justice to fit dr af t dodgers and deserters. We a re a b etter natio n 

for not havin g them in our midst.

Thank you.

Mr. Kastenmeier. Than k you, Colonel Jones.

Without objection. Resolution No. 459 adopted at the National Convention of the VFW last August, a letter from Commander in Chief 

Ray Soden to the President dated Janu ary 7 of this year, and the 

President’s reply dated January 23, 1974, to Commander in Chief 

Soden signed by Richard Nixon, will be accepted as a part of the 

record.

[The resolution and letters referred to follow :]

Reso lut ion No. 459

OPPOSE AMNESTY

Wherea s, in crucia l times, millions of American c itizen s have been called upon 

and have honorably served to defend our country and to prote ct our cherishe d 

freedom s; and

Whereas, in doing so, m any were killed, wounded, inca rcerated in enemy prison 

camps, missing in action and many retu rned home to rebuild a life of peace and 

opportunity for themselves, and the ir families and took their righ tful place in 

the land for which they fo ug ht; an d

Whereas, while these gre at men served with honor, others who also had been 

called upon to serve sought not to accept the ir responsibilities but abandoned 

their country by fleeing outside its b orders : a nd

Wherea s, othe rs while servin g in the mili tary chose to dese rt ra th er than discharge the ir sworn obligations ; and

Whereas, to gra nt amnesty to those draft dodgers and deserte rs who violated 

civil and military laws with out penalty , would be a gross injustice to our judicial 

system, to the sacrifices made by those who served and are stil l serving, the ir 

families, POWs-MIAs and to the United States of America ; and

Wherea s, we fully and completely agree with Pre sident Nixon when he state d 

th at “men who dodged the dr af t and sought asylum in oth er land s while the 

Vietnam war was in progress and now wish to retur n to the U.S. must pay the 

price and no amnesty will be afforded them” ; Now, there fore, be it

Resolved, by the H th Rat ional Convention, of the Veterans of Foreign Wars

of the United States , Th at (1 ) we go on record opposing unequivocally both genera l and selective amnesty f or draft dodgers and military de se rte rs; and (2 ) that 

they should be requ ired to sta nd tri al for the ir crimes and shall pay such penalties 

upon conviction as the laws pre scr ibe : and be it furth er

Resolved, Th at the Vete rans of Foreign Wars of the United States be totally 

committed to pursue the “no am nesty doctrine” thro ugh its membership, the Congress of the U.S., and the American people and to be firm in our stan d not to 

relin quish, dilute or compromise thi s position.
275

Adopted at the 74th National Convention of the Veter ans of Forei gn War s of 

the United States, held in New Orleans, Louisiana, August 17-24, 1973.

Veterans of Foreign Wars of the United States.

Washington, D.C., Ja nu ary 7, 1974-

The President,

The White House,

Washington, D.C.

Dear Mr. President : As you will recall, ray predecessors and I have constantly 

reaffirmed to you the tota l and unrem ittin g opposition to any form of “amne sty” 

held by the Veterans of Foreign W ars and our Ladies’ Au xiliary .

We have, over the years , been hearten ed and strengthened in our resolve by 

repeated expressions from you of your clea rcut and unequivocal opposition to 

this unwo rthy and divisive action.

It is with shock and a deep sense of betr ayal, there fore, th at I noted a news 

story which sets fort h, in some detail, the development of a “conditio nal amnesty 

plan” developed by Mr. Laird while he was serving as Secretary of Defense.

Mr. Presiden t, as you well know from your numer ous meetings with us, the 

V.F.W. says wha t it means and m eans what i t says.

I find the action s and app arent sentimen ts of Mr. Laird and the form er Army 

Secret ary, Mr. Froehlk e, on this ma tte r of “conditio nal amn esty” to be unconscionable and, by the ir cover t means of proceeding, to con stitute a breach of 

fai th both with you and with the stro ng men and women who served, suffered, 

and. in 57,000 cases, died.

I respectfully reque st a personal reaffirm ation from you on thi s ma tte r of 

“amne sty” which may well become an issue of wide Congressional concern.

Our view is unchanged and unc han geable: due process of the law’ for a ll ; 

pre fere ntia l jus tice for none.

Most respectfully,

/S / Ray R. Soden,

Com mander-in-Ch ief.

The White House, 

Washington, D.C., J an ua ry 23, 1974-

Mr. Ray R. Soden,

Commander-in-Chief, Veterans of Foreign Wars of the United States, Washington, D.C.

Dear Commander Soden: I have received your let ter of Jan ua ry 7 e xpressing 

the Veterans of Foreign W ars’ stan d aga ins t the gra nting of amnesty to offenders 

of th e Vietnam era.

As you know, I have previously stated my views on this mat ter, and I would 

like to tak e thi s opportunity to reaffirm my position. In the course of a White 

House press conference in early 1973, I said th at millions of Americans chose 

to serve the ir country in Vietnam and th at many gave the ir lives for the ir 

choice. The few w’ho refused to serve, or deserted their country, mus t pay a 

penalty for their choice . . . We cann ot provid e foregiveness for them. Those 

who served paid the ir price. Those who deserted mus t pay their price. And the 

price is a crim inal pena lty for disobeying the laws of the United States. Th at 

still reflects my views on the subject, and you may be assu red th at the re is no 

reason to experien ce now a sense of bet ray al as a resu lt of recent repo rts in the 

press which have been attri bu ted to others.

Furth er, I concur with your position th at the cases of all Vietnam era offenders 

should be disposed of in accordan ce with due process of law and it is my hope 

th at this procedure will be followed by all concerned.

On a completely different subject, I wanted to tak e this oppo rtuni ty to thank 

you f or your birth day greetings. Your thou ghtfulne ss helped to make the occasion 

an especially enjoyable day.

With my b est wishes,

Sincerely,

Richard Nixon,

Mr. .Tones, Thank you, Mr. Chairman.

Mr. Kastexmeier. At this time I will yield to the gentleman from 

Massachusetts.

Mr. Drinan. Thank you very much.
276

T)o T understand that you recommend that the 30,000 deserters, 

roughly, turn themselves in, and they will get what you consider an 

incredibly light sentence of 15 months in jail.

Mr. J ones. I gave the example of the Fort Carson case as certainly illustrative of the type sentences that could be meted out to some 

of those deserters. Quite obviously I have no pattern of punishment.

Mr. Drinan. l ie will still get out after jail with an undesirable discharge, or worse sometimes?

Mr. J ones. Under current regulations that is true, and in our view, 

deservedly so.

Mr. Drinan. Do you really think that is realistic to suggest that? 

You are saying that there is no problem whatsoever, and you have 

assaulted the integrity and sincerity of the people at least five or six 

times, according to the notion you took.

Mr. J ones. They have assaulted my commonsense and patriotism by 

indirection on an equal number of occasions, Congressman.

Mr. Drinan. You suggested that it is some small group tha t keeps 

this issue alive.

What about all the churches and synagogues of America that have a 

profound interest in this? They spoke here this morning, and unanimously they say th at something should be done, and th at that war tore 

people a part and tore this Nation apart, and that the Nation is now 

faced with the fact that they were all supposed to merely follow orders 

without question. We are supposed to have law and procedures that 

allow people to follow their conscience when their conscience deviates 

from what the Nation requires, are we not ?

Are you suggesting that they arc all a part of this underground 

clique, as you practically said ?

Mr. J ones. No. 1, T didn't say underground clique. And No. 2. my 

perception is that the leadership of churches may be more committed 

in this regard perhaps than the great bulk of their followers.

Mr. Drinan. That is no answer at all. Are they wrong? Are the 

churches all wrong? Are all the moral and religious leaders of this 

country 100 percent wrong on this issue; is that what you are telling 

me ?

Mr. Jones. Of course not.

Mr. Drinan. You will have to say that if you are consistent, th at 

they are totally wrong 100 percent.

Mr. J ones. T have to die, and I have to pay taxes as a free American. T don't have to say what you put in mv mouth.

Mr. Drinan. You don’t have to. You have to be logical.

Mr. Jones. T will try once again. Congressman.

Tn my travels around the country—and I do this periodically, I 

talk to groups within our organization and out, I seek out groups 

with every shade of opinion that I can possibly reach—amnesty does 

not surface naturally and normally as a conversation, Watergate does, 

the energy crunch or crisis does, and the price of eggs does, what is 

going to happen in the Middle Fast does, but amnesty as an issue just 

does not come through to me. I am not accusing, obviously, our church 

leaders of anything except-----

Mr. Drinan. T hat is totally irrelevant. We deal with a lot of issues 

on this subcommittee th at no one cares about, like prison reform and 

copyrights and patents and no one says that is a big great national 

controversy. This is an issue that affects thousands or hundreds of
277

tho usands of ind ivi duals and th ei r fam ilies , and I think it is just 

erro neo us of you to say th at it is no t an issue. Obviously this is an 

issue upon which 300 or 400 indiv iduals and gro ups wanted to tes tify, 

and upon which we were able to arrang e to have hea rings.

Are you sug ges ting th at we shou ldn ’t even have laws for CO ’s? 

You pra ise those CO ’s. and th at surpris ed me a bit. Bu t you say thi s 

is an art ificia l issue. W hat do you mean an artific ial issue?

Mr. J oxes. Ar tificial in this sense. Ce rta inly there is a problem 

Th ere are a? numb er—who have either gone undergroun d in this, 

country or aboad, x num ber. An d certa inly the y sho uld be d ealt with 

un de r a system , ou r system of justice.

My position is, ev ery Am erican can e xpect h is fa ir day in court, and 

should expect nothing more—or set tle for an ything less, by the way.

Mr. Drix ax. What is an a rtif icial issue ?

Mr. J ones. Well, it is the notion of pu ttin g a fence aro und th is 

grou p and say ing, this is a special band of people we s hou ld look at 

especially. Now. th ere are all sor ts o f people who break all sorts of laws, 

who d on’t quite get this k ind of treatm ent.

Mr. Drix ax. Because the y do n't do it in the nam e of conscience, 

and they do n’t say th at th is Government is wrong, and if the y are 

hoods or ban k robbers o r crooks in the W hit e House then the y get the 

tre atmen t th at is, of course, given out to them . Th is is a certain group,, 

and we certa inl y have to give them special tre atmen t, th at is what it is 

all about. Ye t you say this is an artific ial issue. You ju st say th at we 

all blindly follow the Government, is t hat y our position?

Mr. J oxes. Congressman, as to wh eth er an Am erican should 

docilely follo w the Gov ernment, the ans wer is not at all. Th is is a 

democracy, and every view point obviously should be brought up. I am 

sim ply say ing th at the notion of amnesty has certa inly received at 

least its fa ir sha re of nat ional att en tio n and exposure in terms of its 

intrinsic im portance. Tha t is jud gm ental , of course.

Mr. Drix ax. I )o you think th at the Congress can make some law or 

some dispos ition, and th at we have concurr ent juris dic tio n with 

the ------

Mr. J oxes. Quite cle arly the Congress, or some element of the 

Congress, feel th at the re is a need fo r hearings, or they would not be 

held. I am sim ply sug ges ting to you, sir, th at in view of the tra ck 

record, if you will pardo n th at phrase, of Am erican just ice, to thi s 

date, righ t throug h all the difficulty here in town we know about, f 

think Am eric an justice is doing pr et ty fine. An d the notion of an 

immu nity review boa rd, th at is a s ort o f a stack ed deck situation. An d 

the whole notion th at these people are, if you will, ou r moral s uperiors , 

I find, in all franknes s, gag gin g. I don’t think they need to be tre ated 

separatel y at all. I would like to see ind ivi dual acc ounta bility.

Mr. Drix ax. Wo uld you oppose the Tr um an Am nesty Rev iew 

Bo ard ?

Mr. J oxes. One. I don’t th in k T was sufficiently politica lly conscious at that tim e to even know wh at was going on.

Mr. Drix ax. I mean setting that up now.

Mr. J oxes. I would think in the first instan ce the U.S. district 

attorn eys, wherever they may lie across the land, sho uld be the first 

ind ivi duals to whom the dr af t dixlgers sho uld repo rt, and the n as a 

cou rt of appeal, if you will, this case-by-case mechanism of the ty pe 

Mr. O’Neil alluded to somew hat earlier.
278

Mr. Drixax. Do you think th at Pr esiden t Nixo n should follow 

Presiden t Tr um an 's ex amp le th ere ?

Mr. J oxes. In my jud gm ent, if we find we have a real problem in 

ter ms of numbers, yes; I think I do.

One addition al po int on numbers. It occurs to me th at if we have 

lar ge population s in Toron to, Mo ntre al, Quebec, Vancouver, Stockholm, et cete ra, we would be ge tting some kin d of wor d from those 

gov ernments about thi s large population of displa ced Americ ans in 

their m idst. I am not aware of a ny larg e scale foreig n prote sts publicity on that sit uation.

Mr. Drix ax. They are not likely to wr ite to you, bu t the re is a 

mo nth ly magazine with all typ es of lit eratur e abo ut the whole problem. Even if there were only one ind ividual it seems to me th at we 

shouldn 't say it is not a prob lem, because it only involves one Am erican. If he feels and other peop le feel th at he has been denied justice, 

it seems to me tha t this com mittee and t he Congress h as to take acti on 

to do justice to only one person.

Are you sug gesting th at it is not im po rta nt because there are only 

20.000 or 25,000 people ?

Mr. J ones. I am sug gesting th at I tr ust the justice system of 

this country and ------

Mr. Drixax. Exce pt th at it d id n’t work when Preside nt Tr um an set 

up the Boa rd. If it doesn’t work, the n the Pr esiden t should set up a 

bo ard to review compla ints dow n th e line.

Mr. K astenmeier. The gentle man from New Y ork.

Mr. Smi th . I jus t wa nt to th an k you fo r com ing h ere and ma kin g 

th is state me nt on b ehalf of th e V ete ran s of Fo reign W ars . A nd I d on't 

hav e a ny questions.

Mr. Kastenmeier. T ha nk you.

I have only one comment. I have h eard some crit icism to the e xte nt 

th at we are hold ing hea rin gs on this issue. I observed t ha t t he Vetera ns 

of Fo reign W ars tho ug ht it was enough of an issue to tak e i t up a t its 

natio nal convention and pass a resolution on it, as did the Am eric an 

Legio n. Th ere fore c learly yo ur organiz ation thin ks it is an issue. However, you may differ with o the r groups here.

Mr. J ones. I ad mit the incon sistency. That as a point is well 

tak en. I am simply say ing , yes ; it is an issue. I do believe i t is rece iving 

some artifici al stim ulus. But th at is jud gm ental. The Ve terans of F oreign W ars reso lution is entitled “Oppose Am nesty” which cle arly 

implies th e issue or igi nated elsewhere.

Mr. Kastenmeier. Tha nk you, Colonel.

Mr. J ones. Th an k you very much , Mr. Ch air ma n, Fa th er, 

Con gressm an.

Mr. Kastenmeier. N ext the Cha ir would like to ca ll witnesses rep resenti ng t he Cle rgy a nd La ity C oncerne d. Th ey will be introd uced by 

T ru di Young, who is th e pro gra m dir ector for the or gan ization.

I rem ind you th at the testim ony of yo ur witnesses is lim ited to 15 

min utes , please, because of the num ber of witnesses ye t to be heard . 

J hope that you will all be concise.

Y<m mav proceed.
279

TESTIMONY OF TRUDI YOUNG, NATIONAL COORDINATOR, CLERGY

AND LAITY CONCERNED; ACCOMPANIED BY JAMES CREDLE AND

WAYNE SPENCER

Ms. Young. I ap pr ec ia te th e tim e an d th e fact th at we come at th e 

end of a very long d ay , an d un de r t he g la re o f th e ho t l ig ht s. So I will 

cu t my testim on y, wh ich I ho pe will be includ ed in th e reco rd, al on g 

w ith t he testim on y of those acc om pa ny ing me.

Mr . K ast enmeier. W ithout objectio n, it is so o rdered .

[T he stat em en t of Ms. Y ou ng fo llow s:]

T es tim o n y for Clerg y an d La it y Con ce rn ed , P re se nt ed by T ru di Sch u tz

You ng , J a m es Credle, an d W a y n e Spe nc er

I am Trud i Schutz Young, Program Director of Clergy and Laity Concerned 

(CALC). We are a nationwide network of persons work ing with in the religious 

community. The organization began and grew as a direct response to the United 

States war in Indochina. From the beginning, par ticipa nts in CALC included 

religiou s people at the nation al and local (con gre gation al) level. We represent 

50 local chap ters and a p arti cipatin g membership of over 50,000 persons. We work 

direc tly with persons of all fai ths —'Protesta nt, Catholic, Jew ish—tooth throu gh 

institu tional religiou s struct ure s and at the person al level, trying to express our 

religious h erit age and t rad itio ns throu gh community work and life.

Durin g the “hot-war yea rs” of the Indochina conflict, CALC developed its m inistr y in a vari ety of ways. All over the country there were special church services 

descrying the moral and i>olitical hor ror of the war ; ministers, prie sts, and rab ­

bis spoke out—from their pulpits and at natio nal demonstr ation s—about Americans' responsibility to work for an end to the war. Thro ugho ut the country, often 

in church or synagogu e buildings, we helped to develop a netw ork of dr af t and 

mil itar y counselling, to aid those in need of help as they confronted the dr af t and 

the war. We provided a min istry (financial and jiers onal ) to many of the early 

exiles and dese rter s in Canada and other countries. We worked with many of th e 

other religious and i>eace groups to build the massive dem onstr ation s and mobilizations, in Washington, DC, again st the V ietnam atr ocity .

Continuing our work, we now see our goal in term s of und erst and ing and confron ting America’s use and misuse of power. To furth er this goal we engage in 

programs focusing on the continuing war in Southeast Asia, the need for a full 

amnesty , the role of corpo rations in US foreign policy. We publish a bi-weekly 

newspaper, American Report and continue the development of our grassroots 

field program . We see each of these projects as a handle, an approach, to the 

American power systems we seek to tran sfor m. Together, our programs connect 

in a stra tegy for the religiou s community th at enables us to und erst and our 

relat ionship (a s religiou s persons and ins tituti on s) to the problems we wish to 

help solve and, as we tackl e them, begin to right some of the pa rticu lar wrongs 

in our society.

There is, for example, no universal and uncond itional amnesty for those who 

resist ed the war in Indochin a. US aid contin ues to the Tliieu regime, per pet uat ­

ing and unde rgird ing his military and a prison system which holds severa l 

thou sand civilian prison ers, in violation of the 1973 Pa ris Peace Agreements.

Since CALC came into being in response to the war in Indochina, it was an 

obvious “next step” f or our orga nization to begin w orking towa rd an amnes ty for 

those persons who resisted th at war. We began to talk , national ly and locally, 

abou t the dimensions of our work on t his issue. In doing so we began to recognize 

some of the lessons we had learned as a result of our Vietnam work. Initially, 

our response to the Indochina war was prim arily one of moral outr age: we caw 

it as a violation of our huma n and religious beliefs abou t brotherhood and 

personal dignity, about the righ ts of persons to live and choose the ir own 

personal and political constructs. We believe th at o ur American government had 

no place in the civil difficulties of the Vietnamese (th e people of Indochina in 

gen eral) and und erst and th at our government’s inten tion was not, as it pro-
280

claimed, to “free the Vietnamese” from the exaggerated dangers of communism 

or to perp etua te ideals of democracy, but rather to entrench and develop our 

economic and political inte rests in Southeast Asia. The final resu lt of this policy 

is perhaps best summarized by the US military officer who looked at a village 

destroyed by American fire-power and sa id : “We had to destroy this village to 

save it.”

To understand this reality about America’s involvement In Indochina brought 

many of us to a place where we had to deal with this unprecedented war in our 

country’s history as but one of the more horrendous and public examples of 

America’s foreign and domestic policies and priorities. Seeing this, we began to 

confront the relationships between the military, industry, and the gov ernmen t: 

we understood that it is in the combined inte rest of these institu tions to perpetuate (less publicly, now, since there has been a great outcry in our nation 

against the Vietnam war) a policy of Indochina-like wars.

Such an “Indochina-wars” policy is not unconnected with many of our domestic 

problems. Most simply, the tax dollars that are poured into the use of American 

power abroad are monies that are not being spent to deal with much of what is 

sick and unbalanced in our society at home. But at a much deeper level, there 

is a link between what America stands for abroad and what it is at home.

You as legislators and we as American citizens have long been trying to understan d and deal with the race and class tensions and inequalities which exist in 

this country. I would say to you that it is because these race and economic 

tensions and inequalitie s exist that American can continue the foreign policy 

manifested in the las t three administrations.

I worked for several years as a draft and military counselor with the Central 

Committee for Conscientious Objectors in Philadelphia. In my work there it 

became overwhelmingly clear to me, through the cases that came across my 

desk, that i t was the people of color and lower economic class who are America’s 

prime victims of the war in Indochina. They are victims on several levels. First, 

unlike white people of the upper and middle classes, they don’t have the advantage of education and environment which would have enabled them to know 

about or articu late the qualifications for alte rnative s and deferments from Vietnam service. It was basically the white and advantaged people who saw choices 

in relation to the war and the people of color and lower class who were shown 

once aga in the limitation of choices, due to their situation . For these people the 

military represented a chance for mobility, education, and development. The 

military claims to offer training, pay and benefits. Stru ctured into a society 

where jobs and mobility exist prim arily for the “haves” rather tha n for the 

“have-nots,” the military represented an important, viable option.

For the disadvantaged, principles of “conscience” and “since rity” (criteria 

testing those who applied for conscientious objector sta tus ) meant such basics 

as how can I live my life in the best way possible: how’ can I be with and 

suppo rt my family ; how can I achieve human dignity. And yes, saying somethin g like this on a CO form would probably have enabled many of these persons 

to obtain a deferment and. thus, continue to work on their community’s issues. 

However, we all know of the discrepancies in the way selective service boards 

operated and about the various interpretation s of selective service regulations 

around the country. We also know how unevenly spread was the information 

about qualifying for CO classification. Many young men (indeed, many members 

of the draft boards with which I had occasion to deal) believed that conscientious objector meant eith er “Quaker” or “Mennonite.” Knowing the real legal 

options with in the selective service system was a privilege and a luxury available 

to a very small number of persons.

Thus, if one puts together the unavailability of adeq uate information and 

counselling about alternativ es for the majo rity of young Americans facing the 

dra ft, and the perceived benefits that an already-disadvanta ged person in the 

society connected with military service, it is very clear why many people enlisted 

in the arm ed forces or accepted the call to be drafted.

Once in the military, some people did indeed come to a point where whatever 

benefits they received could no longer be justified in juxtapositio n to their 

killing and, potentially, being killed, in a war that had no meaning for their 

lives back home. T heir dissatisfaction and lack of belief in the cause for which 

they were asked to fight was coupled, for many, with growing frustrations with 

the rigidity and inhum anity of the military structure s in which they were serving. Thus, there was an incredibly high desertion rate and a high degree of
281

petty offenses and misdemeanors which were the soldiers’ response to an intole rable situation .

When CALC came to tal k about and deal with the issues of Amnesty, our 

memory of draft and military counselling was vivid. And we had to see that 

“resistance” to the war was a much broader and more complex issue tha n only 

the forms of resistance of those (basically white and middle class) persons who 

had the options, the education, and the knowledge of choice which led them to 

decide on Canada, prison, or CO . . . or, even college.

And since our definition of “conscientious” had been broadened by our growing understanding of the context in which different people from various classes 

responded to the war, a context which developed out of life-situation s which very 

much affected the ways in which they could or could not say no to killing and 

being killed—we could not leave this understanding behind when we spelled 

out the meanings of amnesty. We had to understand that “conscience” is not 

tested by a person’s use of our, basically white and middle class “church” 

language and action-response. We had to know that people come from different 

places, and act accordingly.

For all of us amnesty means some form of reconciliation. Indeed, our society is 

badly riven. We are a divided society economically and racially, as I have already 

pointed out. We are furth er divided by an American jieople who have grown to 

hate the war in Indochina and. at the same time, desperately want to find some 

kind of honor in the country where we live. We are also divided because of the 

inte rnal results of the war iiere, in America. People who fought in the war, the 

veterans, are unable to get jobs because of had pa pe rs: they are unable to receive 

many of the veterans’ benefits such as medical treatment, education, housing, 

and legal assistance. They who fought the war bear an ongoing stigma as a result 

of fighting in th at war.

We all, I think, have a duty to resto re more unity to this country of ours. The 

civic duties tau ght by l>oth Judaism and Christianity are simple. We are to carry 

the good tidings to all who are afflicted, to hind up and comfort the broken-hearted 

and all who mourn, and bring recovery of sight to the blind. We are told to proclaim release and liberty to the captives, to open the prisons of those who are 

hound and oppressed. These duties, I would insist, are the very essence and core 

of the social con trac t under which we live. And they command us, regardless of 

who or which party occupies power. And it’s these duties, which, if we fulfill 

them, lead us to proclaim the need for a universal and unconditional amnesty as 

the only justice that could exist with in thi s country for those who resisted the 

war in Indochina.

Rut in seeking eith er justice or reconciliation, or both, if we can, we cannot 

make meaningless the acts that have produced the pro blem: the acts of government and the acts of resistance. That is to say, we must, face the fac t th at the 

government commanded and men disobeyed. And this oceured at the ultimate 

level—'Where government commands men to kill and he killed unjustly. And I 

thin k we, in our time, are being asked by history to say what are the limits to 

such commands.

As a national state we have become a gre at killer. We are killers abroad, with 

our Indochina-wars policy; and we are killers at home in terms of the social 

stratific ation which enforces our ability to make such wars. There must come a 

day when this conceit ends. Or there will come the day when humanity ends.

Amnesty would he a life-affirming measure of not only reconciliation hut also 

a movement tow ard the kind of justice and equality which this society so desperately needs. I t would signify a reversal of the now obsolete prerogatives of the 

sta te to intervene in young peoples’ lives, and to dominate them for its own 

purposes.

Is the guilt for the war in Vietnam common to all of us? There are many arguments against the idea of universal guilt. Knowing them, I still must say that for 

this wa r we are all to blame. All of us, that is, except precisely those who bear 

the punishment for i t : the young, the poor, and the non-white. And it was from 

the ranks of this group of people tha t there came the men and women who said 

“no,” who went to prison, into exile, dropped out of sight, made the ir sep arate 

peace by desertion or resistance within the military. They with draw from the 

killing: and by so doing they added a fraction to the survival of life—and by so 

doing they subtracted a fraction from the sta te’s freedom to destroy and kill at 

its will.

And this is true, regardless of the ir motivation. Let us not lay once more on 

young men’s lives the dead hands of burea ucracy, this time, probing, according

31-658—74-----20
282

to its norms, for their conscience. What an awful pretense and presumption, as 

it has always been, that the sta te can determine what is and what is not a 

conscientious act. I can thin k of hardly any worse outcome of the amnesty question than the imposition of tests of conscience and motivation, administered as 

they would have to be, by bureaucracy. We a re all to blame for this war. And, 

therefore, who is qualified to judge? Let the men who were court-martialed and 

administratively discharged with less than honorable discharge ratings be given 

freedom and clean records. Their lives have been mangled badly enough already 

by state policies that were none of their doing and that were, themselves, on the 

thin edge of legality, if even that.

Our local chapters around the country and the people in churches and syna ­

gogues who rela te to us more broadly, are all grappling with what we have 

learned, what we know, and what we can begin to do to change some of the 

wrongs and divisions among us as a society. We must find ou t who in our communities are the men and women affected by the Vietnam era. We mu st find out 

the kinds of disabilities they have and continue to suffer. In addition we must 

work to educate both ourselves and the broader American public about the 

broader message inherent in the word am nesty : a message which speaks of 

racism and classism and division, and a message which compels us to deal with 

those issues. Thus, amnesty, when it is granted, will be one step toward the 

healing and reconciliation the country so sorely needs.

I am enclosing as p art of our w ritte n testimony, two documents. One is a report 

from Minnesota CALC, who have done a statistical study of Minnesotans who 

need amnesty. As a result of their study, Minnesota CALC has discovered that 

there are 11,895 persons who will benefit from a universal and unconditional 

amnesty in that state alone.

Secondly, I am introducing “Backgrounds: Other Than Honorable His 

charges—Problems and Prospects for Change.” This document was released by 

the Vietnam Era Veterans National Resource Project and the National Council 

of Churches. It is not a comprehensive study but does provide a general outline 

and sketch of the situatio n.

I must close with one final comment. I find it a source of both anger and considerable sadness tha t among those you have asked to testify before you, in 

your quest for a way to deal with the issue of amnesty, there is almost no one 

(if indeed there is anyone) who represents the people of whom we speak when 

we ta lk about amnesty. If anyth ing I have said in my prese ntation is to be taken 

seriously, if we are to work seriously, then our seriousness needs to extend to a 

hearing of those people who are directly affected by the question of amnesty. It 

is for this reason that when your committee asked me to testify, I explained that 

I could only testify if I were able to bring with me, to present the burden of the 

testimony, persons who are potential recipients of a full amnesty. The testimonies of two of these persons follow mine, as pa rt of the Clergy and Laity 

Concerned statement.

Min n eso ta n s W ho Need A m nest y

Since the beginning of our Minnesotans for Amnesty Campaign in Jun e of 

1973 we have had many requests for statistics on the number of Minnesotans 

who would be affected by a universal, unconditional amnesty. In response to this 

a Research Team has worked for the past four months obta ining accurate 

sta tistics where possible and estimating Minnesotal figures from total U.S. 

figures where sta te category breakdowns were unavailable. The following report 

is the re sult of th at research.

SELECTIVE SERVICE VIOLATIONS (DRAFT RES IST ERS) 1

Research methods

1968-1969 figures were obtained from the records of Minnesota Draft and 

Military Help.

Sept. 1970-Sept. 1971 figures were obtained from the card files of the U.S. 

Clerk of Court offices in St. Paul, Minneapolis, Dulu th (the three federal courts 

in Minnesota). Names of resisters for this period had previously been obtained 

from the U.S. Attorneys’ office by Minnesota Draft and Military Help.

1

 People wishing statistics on draft reslsters in their area can get them from the 

Minnesota Clergy and Laity Office, 122 W. Franklin Ave., Minneapolis 55404 or call ns at 

(612) 871-8033. Please include the number of the judicial division you are in (ask vonr county courthouse).
283

Jan.-August 1970, Oct. 1971-1973 figures were obtained from the books of 

docket sheets in the U.S. Clerk of Court offices in St. Paul, Minneapolis, Duluth. 

(These sheets are summaries of each federal grand jury indictment.)

Result s

Total federal indictments 1968-1973: 673*—Dismissals, 344; Acquittals, 69; 

Convictions, 212 ; Unconcluded, 48.

CIV ILIAN PROTESTERS ARRESTED FOR AN TI-WA R ACTIONS

Research method

In this category we gathe red information from various people in the Twin 

Cities community and wrote letters in 12 communities outstate. While we cannot 

claim 100% accuracy we do believe these figures are very close to the actual 

numbers.

Res ults

Total civilian protester arrested fro m 196S-1973: 280*—War Tax Resisters, 4; 

Draft Board Actions, 10; Twin City Civil Disobedients, 79; Outsta te Civil Disobedients, 181; Marshall, 166; St. Johns University/St. Cloud, 21.

MILIT AR Y DESERTERS

RESEARCH METHOD

Representative Donald Fra ser inquired at the Departm ent of Defense and the 

Veterans Administration and was told that information on dese rters from the 

military was not available by sta te.

The U.S. figure here is from the Departm ent of Defense. According to The

Almanac of American Politics, 1974 Minnesota is 1.88% of the total U.S. population. The following statistics are based on these figures.

RE SU LT S

U.S. total military deserters. 32,000.

Total Minnesota m ilitary deserters, 602*

LESS TH AN HONORABLE DISCHARGES

RESEARCH METHOD

Representative Donald Fra ser inquired at the Depa rtment of Defense and was 

told that information on less th an honorable discharges from the m ilita ry was not 

available by state.

The U.S. figure is from the Depa rtment of Defense. Minnesota sta tistic is figured as above.

RESULTS

U.S. total less th an honorable discharges, 450,000.

Total Minnesota less than honorable discharges, 8,460*

NONREGISTRANTS

RESEA RCH METHOD

U.S. Department of S tati stic s estim ates that 2 million men turn eighteen every 

year. In a telephone interview in Jan. 1974 Col. Knight, head of Selective Sendee 

in Minnesota reiw>rted that at least 1% of Minnesota men turning eighteen each 

yea r didn’t register with Selective Service. The following sta tistics reflect these 

figures.

RESULTS

U.S. male population turned eighteen 1968-1973—10 million

Minnesota male population turned eighteen 1968-1973—188,000

Total Minnesota nonregistrants 1968-1973—1,880* (This may be a conservative 

figure because Byron Pepitone, head of U.S. Selective Service estim ated a 10% 

rate of n onregistration (X.Y. Times, June, 1973)

Ms. Young. I wish to stre ss th at the work th at we out line in the 

testimo ny and o ur points on amne sty which we ex press, an d the reasons 

for it, are to be tak en seriously .

4

 Total Minnesotans who will benefit from universal, unconditional am nesty : 11,895.
284

I th ink we also need to take serious ly those people who are th e p ote ntia l recipie nts o f the kin d of amn esty we talk a bou t. I find it a source 

of some anger and some sadness th at v ery few if any people who are 

recipient s of am nesty are able to be here, eit her because th ey can ’t come 

back to this country or they are in prison , or because the committee 

could n’t find them to ask them.

An d, the refore , I would like very much fo r cle rgy and laity to be 

rep resented by tw o pers ons who would be recipient s o f such kin d of an 

amn esty. I would like first to introduce J im C redle from Newark, X .J.

Mr. Credle. My name is Jame s Credle. I am cu rre ntly the dir ector 

of the veterans edu cation and tra in in g services for the*Newa rk Colleges of Ru tge rs, located in Newar k, N.J. I was dr afted into the A rm y 

in October of 1965 and honorably discha rge d in 1967. My invo lvem ent 

and work with vete rans b egan du rin g my first semester a t the R utg ers 

Law School. By the end of the semester. I was convinced th at my work 

in assisting vete rans who lived in the New ark me tro politan area was 

by fa r more i mp ortan t t ha n my pe rsonal goal of c omple ting law school.

How ever, it was in Vie tnam on the daily sea rch -an d-d estroy missions conducted by my unit, the 196th Light In fa ntry, where I began 

to un derst and that the war was rea lly about su pp ortin g an un represen tative dict ato r and his regime a nd not about fre ein g th e V ietnamese 

people from the clutches of communism.

I began to understand it more clearly when I w ould ta lk to the Vi etnamese sold iers and they seemed as unc lear and as no nu nd ers tan din g 

as I abou t the reasons why we were figh ting. But I saw it more in th e 

faces of the old men and women as the y looked at me and the other 

sold iers w ith a look of deep hostility and m istrus t. You see, as a member of the medical platoo n of the He ad qu arters Com pan y 2/1 Ba ttalion , I parti cipa ted in wha t became know n as “Me d Ca ps” or visits 

into villages to offer medical aid to the villagers.

I began to be fu rthe r trou ble d within my own head when in the early 

part o f 1967, sh ort ly before I was to return home, I picked up a newspa pe r while o ut on a se arch-and-destro y mission and read a very vivid 

descr iption o f the 1967 riots as the y were occurring in New ark. I can ­

not describe to you how it felt to be dodgin g b ullets in V ietn am while, 

at the same time rea din g new spapers and letter s from fam ily and 

friends abou t the death a nd des truction caused by riots at home.

A t this tim e I had less than 3 months left before I would be dis ­

charg ed and sent home. My imm edia te thou gh ts were: “W ha t? 

An othe r wa r.” La ter , throug h the bullets, the bombs, the mo rta rs, th e 

death , the destruct ion , the pickin g up bodies of the dead friends and 

the band aging of the wounded—my imm ediate need became to first 

survive th is, then w orry ab out the war at home.

It is t he w ar at home which I am here to speak about tod ay. A war 

th at began within the earlie st str uc tur e of thi s country and continues 

th roug h today. It is i mpo rta nt to begin the specifics by des cribin g f or 

inform ati on al purposes a general un derst an ding of how the militar y 

molds th e i ndividual or group in order to fit ce rtain expecta tions. The n 

I will describe how thi s lead s to the giv ing of “less than honor able” 

discha rge s to a g rea t many people from the Vietn am era.

How ever, befo re doing t his I think th at it is im po rta nt to note certain fac ts relevant to Vietnam vete rans who hav e “ho norable 

discha rge s.”
285

(1) The GT bill benefits for education are highly inadequate and 

generally nonexistent in areas such as housing and business loans. As 

the Vietnam era veterans look around them today they find no gr atitude and no respect. They find no jobs and no help. They find that they 

can’t afford education or training. They find themselves wandering 

aimlessly, searching for the life they had. They are America’s 

albatross.

(2) The present administration attempted to cut back on many 

benefits th at were previously available to disabled veterans, many of 

whom were maimed or rendered permanently disabled during the Vietnam war. Even the current budget provisions for hospital and outpatient care is extremely insufficient. Although Vietnam era veterans 

account for nearly 20 percent of the participants in all of America’s 

armed conflicts, they receive only 3.7 percent of the Veterans’ Administration’s expenditures through June 1972. By comparison, World 

War 11 veterans account for 40 percent of all participants, and they 

have received nearly 50 percent of the Veterans’ Administration's 

expenditures.

(3) President Nixon has stated a desire to aid in obtaining opportunities for veterans; but veterans with whom I work exemplify the 

generally climbing rate of unemployment—at an alarming rate, for 

veterans. According to Labor Department statistics for December 1973, 

of the 4.G million Vietnam era veterans now between the ages of 20 

and 29, a tremendous number are unemployed, with the rate for minority veterans, 20 to 24 years old at 13.2 percent in the third quarter of 

1973.

In the early part of my Army career I am reminded t hat veterans 

like myself were molded into soldiers through the very real cohesive 

force of fear combined with humiliation in order to produce obedience. 

Throughout my training I, like others, was taugh t all of the “punitive” 

but few of the “redress of grievances” charges adhered to by the military. We were barraged with “punitive” charges of which we would be 

convicted if we did not learn not only to obey orders individually but 

also, we were expected to pressure dissident members of our squad so 

tha t they would be obedient.

For example, by not having highly shined boots, one could be given 

an article 15—a punitive charge—and relieved of a weekend pass. The 

point is that afte r serving in Vietnam for a period of time, men learned 

not to fear those who were giving unrealistic orders. Squad and platoon 

leaders, recognizing this, saw th at their only recourse was to get rid 

“at any cost*’ of those who were often described as “troublemakers.” 

Examples of troublemakers to many sergeants or platoon leaders were :

(a) individuals who voiced an opinion and exhibited knowledge of 

their legal rights;

(b) a small group of minority veterans who would congregate 

together;

(c) individuals who asked knowledgeable questions during instruction sessions; and

(d) simply anyone who the sergeant or platoon leader did not like 

for some unstated, yet obvious reason.

I have witnessed a situation where a lower ranking NCO failed to 

salute a car (which belonged to a commissioned officer) he did not see, 

but was given an article 15 anyway. Once you became identified as a
286

troublemaker, for whatever reason, this label followed you wherever 

you went. Thus, harassment and bullshit, details were designated for 

these people, making their already troubled understanding of what 

was happening to them during the Vietnam era much more difficult to 

deal with. This class of veterans is one of the categories of Vietnam 

era men and women for whom I ask universal and unconditional 

amnesty.

My simple reasoning is that because the Vietnam war was unpopular; because many of the Vietnam veterans are not the rich, the 

powerful; and the articulate; because the veterans of this war have 

been unable to organize on their own behalf (because of being labeled 

drug addicts, baby killers, and displayed on the front pages of newspapers as criminals, whenever a Vietnam vet commits a crime) : 

because many Vietnam era victims are deserters or draft resisters in 

exile or underground; because other Vietnam era victims served prison 

sentences for conscience-sake (refusing to kill and be killed) and, thus, 

are denied many of their civil and legal rights; because many civilians 

resisted the war and are serving sentences or facing charges; and 

because there are still many thousands of nonregistrants and resisters 

who face indictment and imprisonment under the present legal/ 

judicial system; and, finally, because there are many veterans with 

other than honorable discharges—so many of our young people’s lives 

have been destroyed or at least altered in such a way that they are 

destined to spend the rest of their lives in utter discontent and isolation 

from the rest of the society.

Each of these classes of people resisted in a particular way. because 

of where in the society they came from and at what point in their lives 

they became aware of the destruction and manipulation which was the 

Vietnam war. Each of them was saying “no” in his or her own way. 

But all of them 'were saying their “no’s” to the same war and warmaking systems. A universal and unconditional amnesty would bring 

about a general, nationwide concern for aid in all forms to all peoples 

who have suffered from this war.

It is no wonder that statistics indicate that nearly 26 percent of Viet­ nam era veterans have used drugs since returning from the war. In 

addition, 30 percent of all male prisoners in State and Federal penitentiaries are Vietnam era veterans. Finally. 560,000 Vietnam era vet­ erans are marked for life by a military discharge system of codes, 

which defames one’s character and are unsubstantiated by fact or trial. 

For this class of more than half a million veterans, amnesty would 

have to include simply one discharge category, without a “SPX code.” 

since, in many instances, this coding system prevents employment and 

denies VA benefits. The high rate of imprisonment and drug usage 

among Vietnam veterans can be attributed to the fact that few alternatives are granted people who are already without resources.

It is mainly in your hands to extend broad relief and end the suffering for the many young Vietnam-era-affected people.

For some, amnesty will mean higher education possibilities; for 

some it will mean employment opportunities: for some, housing; for 

many, amnesty will mean the medical and psychiatric help necessary 

for themselves and their families, due to the personal impact on lives 

of the Vietnam syndrome: and for all categories of those affected by 

the issue of amnesty, it will mean a full restitution of all civil and legal 

rights and liberties.
2S7

At present the alternatives and opportunities listed above (which 

spell ont our meaning of a full and complete amnesty) do not exist for 

our Vietnam generation. A gain: it is up to you, the Congress.

If universal and unconditional amnesty is not granted, the facts 

show tha t only those with resources will benefit. Current statistics show 

that those veterans attempting to upgrade their discharges with legal 

help, and those who appear before the review board, have a clear 

advantage in obtaining an upgraded discharge. Since two out of three 

people with bad papers are lower class and nonwhite, and since these 

are precisely the people who have neither the money nor the ability to 

obtain legal help necessary to effective discharge upgrading, it is clear 

that the present upgrading process manifests the racism and economic 

prejudice of our society and the military.

In the final analysis, for veterans and others who would benefit from 

a blanket amnesty, your refusal to act on the amnesty issue will continue to leave them as “wasted people” or “third-class citizens.”

For veterans from previous wars, war was hell. And returning home 

was a time for healing and local and national celebration of unity. Fo r 

America’s Vietnam era victims, war was hell—but many cannot return 

home; and even for those who are physically home, the hell continues. 

In an address t-o the Nation, on March 24, 1973, President Nixon said 

of the Vietnam era veterans:

We must demonstrate the gra titu de we feel by the actions we take . We must 

honor them with the respect they have earned and the affection they deserve.

Clearly, neither Mr. Nixon nor the American public are living up to 

this injunction.

I say to you the price of Vietnam is too high a price to continue paying. The war is not over—America’s war is still raging in Vietnam and 

in our society. And unless full and complete amnesty is granted, the 

injustices of the Vietnam era will continue to be Ixirne, in this country, 

by the young and disadvantaged.

Ms. Young. Wayne Spencer from East St. Louis, Ill. will give the 

next statement.

Mr. Spencer. Fir st of all I have been listening to this question of 

amnesty-----

Mr. Kastenmeier. You have a 3-pagestatement?

Mr. Spencer. Yes. I have a short statement, concerning what led up 

to my bad discharge.

Mr. Kastenmeier. You may proceed, Mr. Spencer.

Mr. Spencer. Fir st of all, I would like to say, I am from a black 

minority group. Where I live we are affected by poor income, low 

income, inadequate housing, inadequate medicare, and undereducated 

people.

First of all. I think the military should consider the fact that people 

from these minority areas are not really for military war, especially 

the Vietnam war. And when this fact is considered, then we can recognize th at Vietnam era veterans shouldn’t have these undesirable discharges thrown upon them.

At-this point I would like to present a brief statement of how I was 

affected by the Vietnam war, and what led up to my bad discharge.

Fir st of all. my name is Wayne Spencer. I am a 25-year-old Vietnam 

era veteran living in East St. Louis, Ill. I hold a less-than-honorable 

(general) discharge. I wa<? raised in a family of five, and I went to 

grade school and finally finished the 12th grade of high school.
288

Aly social-economic class was middle-class poor. I helped supp ort 

my fam ily along with my broth er a nd m y father. Aly m oth er did n ot 

work . From time to tim e we were on gen eral assista nce aid.

After I gr adua ted from high school, a t the ag e of 1 8,1 enlisted in th e 

U.S. X avy fo r three re ason s:

(1) To avoid bein g dr afted because I did not tak e to the idea of 

fighting in Vietn am and perha ps losing my life. I am no t a coward, 

but three of mv close fri en ds were killed ju st before I entered service, 

and I ju st could not see any justifiable reason f or figh ting .

(2) I was to he m arr ied soon, a nd the lady I was going to m arry was 

ca rry ing m y son. I thought being in service wo uld help me develo p the 

skills I needed to su pp or t my fam ily.

(3) I wanted to get away fro m home and p erh ap s fin d a no the r place 

in t he U nited States to live.

I rea lly didn ’t want any par t of the m ilitary. But af te r talking it 

over with my rec rui ter, my morale was boosted and my hopes were 

high. The next th in g I knew, I ha d become a tool fo r the U.S . 

Governm ent.

Afv firs t duty sta tion was hor rible. I di dn ’t get the du ty sta tion of 

my choice, like my rec ruite r had promised me in h is bouq uet of fantacism. They stationed me in Pe ar l Harbo r, Ha wa ii, aboard a World 

W ar IT des troyer wh ich was about ready t o fal l ap art. They gave me a 

chipping h ammer and broom, a pa int bru sh, and a can of pa in t every 

day fo r 6 m onth s. I did not come in the service to become a paint er. 

I wanted to become an electri cian. After ma kin g a numb er of de ter ­

min ed att em pts to pursu e my intention s of what I had come in for , I 

fina lly came to t he conclusion th at m y rec ruite r ha d sold me down the 

riv er an d t hat the m ilitary w asn’t inte rested in w ha t I w ant ed bu t only 

in wh at they wanted me to do.

By t hen I had become discou raged, disi llus ioned, a nd h ad no one to 

tu rn to bu t my loved ones at home. By th is time my wife had given 

birth to my first son. Un fortu na tely, I c ouldn’t be there when my son 

was born. Th is is when I decided I would send fo r my fam ily to live 

with me in Hawaii.

Bu t we had come back from a 6-month west Pacific cruise, and I 

ha d manag ed to save enough money to go home first, on leave. Sen din g 

fo r my fam ily only pre sented more problems. I could no t su pp ort my 

fam ily on the income I was receiving fro m th e Na vy.

Aly second son was bor n in Ha waii. Since I ha d missed my first 

son's bi rth, I was determ ine d th at I was n’t goin g to miss t his one. So 

I pu t in a request to get leave, since my ship was going o ut on a 10- 

day cruise. Aly req uest was denied, and I missed shi p’s movement delibera tely. AIv CO had told me th at the Xavv comes first and my fam ily 

second. As a result, I suffered a forfe it in pay a nd 14 day s’ restriction. 

I ha d no choice but to send my fam ily home.

I was told bv my superio r CO th at I could get a cha nge in duty 

sta tion af te r 2 years, with hopes of ge tting sta tio ned closer to home. 

But instea d the y tra ns fe rred me to anoth er ship very much like the 

one I was on. This, too, was in Pe arl Ha rbor. All this happened af te r 

I had consulted a chaplain and told him of my problems.

Th ings weren’t looking up fo r me at all. Aly atti tu de about the m ilita ry was way below sta nd ards. I only wanted out. I began drinking , 

smoking dope, and drop ping pills. I was constan tly repo rti ng late for
289

duty. I was n’t prop erl y counseled, and my problem s were stea dily 

ge tti ng worse and ste adily ge tti ng ignored. La ter , I was busted with 

two joints and processed for a gen eral discharg e af te r 3 y ears and 9 

mo nths of service (th at was almost my 4 years’ enl istme nt) .

Adjus tin g back in to society wasn’t easy. 1 couldn ’t find a job. (I had 

“bad papers.” ) Th is caused financial p roblems for my fam ily and la ter 

resulted in a divorce. I am sep ara ted f rom my w ife, now, and h ave two 

children to support.

I am one of th e ma ny V ietn am era veterans in Am eric a who suffers 

from a bad discha rge. In my opinion, the mistrea tm ent I received in 

the military is d ire ctl y connected wi th the reasons for and t he ways in 

which Am erica con ducted its Vi etn am war. I was in the Vietn am e ra 

military which was not fig hting fo r an ything I could believe in and 

was not in any way seeing or deali ng with me and my needs. My 

respo nse to the Vietn am war and to the military which fought th at 

wa r is what caused me to get bad pape rs.

An a mnesty th at is just (un ive rsa l and unconditio nal) must include 

peop le like me who were tra pp ed int o needing and volun tee rin g for 

the Vietn am era military for sur viv al and the n trap pe d by wh at we 

experienced in the military. An am nesty mu st also deal wi th people 

who are su ffering from a dd ition al, p erm anent social pre jud ice an d d isadvanta ge as a re sult of the bad p apers we received.

Th is concludes my s tate ment.

Mr. Kastenmeier. Th an k you, Mr. Spe nce r and Mr. Credle, for 

statem ent s o f your own p ersonal involvement in the m atters which you 

feel should be affected by some form of amn esty .

I)o eit he r of my colleagues have any questions?

Mr. Smit h. Yes. I would like to ask Mr. Spe nce r and Mr. Credle. 

you have talked abou t the fac t t ha t any am nesty t hat m ight be adopte d 

ought to also cover peop le who had a b ad discha rge o r a discharg e on 

less-than -honorable cond it ions.

Do you appro ve also, or are you fo r a gen eral amnesty—you both 

enliste d in the arm ed services—d id you appro ve of an amnesty for 

those who decided th at they d idn’t wa nt to serve in the A rm ed F orces 

and to ok off ?

Mr. Credle. I will answer for my self. I was d ra fted into th e service. 

I did n ot enlist. I appro ve it. because o ther wise b asically—I have this 

wr itten in my statem ent —the reason why I appro ve unconditio nal 

amn esty to include othe r than hon ora ble discha rges and all peop le 

affected by the wa r is because to do it any other way would just contin ue what h as a lre ady gone on in the first place.

I am sure yo u are awa re of the fact th at in our judicial proceeding s, 

if you can’t get lega l aid. if you don’t have someone with you, if you 

don’t hav e th e p rope r ki nd of resources or the pro pe r types of resources 

in orde r to at least be equal to y ou r c ou nterpa rt, th en you are at a d isadvanta ge in terms of ap peari ng, a nd the ch ances of you r adju dicatio n 

being w orked o ut fav ora bly are greatly reduced.

An d. of course, you always have the issue in terms of bla ck and 

mino rity people, the issue of racism always creeps up in any kind of 

proceeding. If i t is n ot done th is wav, it is j us t g oin g to continue wh at 

has alr ead y gone on in this cou ntry. An d I don’t know how be tte r to 

deal wi th it. Once you begin to say. thi s is bad on th is p oint, a nd t his 

is bad on this point, you are ju st d ividing the cou ntry. An d it is sad
290

when I sit here and listen to so many making tha t point. It is not just 

the Vietnam veterans. The young people in this country are still 

affected. So it is just not 500,000, it is more like 5 to 6 million. People 

don't seem to realize that, and I can’t understand that. Because when 

you say one person is affected, you are not only dealing with tha t person. you are dealing with everyone who comes in contact with him.

Mr. Smith. Did you have an honorable discharge?

Mr. Credle. I was honorably discharged from the Army.

Mr. Smith. And were you not ?

Mr. Spencer. No ; I received a General discharge.

Mr. Smith. Thank you very much.

Mr. Kastenmeier. Thank you very much for your appearance today.

Mr. Credle. May I say something?

There is an important paper on other than honorable discharges 

which has been released by the Vietnam era veterans national resource 

project. And I think it is an important document.

Mr. Drinan. May I jus t say that I want to thank you and Ms. Young 

for these extraordinary documents. And it will be very helpful. And 

I want to thank you for the testimony.

Mr. Kastenmeier. You are referring to a paper entitled “Background : Other Than Honorable Discharge” ?

Mr. Credle. Yes, sir, released by the area veterans national research 

project.

Mr. K astenmeier. Without objection that will be received as part 

of the record.

[The document entitled “Backgrounds: Other-than-IIonorable Discharges—Problems, and Prospects for Change” follows:]

B ackgrounds : Oth eb-Than-H onobable Discharges—P roblems, and Prospects

for Change

[Released by Vietnam Era Veterans’ National Resource Project, Emergency 

Ministries Concerning the War (National Council of Churches)]

(N ote.—This is a preliminary survey of the problems and prospects associated 

with other than Honorable discharges. It is not a comprehensive study, and is 

being circu lated only to provide a general sketch o f the situation. Contact us with 

any additional information that, you may have, and let us know if this paper 

includes any major fac tual erro rs.)

OVERVIEW

Roughly 5.7% of the 7,490,088 Vietnam era vete rans have other-than-H onorable 

dis charg es:

STATIS TIC AL SU MM AR Y: OTHER-T HAN-HO NO RABLE DISCHARGES FOR VIET NA M ERA VETERANS, FIS CAL YEARS 

1965-73

General Un desirable Bad conduct Dish on orab le

19 65 ..................... ................................................. ........................... 25 ,477 13,17 8 2,47 8 312 19 66 ....................................................................... ........................... 20,883 10, 544 2, 262 273 1967 .........„ ..................................................... ......... ................. 19,56 2 99 ,920 3,04 8 384 19 68 ______ __________ __________________ _____________ 18,26 0 11,650 3,64 5 402 19 69 ...................................................................... .......................... 18,05 3 11,20 8 3,5 62 187 1 9 7 0 .. ................................ .................................. ........................... 27,534 22, 537 3,9 56 383 197 1......................................... .............................. ........................... 38, 376 29,139 4,6 43 326 1972 ....................................................................... ............. ............ 43,419 40 ,018 4,1 67 356 19 73 ....................................................................... 18,16 5 14, 725 1,531 242

To tal (42 4,8 05) .................................... ........................... 229 ,79 2 162 ,91 9 29,29 2 2,865

So urce : Figures fro m De partm en t of Defense charts.
291

A dispr opor tionate percen tage of the vete rans holding these discharges are 

minority group veterans and vete rans with less tha n high school educations. 

These discharges sub stan tially incr ease the problems many of these vete rans already face in finding employment, ade qua te housing, and adeq uate medical care. 

In adding thi s addi tion al burden to the lives of people who alre ady face welldocumented discrimination, other-than-Honorab le discharges often reinforce 

cycles of unemployment, disease, despair, dru g addictio n, crime, and imprisonment.

A movement of Vietnam era veterans’ self-h elp projects , conceived, staffed, and 

directed by Vietnam era vete rans themselv es has aris en over the past sever al 

years to cope with the unique difficulties veteran s have broug ht home from this 

cen tury ’s most unique and disillu sioni ng war.

Many of these proje cts are ini tiatin g programs to counsel vete rans with otherthan-H onorable discharges on the proce dures by which they may appeal to have 

those discharges upgraded. Along with severa l groups who have been involved 

with variou s forms of d raf t and/o r milita ry counseling in the past, some of these 

progra ms have begun to tie into projects in St. Louis and Washington, D.C. 

which provide legal research, analy sis, and/o r repr esen tation for individual appeals. These local programs and nation al projects are formin g the nucleus of an 

evolving network of discharge upgrade counselors which may be able to offer a 

sub stan tial alleviation of the penalties which vete rans with other- than-H onorable 

disch arges are suffering.

Ultimately, however effective thi s discharg e upgrade counseling may become, 

the problems revolving around other-than-Honorab le discharges need systemic 

solutions. Although a handful of Sena tors and Congresspersons are inte rested 

in the issue and have recent ly subm itted some potentially far-reac hing bills, general inte rest is low in Congress at this time, and the prospects for new laws or 

policies are dist ant. However, some vete rans self-help proje cts and some coalitions of civil rig hts groups are beginning to discuss ways in which they might 

begin to generate grass roots pressure for new legislation. Some of these groups 

are also trying to establ ish progra ms for bringing preced ent-setting challenges 

to armed forces’ discha rging and discharge-revi ewing policies into Fed eral Court.

I. BACKGROUND OF TH E PROBLEM 

A. The Meaning of Discharg es

1. Adm inistrativ e.—The Honorable, General, and Undes irable discharges are 

given by adm inistra tive heari ngs convened by enlisted persons’ commandin g officers. The arme d forces consider the General Discharge to be “und er honorab le 

conditions”, and the Undesirable Discharge to be “unde r conditions othe r tha n 

honorable.” Enlisted persons are not presen ted, and often are not present, at 

such adm inis trat ive hearing s. They have no opportunity to confront and crossexamin e witnesses or to challenge wr itten evidence, and no verb atim records of 

the hearings are kept.

2. Puni tive.—The Bad Conduct and Dishon orable discharges are issued as 

punishmen ts by cou rts-m artia l. The Bad Conduct Discharge is issued by Special 

courts-m artial, the Dishonorable by General cou rts-m arita l. The Bad Conduct 

Discharge is considered to be “under conditions other tha n Hono rable” ; the 

Dishonorable Discharge is considered to be the only tota lly “dishon orable ” kind 

of discharge.

Although the re are many valid criticism s to be made of cou rt-m artial procedures, they do provide an order of due process which is not present in administrat ive h earings. Enlisted persons are repre sente d by counsel, do have an opportun ity to confront and cross examin e witnesses, and have access to a verba tim

record of the hearing . There are also provisions for appealing cou rts- martial 

decisions and cou rts- martial sentences, while there are no such provisions for 

appea l with in th e military cou rts for adm inistra tive hearings .

•5. Separat ion Codes.—All discharge paper s (DD Form 214’s) include sep aration codes (called “Separation Prog ram Numbers” by the Army and Navy, “Separati on Designation Numbers” by the Air Forc e.) Essen tially , these codes sta te 

the reasons for the discharges. In theory, these codes are confidential. But, unt il 

thi s year, they have been readily avai labl e in published arme d force s regu lations —and widely dist ributed, often in pa rtial listings, in papers, manu als, and 

arti cle s contin ued in everythin g from Red Cross and V.F.W. service manuals to
292

the American Servicemen’s Union’s Common Bond. The following is one such 

partial lis tin g:

CHART NO. 1. SEPAR ATION CODES1

Favorable codes

201 ETS (Expira tion of Term of 219 Erroneous induction

Service) 220 Marriage

202 Exp iration term of enlistment 226 Dependency

203 Exp iration term of active obligated 227 Hardship

active service 229 Sole surviving son

203 Released from active duty, tra nsferred to reserves

Unfavorable codes

21U Failure to demonstrate adequate ranting court-martial

potentia l for advancement 

221 Pregnancy 

223 Minority (Under age)

241 Resignation in lieu of reduction for 

misconduct or inefficiency

242 Resignation for the good of the 

service

243 Resignation in lieu of board action 

when based on unfitness

244 Resignation in lieu of board action 

when based on unsuitability

245 Resignation in lieu of separation 

for disloyalty or subversion

246 Discharge for the good of the 

service

247 Uns uitab ility—“multiple reasons”

248 Unsuitability

249 Resignation (homosexual)

250 Punitive discharge, Class I homo* 

sexual—general court-martial

251 Punitive discharge, Class II homosexual—general court-martia l

252 Punitive discharge, Class I homosexual—special court-martial

253 Homosexual (board action)

255 Punitive discharge, Class II homosexual—special court-martial

256 Homosexual, acceptance of discharge in lieu of board action

257 Unfitness, homosexual acts

258 Unfitness, “multiple reasons”

260 Unsuitability, inaptitude

261 Ina ptitud e

262 Unsuitability, enuresis (bedwetting)

263 Enuresis

264 Uns uitab ility, cha rac ter and behavior disorders

265 Character disorders

270 Physical disability retirement

271 Unsanitary habits

280 Misconduct, fraudu lent entry (enlistee concealed criminal record)

281 Desertion

282 Prolonged unauthorized absence for 

more than one year

283 AWOL, tri al waived

284 Convicted or adjudged a juvenile 

offender by a civil co urt

285 Adjudged juvenile offender

286 Repeated military offenses not war1

 Printed in The Common Bond, publication 1973.

287 Unclean habits, including repea ted 

V.D.

288 Habits and tra its of chara cter 

manifested by anti-social and amoral 

trends

289 Alcoholism

290 Desertion (court-martial)

291 Alcoholism

292 Other than desertion (courtmartia l)

293 General court-m artial

294 Special court-martial

311 Alien without legal residence in 

U.S.

314 Imp orta nt to national health, safety 

or interest

316 Release, writ of habeas corpus 

318 Conscientious objection

361 Homosexual tendencies

362 Homosexual tendencies, desires, or 

interest, but without overt homosexual acts

367 Erroneous enlistme nt

367 Aggressive reaction

368 Anti-social perso nality

369 Cyclothymic personality

375 Discharge, not meeting medical fitness standa rds at time of entry

380 Desertion

383 Criminalism

384 Drug abuse

385 Pathological lying

386 Established pat tern for shirking

387 Habits and traits of chara cter 

manifested by misconduct

388 Sexual perversion, including but 

not limited to lewd and lascivious 

acts, indecent exposure, indecent acts 

with ass ault upon a child, or other 

indecent acts or offenses

41A Apathy 

41E Obesity

46A Apathy, defective attitu des, and inability to expend effort constructively

46B Sexual deviate 

46C Apathy, obesity 

46D Sexual deviate 

411 Early separation of overseas returnee

460 Emotional instability reaction

461 Inadequate personality

of the American Servicemen's Union, June,
293

Unfavorable codes— Con tinu ed

•462 Mental deficiency

463 Para noid personality

464 Schizoid personality 

469 Unsuitability

480 Personality disorder

488 Unsuitable (general discha rge separation)

489 Disloyal or subversive

In recent months the armed forces have revised the ir sepa ration codes. The 

Dep’t. of Defense is making a stron g effort to keep these new codes confidential, 

even to the point of declaring published service regulations classified. The Dep’t. 

of Defense has not, however, made any attempt to call back discharge papers 

from times prior to the revisions to delete the codes on them—which is the only 

way those veterans’ sepa ration numbers could be made confidential.

B. Inequities in Discharging Procedures

1. Loss of due process.—An exam ination of the statistics for other-tlianIIonorable discharges issued during the Vietnam era (See the chart on the first 

page of the “Overview.” ) reveals th at the majority of discharges issued were 

adm inistrative, not punitive. In many of these cases, enlisted persons were informed that they were going to be tried and convicted in courts-martial unless 

they signed a waiver that allowed an adm inistrative hearing to discharge them 

from the armed forces with a General or Undesirable discharge. Most enlisted 

persons accepted this “option” without understanding that they were bypassing 

due processes which might have been available to them if they had gone into a 

court-martial.

An examination of the same statistics reveals a dramatic numerica l increase 

in General and Undesirable discharges in the fiscal yea rs 1970, 1971, and 1972. 

The numerical increase corresponds to a dramatic increase in the percentage of 

General and Undesirable discharges in relation to all discharges issued—from 

respective averages of 2-3% and 1.2-1.4% prior to fiscal 1970 to averages of 

4.87% and 4.49% by fiscal 1972.2 These thre e fiscal years correspond to a cutback 

in the armed forces by the Nixon Administration. The most common int erp retation of this virtual doubling in the numbers and percentages of adm inistrative 

other-than-Honorable discharges is th at many company commanders made a 

practice of offering enlisted personnel the “option” of a court-m artial or early 

mustering out with an other-than-Honorable discharge in order to meet the ir 

cutback requirements and to remove difficult individuals from the ir commands 

without the expense in energy and time of court-martial hearings.

This “option” has been an established practice for several years. The Annual 

Report of the Court of Military Appeals for 1960 sta ted:

"The unusual increase in the use of the adm inistrative discharge since the 

enactment of the Uniform Code of M ilitary Justice has led to the suspicion that 

the services were resorting to tha t means of circumventing the requirements of 

the code. The validity of that suspicion was confirmed by Maj. Gen. Reginald C. 

Harmon, then Judg e Advocate General of the Air Force, at the annual meeting 

of the Judge Advocates Association held at Dos Angeles, Calif., August 26, 1968. 

He there declared that, the tremendous increase in undesirable discharges by 

adm inistrative proceedings was the result of efforts of military commanders to 

avoid the requirements of the Uniform Code. Although he acknowledged that 

men thereby affected were deprived of the protections afforded by the code, no 

action to cu rtail the practice was initiated.” 3 4

2. Racial and Ethn ic Discrim ination.—Although non-white, non-English speaking enlisted persons made up 9-11% of the composition of the Vietnam era 

arme d forces, they received 24% of the other-than-Honorable discharges. In 

November. 1972, the Task Force on the Adm inistration of Military Justice in 

the Armed Forces reported th a t:

“In all services, blacks receive a lower proportion of the honorable discharges 

and a higher proportion of general and undesirable discharges tha n whites with 

similar educational levels and aptitude. Thus, the disparity cannot be explained 

by aptitude or lack of ed ucation.” ‘

2

 From Dep’t of Defense sta tistical charts, issued July, 1973.

3

 Quoted in Sum mary— Report of Hearings by the Subcommittee on Constitutional R ights

of the Committee on the Judiciary, United States Senate, 88th Congress, 1963.

4

 Report of the Task Force on the Adm inistration of Military Just ice, Dep’t of Defense 

publication, 1972, p. 156.
294

The same r eport found t h a t:

“This stud y revealed a significant disp arity between a high school grad uate 

and dropouts, regardless of race. The percentage of drop outs receiving honorable discha rge tra ils gra duate s of the same apt itude who receive this discharg e 

from 10 to 22 p oints.” 6

Unfo rtuna tely, the Task Force did not analyz e the racial or ethn ic composition 

of the enlisted personnel who were high school dropouts. However, stud ies of the 

Selective Service System and of volun tary enlistment patterns dur ing the Vietnam era indicates th at many high school dropouts in the arme d forces were 

members of white English-speaking ethni c minorities, as well as of black and 

Spanish-speaking minorities. It may be infe rred that these white ethn ic persons 

were among the dropo ut popula tion which the Task Force ref err ed to.

C. Pen alties fo r Holding Other-than-H onorable Discharges

1. Denia l of Veterans Benefits.—Relev ant laws sta te th at vete rans discha rged 

und er “conditi ons othe r tha n dishonorable" are eligible for vete rans benefits. The 

sta tus of the D ishonora ble discharge is unambiguous, and the arm ed forces define 

General Discha rges as being “under honorable conditions.” To vary ing degrees, 

however, Undesirable and Bad Conduct d ischarges are ambiguous. In many areas 

of benefits, vete rans holding these discharges may be eligible, if the Federal 

agencies involved rule th at the specific causes for the ir discharges are “othe r 

tha n disho norable” :

CHART NO. 2

ELIGIB ILIT Y/INELIG IBILITY ACCORDING TO DISCHARGE >

Honorable General

Undesirable

Bad

conduct

Dishonorable

Benefits administered by:

Arm y:

1. Payment for accrued leave......................................... E E NE NE NE 2. Death gratuity (6 mo. pay)......................................... E E E E NE 3. Transportation to home_________ _____ _____

4. Transportation of dependents and household goods

E E E E E

to home__________ _____________________ E E NE NE NE 5. Wearing of milita ry uniform s__________________ E E NE NE NE 6. Admission to Soldiers’ Hom e._________________ E E NE NE NE 7. Burial in National cemetery........ .............. ........... . E E NE NE NE 8. Headstone m ark e r. .. ........ .......................... ............. E E NE NE NE 9. Army board for correction of military records____ E E E E E

10. Army discharge review board.................................... E E E NE NE Veterans Administratio n:

1. Dependency and indemnity compensation_______

2. Compensation for service-connected disability or

E E TBD NE NE

dea th_____________________ ________ _____ E E TBD NE NE 3. Pension for non-service-connected disability or

dea th___________________________________ E E TBD NE NE 4. Medal of Honor Roll pension...... .............................. E E TBD NE NE 5. Insurance___________________________ ______ E E TBD TBD TBD 6. Vocational rehabilitation ______________________

7. Educational assistance (inc luding flig ht training

E E TBD NE NE

and apprentice tra ining)........... ............................. E E TBD NE NE 8. War orphans’ educational assistance___________ E E TBD NE NE 9. Home and other loans................................................ E E TBD NE NE 10. Hospitalization and domiciliary care....................... E E TBD NE NE 11. Medical and dental services.................... ......... ....... E E TBD NE NE 12. Prosthetic appliances_________ _______________ E E TBD NE NE 13. Guide dogs and equipment for blindness________ E E TBD NE NE 14. Special housing (DV)_________________________ E E TBD NE NE 15. Automobiles (DV) ____________ ___________ E E TBD NE HE IE. Funeral and burial expenses_______ ____ ______ E E TBD NE NE 17. Burial fla g____________ ___ ____ _________ E E TBD NE NE Other Federal agencies:

1. Preference for farm loans (Department of Agriculture) ..................... .......... ......... E E E E NE 2. Preference for farm and other rural housing loans

(Department of Agriculture)_________________ E E E E NE 3. Civil service preference (Civil Service Commission).

4. Civil service retirement credit (Civil Service ComE E NE NE NE

m is sio n)..._________ _____________________ E E NE NE NE 5. Re-employment rights (Department of Labor)____

6. Job counseling and employment placement (DeE E NE NE NE

partment of Labor) ............................ . . . . . . . . E E TBD NE NE 7. Unemployment compensation for ex-servicemen

(Department of Labor)_______________ ____ E E TBD NE NE 8. Naturalization benefits (Department of Justice,

Imm igration and Naturalization Service)______ E E NE NE HE 9. Old age and disability insurance (Social Security

Admin istration)....................................................... E E TBD NE NE

1

 Copied from Department of the Army chart CTA 2-1, issued June 1964. 

Key: E—Eligible; TBD—To be determined; NE— Not eligible.

5

 Ibid., p. 15.
295

In practice, Federal agencies interp ret the reasons for otlier-tlian-Honorable 

discharges as strictly as jiossible and deny most applic ations for benefits. The 

Nade r Report on Vietnam Veterans and th e Veterans Adm inistratio n states :

“A stud y of a five-month period in 1972 . . . noted th at only 1,305 applic ations 

for educationa l benefits were received from men with bad discharg es. Of these 

91 were approved. Duri ng this same period more tha n 4.000 veterans with bad 

discha rges applied for unemployment compensation. . . . Of the 4,000 men who 

applied, 3,400 were found ineligible. Ninety-seven of the cases involved veterans 

with drug -rela ted dis cha rge s; six of these were approved. As one Vetera ns 

Adm inistratio n official remarked after seeing these sta tist ics , Undesirable and 

Bad Conduct Discha rges are effectively t he sam e as a Dishonorable Discharg e in 

terms of el igibility for v eteran s’ benefits.” 8

2. Disc riminatio n in Employment.—Although vete rans with General Discharges can obtain the ir veteran s’ benefits, they sha re the pligh t of oth er veterans with other-tlian-Honorabl e discharges when they apply for employment. 

Maj. Bradley K. Jones of the Army Judg e Advocate General Corps ran a st at istical survey of 1000 colleges, professional associations, small business and large 

business employers to determine to wha t ext ent these institu tion s admit ted or 

employed, or rejected vete rans on the grounds they held one of the otlier-tlianHonorable discharges. The following ch art summarizes liis findings th at a “less 

tha n honorable discharge obviously hami>ered an ex-serviceman’s employment . .. 

prospects” :* 7

CHART NO. 3.—D ISC HA RG E CON SEQ UEN CES* 

COMPARISON OF DIS CH AR GE EFFECT S BY TY PE S OF DIS CHARGE 

[In percent]

A. Discharge Inqu iries :

Inquire into disch arge ................................................................................................................................................ 65.6

Accept word.................................................. 51.8

Look at d ischa rge........................................................................................................................................................ 46.8

Write Armed Fo rc es. .____ ______________________ 8.6

Policy 

influenced by

Reject

automatically Look behind Probation

B. Acceptance policies:

1. General.................................... ........................... 51.2 15.1 77.1 17.9

II. Un de sir ab le. ..................................................... 69.1 28.8 66.7 15.6

II I. BC D........ ................................................. ........... 75.0 35.4 62.2 14.4

IV. Disho nora ble.......................... .......................... 77.4 43.3 56.3 11.6

* Ibid., p. 25.

In interp reting these sta tistical results, Jones emphasized th at sever ity of 

discr imin ation was gre ate r in seeking employment or adm ittance to professional 

organ izatio ns tha n in seeking adm ission to sch ool :

“College officials showed a gre ate r awar eness of the adm inistra tive discharge 

system than did the businesses. Conversely businesses were more likely to inquir e into the serviceman’s discharge, more likely to be influenced by it. and 

much more likely to auto mati cally reject tha n the colleges. Wit hin the two groups 

size worked in different ways. Big businesses were more likely to inquire, be 

influenced by, and disqualify tha n small businesses. . . . Not surp risin gly the 

bar and medical examiners were marke dly more interested in the chara cte r of 

an app lica nt’s discharg e. Nearly three-q uart ers made some inqu iry and then 

eith er required a look at the discha rge certif icate or verification from the armed 

forces. Over seventy percent stated that even a general disch arge ‘influence’ 

the ir licensure decision.” 8

8. Additional Form s of Discrimination.—Veter ans with other-tlian-H onorable 

discharges face additional kinds of discrimination , outsid e of the crucia l are as of 

benefits and employment. They find it harder, if not impossible, to procure life 

insurance, medical insura nce, mortgages, home improve ment loans, bonding, and

’ Pau l S ta rr , w ith Ji m Hen ry an d Ray Bo nn er. Tr ou bled Peace: an Epilo gu e to V ie tn am

pr el im in ar y pu bl icatio n. Cen te r f or Re spon siv e La w, 197 3, p. V I-22 .

7

 B ra dl ey K. Jo ne s, “T he G ra vity of A dm in is tr at iv e D is ch ar ge: a Le ga l an d Em pi rica l 

E val uat io n”, M ilitar y La te R ev ie w , W in te r, 1973 , p. 18.

»/M d.,pp. 19 -20.
296

cre dit; the ir service records establish them as “bad risks.” For veterans who 

have serious medical or psyc hiatric problems, who need treatm ent for drug 

addiction, who live in inadequate housing, etc.—who a re already denied benefits 

and/o r adequ ate employment—these additional forms of discrimination can have 

disastrous personal consequences.

Hidden Discrim ination.—The ready availability of the meaning of v eterans’ 

separation codes constitute s an additional factor of discrimination. Many personnel offices, particu larly those working for large corporations, have copies of 

these codes, and autom atically check all discharge pape rs for the reasons for discharges. A veteran carrying such codes as "288: Unclean habits and tra its of 

cha racter manifested by anti-social and amoral trends” or “461: Inad equate persona lity” may well be rejected for employment.

Several veteran s’ counseling organizatio ns have reported cases in which veterans with Honorable discharges have been consistently rejected for employment. 

Investiga tions of th eir discharge papers revealed "unfavorable” separation codes. 

The veterans had not even been aware of the meanings of those codes.

5. The Human Cost.—The combination of these penalties consign many veterans to a hopeless cycle of joblessness or chronic underemployment, drug addiction, chronic illness, poverty, and/o r crime and imprisonment. Although there 

have been no definitive statistical studies to date, an emerging national figure 

indicates that 20-35% of our prison population consists of Vietnam era veterans 

with other-than-Honorable discharges. A National League of Cities/U.S. Conference of Mayors-sponsored project in Los Angeles, for example, has determined 

that 25% of the inmates of the California state penal system are such veterans.

This cycle reinforces burdens which those veterans who are members of minority groups already face. For example, a September, 1073 study of the Essex Co. 

.Tail (Newark, N.J.) by a member of the National Frate rni ty of Veterans revealed 

tha t, of 518 persons being held over for trial because of inab ility to afford bail, 

35% were Vietnam era veterans. All b ut two of these veterans were black. All of 

them had been arres ted within a year of being discharged.

D. Inadequate Remedies

1. The Discharge Review Process.—There are adm inistrative remedies for 

veteran s who want to appeal the ir discharges. Veterans who received administra tiv e discharges may appeal to the Discharge Review Board (I)RI») of the ir 

branch of the service for relief. If the DRB reje cts their claims, they may 

appeal the DRB’s decision to the Board of Correction of Military Records 

(BCMR) of the ir branch of the service. Veterans with punitive discharges may 

appeal directly to the app ropriate BCMR.

DRB’s consist of military officers, although there are no requirements in the 

laws or regulations which res tric t DRB membership to officers. The Army Discharge Review Board, in particu lar, consists of senior officers (Colonels and 

Generals). Their mandate is to determ ine whether discharges were issued justly 

an d/or through proper following of service Regulations.

BCMR’s consist of civilians employed by the Dep’t of Defense. BCMR's have 

a somewhat broader mandate than DRB’s (e.g.—They can alt er improper medical records.), but examine discharges on much the same grounds as DRB’s.

Applicants may make personal appearances before DRB’s or BCMR’s and 

may prese nt witnesses, evidence, affidavits, or legal briefs on their behalf. They 

may be represented by legal counsel or by other persons recognized as legitim ate 

represen tatives by the various Boards. (The regulations specify that cha rter 

veterans’ organizatio ns and the American Red Cross are autom atically legitimate 

represen tatives.) Neither set of Boards has power to subpoena witnesses; 

nei the r set employs cross-examination in its hearing procedures. However, none 

of these options are required. Veterans may simply fill in the appropriate applications for relief without fu rth er efforts on their own behalf.

Both sets of Boards are located in the Pentagon.

2. Problems with the Discharge Review Process.—In general sta tistical terms, 

only 14-17% of the appeals for upgrading of discharges made to the DRB’s and 

BCMR’s have been granted over the years. These general statistics reflect more 

that there are problems within the discharge review process than any deliberate 

atte mpt to be overly strict on the parts of the Boards. The charter veterans’ 

organizations and the American Red Cross e stimate that they succeed in proc uring upgrades for 22-24% of the cases they represent annually , and they also 

estimate that individuals who can make personal appearances have an even 

higher chance of making a successful application for relief. There are three 

reasons that create such a low overall percentage of successful appeals.
297

First, most veterans have only the vagu est concept of how to appeal the ir discharges. The maj ority of them lear n of the existence of the DRB’s and the 

BCMR’s from officials of the Veterans Admi nistration . The V.A. provides little 

more tha n the two-page application form to the Boards. Consequently, few 

vete rans even reque st repr esen tatio n or a personal appe arance at their hearin gs, 

let alone develop any evidence abou t the issuing of the ir discharges in the ir 

mil itar y records. Second, even when veterans do requ est represen tation from ch art er veteran s’ 

organ izatio ns o r from the Red Cross, the ir cases are not always developed because 

the ch art er orga nizations and the Red Cross opera te on the assump tion th at the 

basic inform ation al>out the case is contained in the veteran s’ mili tary records:

“Bewar e of becoming too much involved in the merits of a case. . . . Experience 

has shown th at what the man tells the work er may vary greatly with what is in 

the tile. The memory dims, fact s fade, and the man will tend to m anip ulate to his 

own adv antage.” 8

However, in many cases, the information in the military records is unfa irly 

selective or inacc urate. If veteran s’ repr esen tatives assisted them in locating 

witnesses, developing narra tiv es of the ir version s of the case, and preparing legal 

brief s—many more appeals might be gran ted. Third, most Vietnam era veterans cann ot afford to trav el to the Penta gon to 

make a person al app earance at the ir hearin gs. The ir odds for successful appeals 

are thereby reduced, even when they have represen tation and when the ir cases 

are thoroughly prepar ed. These three problems affect minority group ve teran s with othe r-than -Honorabl e 

discha rges even more severely than white veterans. They are least likely to 

reque st repr esen tatio n from organ izatio ns they perceive as “white”-oriented and 

leas t likely to be able to afford long-distance trip s to Arlington. The Task Force 

on the Ad ministration of Military Jus tice observed in th eir r ep or t:

“The da ta collected from the Discharge Review Board s and the Board s for 

Correctio n of Military/N aval Records duri ng the first qu arter of calend ar year 

1972 reflect a noticeable difference in the incidence of r elief g ranted to white over 

black applicants.” 10

II . BACKGROUND OF TII E EVOLVING DISCHARG E UPGRADE COUNS ELING NETWORK

Large numbers of Vietnam era veterans regard tradition al service and chart er 

veteran s’ agencies as outmoded relics of anot her e ra, whose values, inte rest s, and 

progra ms are indifferent to the ir needs. In incre asing numbers, Vietnam era veteran s have begun to init iate, direct, and staff there own proje cts to meet wha t 

they perceive a s the ir pa rtic ula r needs. These proje cts vary enormously from one community to anot her. Some, like 

Sea ttle’s Veterans Action Center or Ea st St. Louis’ Veterans Center, offer a wide 

varie ty of specific services (including job counseling, priso n visitatio n, marr iage 

counseling, assis tance in procuring veteran s’ ben efits). Some, Like San Fr an ­

cisco’s Discharge Upgrade Proj ect are designed to prese nt one p art icu lar service. 

Some, like Dayto n's Vietnam Vetera ns Outreach Progr am are incorpora ted into 

trad itio nal city, state, or Fede ral service agencies, while othe rs (lik e SEA-VAC 

ag ain ) operate with supp ort from both governm ent and priv ate sources of funding. Some are well-funded and have sizable staffs, while many are s till opera ting 

on shoestrin g fu nding with part-time vo lunteers.

• The evolving network of discharge upgr ade counselors is pa rt of this overall 

development.

A. Overview of Discharge-r elated progra ms

Vietnam era groups are atta cking the problem of otlier-than Honora ble discharges in one or all of th ree areas :

Fir st, they are providin g face-to-face counseling for enlisted personnel who a re 

still members of the armed forces, when those i>ersons have difficulties which 

might result in other-than-H onorable discharges. There ar e some 4 00 such counselors thro ugho ut the country. These counselors use the services of such cen tral ­

ized organizations as CCCO, the Network of Black Dr aft /M ilit ary Counselors, 

and the Military Lawy ers Defense Committee to provide competent legal resea rch 

and legal rep rese ntat ion to a dvise and defend e nlisted persons.

•American National Red Cross, Guidelines for Caseworkers in Discharge Review and

Correction of Military and Naval Records, July, 1972, p. 8.

10 Task Force, p. 287.

31-658—74----- 21
298

Second, they are providing face-to-face counseling for vete rans who become 

interested in appealing their discharges to the DRB’s or BOMR’s. These counselors can turn to the Washington University Military Law Project for assistance 

in analyzing the material in veteran s’ military records and in prep aring legal 

briefs for their cases. They can turn to such organizations as the A.C.L.U.’s 

Military Rights Project (the same staff as the Lawyers Military Defense Committee) and the American Veterans Committee for review of the materials they 

are presenting in their appeal and for represen tation before the Boards at the 

Pentagon.

Third, they are organizing projects to change laws and policies controlling the 

issuing and the reviewing of discharges, and the laws and policies controlling 

eligibility for veteran s’ benefits. These projects range from lobbying activ ities 

to atte mpts to take precedent-setting cases to Federal Court.

Some self-help groups are mounting programs in all three of these areas (the 

National Frate rnity of Veterans, to cite one exam ple), while others offer programs in only one of these areas. (Se attle’s Veterans Action Center offers discharg e upgrade counseling, but does not offer military counseling o r take potentially precedent-setting cases to Federal Court.)

B. The Discharge Upgrade Counseling Netw ork

Some forty-four discharge upgrade counseling programs are beginning to form 

a network with the following three fea tures :

1. Local Counseling.—The local face-to-face counseling programs are able to 

service the immediate needs of veterans with other-than-Honorable discharges, 

at the same time as they initiate the process for appealing those discharges. 

Some of these program s have begun to establish contact with Law Schools, civil 

liberties-related attorneys, church groups, and civic groups to build effective 

preparation of cases and to procure adeq uate funding and organizational resources to conduct an extensive, long-term counseling program.

2. Legal Research and Analysis.—The Washington University Military Law 

Project has formed in St. Louis to provide legal resear ch/ana lysis assistance to 

any local counseling groups which request it. The Military Project can copy the 

relevant imrtions of th e veterans’ military records at the armed services’ records’ 

depository in St. Louis. They can then analyze the tiles and recommend how the 

veteran s’ cases might best be prepared, and, when requested, they can develop 

legal briefs for the cases, to be presented before the DRB’s and BCMR’s.

3. A Spectrum of Representatives.—Local counselors can, of course, tie into any 

organizatio n which is willing to represent cases before the DRB’s or BCMR’s. 

In some cases, the charter veteran s’ organizatio ns or the Red Cross may in fact 

be ideal representatives, once more extensive preparation has been provided in 

advance. In most cases, howver, the services of legally trained counsel make a 

significant difference in veteran s’ chances for successful hearings (particularly 

for third-world veterans, and for veterans who cannot afford to trav el to the 

hea ring s).

The Military Rights Project of the A.C.L.U., in particular, is committed to 

the development of an effective discharge upgrade counseling network. The Military Righ ts Project, in addition to providing representa tion, will review all files, 

papers, affidavits, and legal briefs being submitted in appeals, and will prepare 

legal briefs when local counseling program s do not have the resources to do 

so or when the M ilitary Law Project is unable to.

Chart 4 (below) lists many of the groups involved in the evolving counseling 

network. A comprehensive list is in the process of being compiled.

CHART NO. 4. GROUPS WH O ARE BECOMING PART OF A DISCHARG E COUNSELING NETWORK

Alton, Illinois

Veterans Service C en ter3

321 E. Broadway 

Alton

Amherst, Massachusetts

Draft and M ilitary Counseling Center 2

R.S.O. No. 95

University of Massachusetts 

Amherst 01002

Footnotes a t end of article.
299

Atlanta . Georgia 

COCO2

848 Peachtree St., X.E.

Atlanta 30308 

(404) 874-0288

Baltimore, Maryland

"Highway 13”/F t. Meade P ro ject 3

1590 Annajtolis Rd.

Odenton, Md. 21113

Boston, Mass.

Boston Veterans Service Pr oj ec t2

355 Boyleston St.

Boston 02116

Buffalo, X.Y.

Veterans Club 2

Box E. Xorton Union 

S.U.X.Y.

Chicago, Ill.

Chicago Veterans Pr ojec t1

630 X. LaSalle 

Chicago 60610 

(312) 744-8118

Vietnam Veterans Against the W ar 2 8

827 W. Xewport 

Chicago 60657

Cleveland, Ohio 

V.E.T.A.C.1

2905 Chester Ave.

Cleveland 44114

Dayton, Ohio

Vietnam Veterans Outreach Program8

40 S. Main St.

Centre City Building 

Dayton, Ohio 

(513) 225-5400

Denver, Colo.

Rocky Mt. Military Pr ojec t3

1460 Pennsylvania St.

Denver 80203

Veterans Opportunity Ce nte r1

847 E. Colfax

Denver

(303) 573-7673

Indianapolis, Ind.

Indiana isdis Area Dr aft & G.I. Center 2

1505 Xo. Delaware St.

Indianap olis 46202 

(317) 253-1905

E. St. Louis, Ill.

Veterans Service Ce nter 2 8

234 Collinsville Ave.

E. St. Louis 62207 

(618) 875-1800 

(618) 465-0111

Florris san t, Mo.

Stud ent Union/Ve ctor2

Flo rris san t Valley Community College

Flo rissan t

Holyoke, Mass.

Western Mass. Legal Services, Inc.2

193 Main St.

Holyoke 01040

Footnotes nt end of article.
Houston, Tex.

Vietnam Veterans Against the W ar 3

2912 Wentw orth 

Houston 77005 

(713) 644-3916 

Los Angeles, Calif.

Veterans Education Trainin g Service 

7815 S. Vermont Ave.

LA 90044

Veterans Outreach Prog ram13

929 N. Bonnie Beach Place 

LA 90063

Miami, Fla.

Vietnam Veterans Against th e W ar 1

South Dade Chapter 

14470 S.W. 285th St.

Homestead 33030 

(305) 247-2148 

Minneapolis, Minn.

Blue Door Counseling Service2

3104 16th Ave., S.

Minneai*olis 55407 

Newark, N'.J.

National Frate rni ty of Veterans 13 4

c/o Veterans Affairs Office 

Rutgers U./Newark,

Newark

New Haven, Conn.

National Fra ternity of Veterans 3 4 • 

Box 3927

New Haven 

(203) 389-4533 

New York City, N.Y.

Episcopal Peace Fellow ship2

Gramercy Park, N.

N.Y.C.

Fund for Human R ights2

112 E. 19th St.

N.Y.C.

Mayors Office for Veterans Action18

80 Myrtle Ave.

Brooklyn, N.Y.

Queens College Veterans Assoc.2

Queens College 

Flushing, N.Y.

U.S.S.F.2

44 Greenwich Ave.

N.Y.C.

Vietnam Veterans Against th e W ar 2

135 W. 4th St.

N.Y.C.

Workers Defense Leagu e2

 ®

Rm. 437 

150 Fifth Ave.

N.Y.C.

Nyack, N.Y.

Fellow ship of Reconciliation 2

Box 271 

Nyack 10960 

Oakland, Calif.

Discharge Upgrade Pr oj ec t2 4 8

4919 Telegraph Ave.

Oakland

Foo tno tes at end of a rtic le.
301

Philadelphia, Pa.

Ed Kopan ski 8 40

5 E. Penn. Square 

Pliila.

(215) GE8-2266 

CCCO2 8

2016 Walnut St.

1‘hila. 19103 

(215) 568-7971

Portland, Oreg.

Por tland D raft and Military Counseling C en ter2

633 S.W. Montgomery 

Portlan d 97201

St. Louis, Mo.

Washington U. Military Law Pr oj ec t24 [Provides legal research for dis 

charge appeals]

Skinker and Lindell Blvds.

St. Louis 63130

(314) S63-0100 ext. 4902,4501

San Diego, Calif.

Center for Servicemen’s R ights13

Box 2016

San Diego 92102

G.I. Forum 18

430 University Ave

San Diego 92103

(714) 299-3390

San Francisco, Calif.

Demilitarized Zon e23

Modulux #45 

% Associated Students 

S.C.U.-S.F. 1600 Holloway Ave 

S.F. 94132

Discharge Upgrading Pr ojec t24 8

3067 24th St.

S.F. 94110

Savannah, Ga.

Veterans Outreach Ce nte r13

135 Whittaker St.

Savannah

Seattle, Wash.

Seattle Veterans Action C enter 23

1300 Madison St.

Seattle 98122 

(206 ) 583-6595

Sunderland, Mass.

University Dr aft and Veterans Counseling Service 2

Old Amherst Rd.

Sunderland 01375

Tacoma, Wash.

Tacoma V eterans Action C enter 1

1301 So. K St.

Tacoma 98405 

(206) 383—4008

Washington, D.C.

American Veterans Committee 

1333 Connecticut Ave., N.W.

Wash., D.C. 20036

(202) 293-4800

Military Righ ts Project 2 4 0 8

410 1st St., S.E.

Wash., D.C. 20003 

(202) 544-0447

Footnotes n t end of article.
302

Yonkers, N.Y.

DEROS

1 *

42 Warburton Ave 

Yonkers, N.Y.

(914) 9G3-1313

1

 Offer variety of services, and are Interested In opening discharge review counseling.

2

 OfFer discharge review counseling. 3

 Offer discharge review counseling and othe r kinds of services which veterans with 

other-than-lionorable discharges may need.

* Will prepare legal briefs for discharge review cases.

B Will represent veterans who are appealing for discharge review or correction of military records before the appropriate boards. 8

 Will take potentially precedent-setting cases on discharge review into Federal courts.

Prospects for the Network.—This emerging discharge upgrade counseling 

network lias the prospect for providing significant allev iation of the other-thanlionorable discharge problem.

Fir st, the self-help groups have the tru st and confidence of the vete rans on the 

street—an advanta ge which more trad itional agencies do not have. This tru st 

means that large numbers of veterans with other-than-Honorable discharges will 

seek out counseling, once they hea r of the service from other veterans in their 

communities. SEA-VAC and the San Francisco Discharge Upgrade Project, for 

example, both report that their number of clients mushroomed in number as they 

became known in the community. A su bstantial portion of the 424,805 veterans 

with other-than-IIonorable discharges could be reached by these groups.

Second, the self-help groups can often provide ancillary services (job counseling. medical assistance, etc.) from their organizatio ns to veterans with otherthan-Honorable discharges. These services enable them to alleviate some of the 

veteran s’ immediate problems.

Third, because of the more complete preparatio n and more legally-trained 

represen tation in hearin gs, this network is likely to increase the percentage of 

appeals granted. David Addlestone, direc tor of the Military Rights Project, estimate s that the network may be able to win as much as 50% or more of their 

cases.

Fourth, as local self-help group-based programs build outreach to church and 

civil groups, social agencies, professional associations, etc., general public awareness of the problems with the issuing and reviewing of discharges will increase. 

This awareness can create the atmosphere in which coalitions of many kinds of 

local, regional, and natio nal groups concerned about civil liberties, veterans, etc. 

can form to work for changes in law and policies.

5. Problems with the Netw ork.— The discharge upgrade counseling network 

faces many problems which must be surmounted before these prospects can be 

realized. Counseling skills are unevenly distributed throughou t the netw ork: the 

majority of programs are jus t at their beginning stages, often using novice 

counselors who can volunteer only a few hours a week. Only a few programs 

have yet built the extensive outreach to legal, church, and civic resources needed 

to maximize the ir effectiveness: many of them need assistance in developing 

those contacts. Information on counseling is available, but not as widely known 

and d istributed as it needs to be.

Although some groups in the network (CCCO, the Military Rights Project, the 

Military Law Project) can offer some training in counseling skills, they cannot 

offer it to large numbers of people in a variety of communities during a short 

period of time. Similarly, groups who have experience which could assist newer 

programs in building the ir community outreach cannot afford the time required 

to provide tha t assistance throughout the network.

III. BACKGROUND ON PAST AND PRESENT LEGISLATION

A. Brief History

The history of legislation to allev iate problems in discharging and the reviewing of discharges is short and ter se: There isn 't much, and most of it died in 

committee.

In 19G3, the Subcommittee on Constitutio nal Rights of the Senate Judiciary 

Committee held hearings on other-than-Honorable discharges. Senator Ervin, 

chairman of the Committee, submitted bills in subsequent years, until the late 

19G0’s, designed to introduce more due process (verbatim records, advocacy
303

repre senta tion, confrontation of witnesses, etc.) into adm inistrative hearings. 

There was not sufficient interest in any of those years to bring the hills out of 

committee.

In 1971, Rep. Charles Bennett of Florida introduced legislation in the House 

to bring greater due process into discharging policies. Although his hill was not 

as far-ranging a s the earlier Ervin bills, it also did not raise sufficient enthusiasm 

to pass committee.

In 1972, Reps. Abzug, Conyers, Dellums, and Ryan introduced a bill calling 

for universal and unconditional amnesty for persons involved in resistanc e to 

the Vietnam war. One of the provisions in the bill is designed to upgrade all 

other-than-Honorable discharges issued (directly or indirectly) because of war 

resistance, to Honorable discharges. Hearings on this bill have recently begun, 

but are att rac tin g negligible interest outside liberal factio ns in the House.

B. Current Legislation

On May 7. 1973. Sen. McGovern and Rep. Koch introduced identically written 

bills in the Senate and the House calling for vastly liberalized discharge review 

procedures, and for the deletion of sepa ration code numbers from all discharge 

papers.

The former bills (S. 1915 and II.R. 755G) call for civilian review board members. including Vietnam era veterans, for the regionalization of review boards 

so tha t they will be more accessible to veterans, for broader grounds upgrading 

discharges, and for powers to subpoena and procure affidavits as part of h earin g 

procedures. The following excerpts illu strate the scope of these cha nges:

ex ce rp t: S. 1 7 1 5 AND II .R . 7 5 5 0

* * * “ (a) There are established a number of discharge review boards to 

be known as Vietnam Era Discharge Review Boards (he reinafter in this subchapter referred to as the ‘review boards’). The hea dqu arte rs of such review 

boards shall be located, for adm inistrative purposes only, in the Depa rtment of 

Defense.

“(b) The Secretary of Defense shall have au tho rity—

“(11 to determ ine the number of review boards in session at any time, but 

such number shall be not less th an four nor more than eig ht :

“ (2) to determ ine the locations where the review boards shall conduct their 

business, such locations to be geographically disbursed on the basis of population concen trations of discharge appell ants; and

“ (3) to convene or dissolve review boards in accordance with the number of 

discharge and dismissal applications pending at any time.

“ (c) Each review hoard shall be composed o f eight members to be appointed 

by the President * * *. Of the eight members on any review board—

“(1) at leas t two shall be vete rans of the Vietnam era -and under the age of 

thirty a t th e time of appointment.

“ (2) at least one shall be a veteran who was in activ e service prio r to the 

Vietnam era.

“ (3) at least one shall be a nonveteran,

“ (4) at leas t two shall be members of the Armed Forces serving on active 

duty, but may not be from the same branch of service, and

“ (5) one shall be a medical doctor in the employ of the Vete rans’ Administration * ♦ *.

“* * * the review boards shall, upon application filed in accordance with regulations prescribed by the President, review any discharge or dismissal from the 

Armed Forces gran ted under less than honorable conditions to any person who 

served on active duty during the Vietnam era. If. upon the review of the discharge or dismissal of any such person, a review board finds t ha t such person—

“ (1) was denied reasonable recourse, solution, or alternativ es to the situ atio n 

or circumstances which precipitated or s ubstantially contributed to his discharge 

or d ism issal;

“ (2) was discharged or dismissed under prejudicial, arb itrary , or unre asonably severe circumstances;

“ (3) was physically, mentally, or emotionally unfit or incapable of meeting 

standa rds or performing assignments required of him by military service:

“ (4) was discharged or dismissed prim arily for the possession or use of a 

narco tic drug or mariju ana or for dependency on a narc otic drug, but not for 

the sale of a narc otic drug or marijuana ;

“ (5) was discharged or dismissed prim arily for political, moral, or religious 

beliefs or ac tiv ities; or
304

“ (6) no longer wa rra nts or deserves, in the judgment of the review board, 

the classification of discharge granted him, then the review board shall change 

the discharge or dismissal or issue a new discharge to indicate th at such person 

was discharged or dismissed under honorable conditions. * * *

“(c) The review boards shall have the power to—

“(1) administer oaths;

“(2) require by subpena the attendance and testim ony of witnesses and the 

production of all documentary evidence rela ting to the execution of their du tie s;

“ (3) in the case of disobedience to a subpena or order issued under this 

subsection, invoke the aid of any dis tric t court of the United States to require 

compliance with such subpena or or de r;

“(4) order testimony to be taken by deposition before any person who they 

may designate for that purpose and who has the power to administer oaths, 

and in such instances to compel testimony and the production of testimony in 

the same manner as authorized under parag raphs (2) and (3) of this subsection ;

“ (5) require directly from the head of any executive departm ent or agency of 

the Federal Government available information which the board deems useful 

in the discharge of its duties, and all such departm ents and agencies shall 

cooperate with the review boards and furnish relevant information to the extent 

perm itted by la w : and

“ (6) prescribe such regulations and procedures as may be necessary to carry 

out the purposes of this subchapter.

“(d) Any distric t court of the United States with requ isite jurisdiction may, 

in case of a refusal to obey a subpena or order of any review board issued under 

this subtitle, issue an order requ iring compliance therewith, and any fail ure to 

obey the order of the court may be punished by the court as contempt thereof.

The latte r bills (S. 1716 and II.R. 7556) call for Ihe elimination of separation 

codes from all futur e discharge papers, for the confidentiality of reasons for 

separations, and for the calling in of discharge pape rs issued in the past' so 

that sepa ration codes may be deleted from them :

EXCERPTS: S. 1716 ANO II. R. 75 57

♦ * * “The Secretary of Defense shall take such action as may be necessary 

and appropriate to insure that—

“ (1) discharge certificates issued to members of the armed forces shall not 

bear any letter or number code or other indic ator of any kind whatsoever which 

discloses any reason why any such member was discharged or separated from 

servi ce; and

“ (2) no information indicating or rela ting to any reason why any former 

member of the armed forces was discharged or sepa rated from service may be 

made available to any private person (oth er than the former member concerned) 

or e ntity by any office or employee of any military departm ent or agency.” * * *

* * * Any former member of the armed forces of the United States who prior 

to the date of enactment of this Act. was issued a discharge certificate and 

such certificate contained any information (in code or otherwise) described 

in section 975 of title 10, United States Code, as added by the first section of 

this Act, shall, upon application to the Secretary of the appropriate military 

depa rtment, be issued a new discharge certificate without such information 

appearing thereon.

C. Prospects

The prospects of the Abzug, et al. bill is effectively nil. There is a general 

unwillingness in the House to discuss anything resembling the amnesty issue 

at this point in time, and there is particu larly strong hostility to the issue from 

powerful conservative committee chairpersons, such as F. Edward Hebert of 

the House Armed Services Committee.

The prospects for the Koch and the McGovern bills are slightly better. It is 

probable that public hearings will be held on the bills, and it is possible that 

they will reach debate on the Senate and House floors, provided they do not 

become linked to the “amnesty” issue. However, they are clearly bills sponsored 

by libe ral elements in Congress, and they will encounter stron g opposition from 

conservatives.

Rusty Lindley, a Vietnam era veteran who was involved in the writing of these 

bills, believes that they might have a chance to gain the supp ort of moderates 

and eventual passage if there were a lot of grassroots supp ort for them. At the
30 5

moment, however, the other-tlian-IIonornble discharge issue is unknown to most 

people, a technical footnote to Vietnam to a few, and a clear issue only for a 

handful of people deeply involved with veterans’ problems. A great deal of public 

education and serious program organizing must occur if such grassroots “support” is ever to come about.1

Mr. Kastenmeif.r. Mr. Ar ms tro ng. I ga ther th at you do n ot ap pe ar 

fo r the v eterans, b ut a pp ea r fo r the Ve terans o f W orld W ar I in your 

own cap acity. In any event, you are en titled to ap pe ar in yo ur own 

capacity to prese nt you r statement.

TEST IMONY OF HON. 0. K. ARMSTRONG, IN BEHA LF OF VETERANS 

OF WORLD WA R I

Mr. Armstrong. Mr. Ch airma n, and mem bers of the comm ittee, I 

am honored by the op po rtu nity to ap pe ar before this com mittee and 

to add my word of end orsement to the sta nd tak en by the Am eric an 

Legion, as expressed by ou r most dis tin guish ed au thor ity on the s ubject of amn esty , the Ho norab le James A. O'N eil, the gen tlema n you 

hav e just hea rd. I also speak fo r th e Ve terans of "World W ar I , whose 

reso lution on amnesty closely paral lel s th at of the Am erican Leg ion, 

and I ask consent that it may be included in th e record.

So fa r as I know, e very bona fide v ete ran s organiz ation in Am erica 

is vigo rously opposed to what we call bla nket amn esty for those who 

refuse d to abid e by the laws governing military service. These were 

laws established by Congress, with the ove rwh elm ing su pp ort of the 

peop le of this Nation, fo r the defense and pro tection of ou r country 

and the free wor ld. As we have heard in irr efutab le testimony , “ au toma tic gen eral amnes ty,” as th is bill calls it, fo r the deserters and 

copouts fro m military service in the late Vie tnam war, migh t include 

some who fled the country to avoid goi ng to jai l fo r all sor ts of 

offenses—p rov ide d they could prove th ei r opposition to the I ndochin a 

conflict. It would cover those who prete nd to have avoided t he ir du ty 

to their country because of “conscientious objection ” to war, despite 

the fact th at if the y had been tru e conscientious objectors the law 

alr eady pro vid ed fo r their exemption from combat duty. And I mentio n also in th at connection those who call them selves conscientious 

objectors. And may I say th at I f av or the law for those w ho call themselves conscientious objec tors.

Tha t came up du ring my terms in the Hou se of Repre sentatives 

here. And I supp ort prote cti ng the rig ht s of those who are tru e 

conscientious objectors.

Mr. Ch airma n, t his bill. IT.R. 236, wo uld pr ovide in several instance s 

fo r gr an ting hon orable discha rges to those who come un der the genera l amnesty prov isions. If any were denied hon ora ble discharges 

un justly, their cases should be reviewed and justice done. Bu t I ask : 

W ha t would anyone who refuse d to defen d th is country in tim e of

’ For fur the r information regarding legislative work affecting veterans with other-thanHonorahle discharges, contact any of the three croups below :

American Veterans Committee (Jun e Willenz)

1333 Connecticut Ave., N.W.

Wash., D.C. 20036 National Association of Concerned Veterans 

1120 Connecticut Ave., N.W.

Wash., D C. 20036 Vietnam Veterans Center (Rusty Lindley)

1010 K St., N.W./Rm. 401 

Wash., D.C. 20006
wa r wan t to do with an “ho nor able d ischarge ?” W ould he ev er display 

it a s something of which lie would be proud ?

We note this bill would gr an t general amnesty fo r those accused 

of “know ingly coun selin g, aid ing , or ab ettin g oth ers to refuse or 

evade registrat ion or service in the Arm ed Force s of the United Sta tes, 

or consp irin g to do so.”

A num ber of these subversiv e persons came to the college campuses 

du rin g the war, boast ing t ha t they could help young men avoid milita ry duty. I conside r th at these chara cte rs were in the same class 

with those who went over to No rth Vie tnam—n ot to South Vietnam 

to oppose the aggression of comm unism , but to No rth Vietnam, to 

act as propaganda age nts fo r the enemies o f all huma n freedom. Ask 

the pa ren ts of the boys in your communities who counseled their sons 

to go and do their duty, if they app rove of this astounding proposal.

Th e purpose of this bill, scarcely hid den behind its verb iage, is to 

prove the contention th at the wa r resisters were righ t: it implies 

that those stu pid fellow s who complied with the laws— passed by Con ­

gress, min d you—to defend this cou ntry , were wro ng all the tim e; 

th at t he wa r in Indoch ina was morally and eth ically wrong: that the 

war resiste rs shou ld not be exo nera ted and restored to position s of 

honor and trus t with no pen alties to pay for th eir betrayal of their 

co un try ; that those citiz ens, young and ma tur e, who sup ported our 

stand again st nak ed, sta rk , military aggression of the Com munist 

regime of North V ietn am were wrong, because t he wa r in V ietn am was 

wrong, illeg al, and im moral.

Tn this conn ection, Mr. Ch air ma n, I point out th at four P resid en ts; 

namely, Eisenhower. Kenne dy, Joh nso n, and Nixon all said the same 

th in g in almost identical wo rds : T hat we were in th at war in ord er to 

help defend and pres erve the freedom and self-gove rnm ent of South 

Vietnam.

Gener al and u nco nditio nal am nesty, as proposed b y I I.P. 236, would 

place our Na tion's stamp of appro val upon the false and dangerous 

policy that any citizen h as the rig ht to obey only those laws o f which 

lie app roves and disobey those he does not like. Is th at wha t the war 

resiste rs believe? Surely all Members of Congres s oug ht to know, as 

all common citizens know very well, t hat in th at direction lies anarchy 

and the destruc tion o f orderly gov ernm ent. Th e s pi rit tha t says. “I will 

obey only the laws I conside r good for me,” is the very lifeblood of 

disord er, of lawlessness, of public violence. It must not be tolera ted , 

much less officially encoura ged, in the U nited State s of A merica.

Gen eral a mne sty, as prop osed by th is bill, would pra cti cally sentence 

to de ath ou r f utu re m ilitary str ength . If these d eserter s, d ra ft d odgers, 

and gen eral vio lato rs of military laws, along with their subversive, 

treaso nab le coun selors, are exonerated and their violations of law 

given appro val, why should anyo ne in the futur e answer the call to 

military du ty? Wh y should any young man enlist, or resp ond to the 

dr af t, if the law violato rs, hiding beh ind false moral and ethical 

princi ples, are to receive t he same honorable tre atmen t as he will ?

Mr. Ch airma n, I pause here to say th at in my opinion the one thing 

imm oral and dishono rable ab out th e l ate w ar in defense o f the freedom 

and self-governme nt of South Vietnam was the refusal of our G overn ­

ment to perm it our fig hti ng men to win a prom pt, complete , and final 

victory . As one who prou dly wore the unifo rm of my country in time
307

of war—a war we were told to win. and did win—I declare that never 

again should our young men be enlisted or drafted for combat duty 

without full public assurance that they will be allowed to win a victory 

as promptly as possible. Had this been our policy in Indochina, it 

would have saved the lives of thousands of our boys, and tens of 

thousands of the Vietnamese people—lives th at were lost because of 

our no-win policy of uncertainty and cowardice.

Afte r bill 236 is consigned to the oblivion it deserves, what then? 

Let us follow that wise course, the one followed after World War II, 

so ably presented before this committee by one who was th ere : Either 

by congressional action or Executive order, let us have a commission 

whose duty it will be to take up and study, individually, each case 

coming under violation of the Selective Service law or acts pertaining 

to military duty. Let those wild have a case of honest misunderstanding 

of their rights as conscientious objectors be considered. Let the backgrounds. the records for obedience to law and order or for lawlessness, 

and any extenuating circumstances, be carefully considered. Let the 

civil rights of each person be protected. Then as under the successful 

work of the former commission, let recommendations for justice he 

done. Let those who willfully violated the laws of this country be given 

the proper penalties.

I agree with my fellow veterans and many fellow citizens who 

oppose assigning some “community service” to the war resisters as 

atonement for their violations, such as work in a hospital or welfare 

center. Those regularly employed in such institutions are working 

there because they consider such service as honorable and helpful to 

humanity, and not as punishment for some crime. Let us not degrade 

them by diluting their ranks with those to whom patriotism and service to country meant nothing at all in time of war.

Xo one, so far as I know, has ever successfully accused the former 

commission of bias or injustices in their handling of the individuals, 

case by case, from World War II. Their plan proved just for all. It 

will prove so again.

That ends my formal statement, and I thank you. Mr. Chairman.

Mr. Kastexmeier. Do I understand that you formally served in 

this body ?

Mr. Armstrong. Yes, I did.

Mr. Kastexmeier. When was that?

Mr. Armstrong. The 82d Congress, from Missouri.

Mr. Kastexmeier. I think that is before anyone presently on this 

committee served. Mr. Rodino and Mr. Donohue may have served 

then.

You are presently associated and have been in the intervening years 

with the Readers Digest ?

Mr. Armstrong. Yes, sir, I am on the staff of the Readers Digest 

and have been on their editorial board since 1944. not as a member of 

that board, but as a private citizen, and as a Veteran of World War II.

Mr. Kastexmeier. The gentleman from New York.

Mr. Smith. Thank you. Mr. Armstrong, for your testimony. And 

welcome back to the Halls of Congress.

Mr. Armstrong. Thank you.

Mr. S mith. I would like to ask a question that isn’t really touched 

on in your statement. I understand you are advocating the establish-
308

me nt of a commission of the k ind of the Tru man A mnesty Bo ard tha t 

Mr. O'Neil served on.

Mr. Armstrong. Yes, sir. I fa vor that.

Mr. Smi th . Did you hear those two young men who just prec eded 

you ?

Mr. Armstrong. Yes, sir.

Mr. Smith. Do you think it would be a good idea, if such a boa rd 

were to be establishe d, to also have th at board or a sim ila r board 

conside r discha rges less tha n honorab le on the same basis as the board 

would look into the cla ims of dra ft ev aders to see whethe r th e o rig ina l 

decision by the local dra ft boa rd, or wh ate ver it might hav e been, in 

looking to a dra ft evader, to see if the origin al decision of the local 

dra ft board should be wrong and he could be recommended for 

clemency ?

Likew ise, would you look into the military decisions on discha rges 

on the grou nd o f less tha n honorab le to see w het her th ose in the ju dg ­

ment of the commission mi gh t be recommended to be change d by the 

board of military records?

Mr. Armstrong. Yes, sir.

Mr. Smi th . Because I am sure, and I th ink we are all sure, t ha t the 

services, the arm ed services, in giv ing discha rges on terms less th an 

hon orable were not alw ays 100 per cent correct.

Mr. Armstrong. I am sure of th at , Congressman.

Mr. Smith. Mis takes were made.

Mr. Armstrong. Mis takes were made , and a lot of them . Th at is 

why I ind icated t ha t if th ere were any discha rges less than hon orable 

th at migh t be un just, 1 certa inl y feel th at the y sho uld be reviewed.

Mr. Smith. By eit he r th is boa rd, you are sug ges ting, or anoth er 

sim ila r boa rd?

Mr. Armstrong. Yes, sir.

Mr. Smi th . Tha t is all. Th an k you very much.

Mr. Kastenmeier. Th e gen tlem an from Mass achusetts.

Mr. Drinan. I wa nt to than k you, sir , fo r yo ur intere st and you r 

statem ent.

I notice th at you have been here a ll day l istening very att entat ive ly. 

An d fo r th at I am very grate ful.

Th an k you.

Mr. Armstrong. Tha nk you, Cong ressman.

Mr. Kastenmeier. Th an k you for yo ur appeara nce here tod ay, 

Mr. Armstro ng.

Mr. Armstrong. Th an k you. Mr. Chairma n.

Mr. Kastenmeier. N ext I would like to call the last two witnesses.

Fi rs t, Mrs. Pa tric ia Simon, on behalf of Gold Sta r Families for 

Am nesty.

T un derst and you are from New ton, Mass.

Mrs. Simon, you are most welcome here.

Mr. Drin an. I tak e a gr ea t deal of pleasu re in welcoming a consti tuen t. and a ve ry zealous w orker, to t his comm ittee. And I commend 

you on your statem ent, which 1 have read. An d I know that on this 

occasion as on prev ious occasions you will give a very c ompelling and 

mo vin g statem ent of yo ur convictions.

Th an k you.
309

TESTIMONY OF PATRICIA SIMON, ON BEHALF OF GOLD STAR 

FAMILIES FOR AMNESTY

Mrs. Simon. As a Gold Sta r Mo the r I welcome the op po rtu nity to 

testi fy on the issue of amn esty . I hope th at m any victims of the war 

will be inv ited to spe ak at the hearings, for Am eric ans need to hear 

from the victims. Most people in ou r country were not affected by the 

wa r which acco unts for its las tin g so ma ny years. We in the Un ite d 

States di dn ’t live with the te rr or and devasta tion we were inflicting 

9,000 miles away. Th e other reason, of cours e, is th at we were consta ntly deceived by our Government about the na ture of the conflict 

within Vie tnam, the chara cte r of the Th ieu regime (wh ich we now 

know very well and sti ll su pp or t), and the con duct of t he war which 

was no t w ar at all bu t slaughter.

An d now the p roblem of tho se who oppose th e w ar here and abroad , 

is th at it is not a p roblem to most Am ericans. It is invisible because the 

exiles themselves are invisible. Bu t m ore th an th at , I th in k Americ ans 

just don’t wa nt to look back at that war.

In form ation and insig ht came at diffe rent tim es to all of us at differen t times, in and out of the military. My son followed his conscience 

and wen t into the Army . W ith a lit tle more tim e to question ra th er 

th an tr us t our leaders, Ins conscience would pr obably hav e led him in a 

different direction. I wish it had. He was killed in Cu Shi, South 

Vie tnam, 2 days befo re his 19th birth da y, 3 weeks af te r he arriv ed in 

Vietnam. On his Ch ristmas card from Vie tnam a few day s befo re his 

death , was pic tur ed a maze and throu gh i t ran the wor ds : “The peop le 

who have worked in darkness ha ve seen a gr ea t lig ht .” Il is lig ht came 

too late fo r him to ex tricate him self from the tr ap t ha t our g enera tion 

had created, bu t this awareness came in tim e fo r ma ny courageo us 

young men to make the conscious choice of life and peace over war 

and killing an d dea th.

Roger Willia ms, a for me r exile, says in “T he New Ex ile s” th at 

there is no thing sad or neg ativ e or trag ic abo ut th is kin d of choice. 

“Th e tra ge dy lies no t in the fleeing bu t in wh at is being fled.”

W ha t was fled was the fac t th at most of t he population , because it 

did not have to choose between life and death , was allowing leaders 

with com pletely upside-dow n prior ities, and dr un k with tliQ power o f 

our position, our position in the w orld and our te chnology, to wage an 

und eclared wa r on a peasa nt population which was opposing an oppressive regim e. Thousan ds of you ng men appli ed for CO ’s and were 

refused. As one res ister said , “ You’ve got to have a showa ble ideology. 

You can have it in yo ur head, bu t if you can’t verbalize it, you’ve 

had it.”

One o f the thin gs they fled was a Selective Service System th at discrimi nated consistently again st the poor and uneduc ated, and which 

allow ed 20 million draft-a ge men to legally avoid the war.

Th e Pr esiden t has said, “America will no t tu rn her hack on those 

who serv ed—n or make a mockery of th ei r sacrifice by gr an tin g 

amnesty. Th e 2 ^ million who served have pa id a price. Th e few hu ndre d who chose to des ert Americ a must pay a price.”

If those who dem and a price could hear from the resisters and 

des erte rs themselves, the agony of the ir decisions, the estrangem ent in
310

man y cases from fam ilies who could not underst and, the loneliness, the 

pov erty, the alienation, they would realize the y have pa id d early.

The Presi dent's statem ent reflects and encourages a comm on narro w 

(definition of service to one’s country —-that only blind obedience is 

pa trioti c. When the resiste rs refused to pa rticipate in the war, they 

were not des erting their country , but ra th er its disast rou s policy. 

Am ericans need to remember th at our country was fou nde d on resp ect 

for conscience and dissent.

The task first of all for pa tri otic Am eric ans who pas sionately want 

our country to once aga in be wo rthy of respect for hum ane use of its 

position and power, is to br ing t he problem s o f o ur exiles and v eterans 

with p unitiv e discharges to the attenti on of the public.

Secondly, we m ust attempt to disp el the fea rs th at block the g ra nting of an amnesty—f ear s t ha t histor y has show n to be grou nd less; fea r 

on the par t o f Congressmen t hat co nstituent s would not understand or 

accept moral lead ership. Fea r t hat all the sacrifice was in vain.

My feeling is th at it was in vain unless Am erica can face up to the 

immo rality o f o ur involvem ent in Ind och ina . T he sacrifice was in vain 

unless it causes us to res urrec t the ideals on which our cou ntry was 

foun ded. To continu e to punis h those who prem atu rel y took the position th at m ost A merica ns now tak e on the war, is to deny ourselves, as 

a na tion, the opp ortunity to do some grow ing up.

One o f the m ajo r obstacles to the ret urn of our political refugees, is 

the wid espread feeling th at an amnesty wou ld be un fa ir to the men 

who have died in Ind och ina and to their paren ts. I am here to tr y to 

counteract, this feeling , and I speak for a number of oth er gold s tarpa rents aro und the country. We would like othe r Am eric ans to know 

th at we a re in no way compensated for our loss by the c onti nued pu nishm ent of those who resiste d the war. In fac t, wo w ould like to say, 

“F orgiv e us for pre sen ting you with such cruel choices,” and welcome 

them fully into our society where they are needed.

I ask the gentlem en of this committee to th in k abou t losing their 

child ren in an illeg al, undec lare d, unjustified war and ask themselves 

if they wouldn’t t ha nk God if their sons h ad fou nd the conscience and 

the courag e to resist th at wa r.

Fu rthe r, would the y wan t to be responsible for keeping oth er families unnecessarily ap art.

We feel th at the gr an tin g of a uni ver sal, uncond itional amn esty 

wou ld be a living mem orial to all the young dead sold iers who leave 

us the task of giv ing meaning to th eir deaths.

Th e first tas k of all fo r pa tri otic Am eric ans who basically want 

ou r country to once again be wo rthy fo r resp ect fo r hum an use of 

its position and pow er is to bring the problems of our exiles and 

veterans with punit ive discha rges to the att en tio n of the public. If 

those who dem and a pric e could hear from the resiste rs and the 

deser ters an d the ir fam ilies, the agonies of their decisions, the estrangement in many instances fro m fam ilies who cou ldn ’t understand, the 

loneliness, and the poverty and the aliena tion, the y would realize th at 

they have paid dea rly.

And. Mr. Ch airma n, just before I came in to testify, I learne d th at 

there is a women here who has a lette r from her son who is in exile. 

Th e lette r was wr itten while he was a repo rte r coverin g the wa r in
311

Vie tnam and befo re lie received his ind uction notice. In th is let ter , 

he describes the reasons lie must refuse ind uct ion into the military . 

Wo uld the com mittee gr an t permission fo r this mo the r to rea d the 

let ter th at she has received from her son?

Mr. K astenmeier. Let me consult with counsel on this.

Mr. Dixox. You may wish to schedule Mrs. Morrow as a witn ess 

at a later date. We have received many let ter s from men expla ining 

why the y are in exile. These have been accepted for the record. We 

could handle th is lette r in the same manne r.

Mr. Kastenmeier. Yes. I wou ld be pleased to receive the lette r fo r 

the record. I think in the inte res ts of proceed ing in an orderl y fashion, 

we would encourage th at person to so sub mit the letter.

Mrs. Simo n. She is not listed as a witness. She ju st hap pen ed to 

come to the he aring to meet peop le who are worki ng fo r amnesty. 

We just discovered she was here about an ho ur ago.

Mr. Kastenmeier. As a matter of fac t, I th in k man y people here 

have one conn ection or anoth er wi th amn esty.

Mr. Smith. I won der if she could subm it the lette r fo r the record.

Mr. Kastenmeier. Could she subm it it ?

Mrs. Simon. T ha t is w hat I was requesting , th at she rea d the lette r.

Mi-

. Kastenmeier. Subm it it fo r the reco rd, no t rea d it.

Un fo rtu na tely, one of the reasons we are ru nn ing af te r 5 o'clock 

tod ay, is because we are try in g to accommodate more people with 

pe rhaps more intere st th an we ord inarily show, in attempting to o pe rate effectively as a leg isla tive body.

[The lette r from Mike Morrow referre d to above follow s:]

February 28, 1968.

Mr. and Mrs. John Morrow,

R.R. 3, Bo.r 3210,

E. Wenotebce, Wash.

Dear Mom and Dad: I feel very guilty for not writing sooner. I have just 

returned from Hue. I stayed 25 days until the end of the lighting. I am returning 

again today. I did not write because I was both exha usted by the sheer task of 

recording what was an epic battle in the VN war & th e equally important one of 

keeping alive and because it was impossible for me to get mail out.

I apprecia te your anxiety for my safety , indeed at times I was quite anxious 

about it myself. I do not want to kid you or myself. It is not difficult to get zapped 

over here and I was most for tun ate to get through all in one piece. One re porter 

friend of mine lost an eye and ano ther was cut moderately by shrapnel. I only 

managed to lose my glasses in a dramatic charge by troops of the 1st Bat., 3rd reg. 

1st Div. ARVN on a VC machine gun position along the N.W. corner of the city's 

walls.

In 25 days I saw much heroism, death, bru tality, and destructio n on all sides 

and I left Hue with a rich appreciation for the horror of war. Many of my 

friend s who lived in the city are now dead or missing. What was a b eautiful and 

quiet city has become rubble. Walls of houses shiver in the wind without roofs 

and windows, a labyrin th of tombstones to a people and civilization that now lies 

a grotesque and stinking corpse beneath a tatter ed pall of clouds that refuses to 

cry. With this in mind I have decided t ha t I will not serve in the military as long 

as the war is carried on under the present conditions. I will not protest the war 

and I w ill continue to w rite as objectively as possible about it. But I will n ot be 

a part of a policy which has no rational foundation yet articulated to me and 

which borders dangerously to a crime aga inst humanity. I hoj>e you understand. 

If history is not to be the fate of the irrati onal forces of men and the natur al 

forces of the ir environment, then it must he resisted by th e friction of conscious 

decisions of men striving for ratio nality and dedicated to principle.

Take care, d on't worry about me. I love you both very much.

Mike.
312

Mr. Kastenmeier. I) o either of you have questions of the witness?

Mr. Drinan. M rs. Simon, I want to th an k you fo r coming. I know 

tlia t the subcomm ittee will be very intere sted in some of your experiences con cerning the att itu de s of Gold Sta r Mo thers and Gold Sta r 

Fa milies with rega rd to amnesty.

Could you tell us jus t a b it about what you have fou nd amon g Gold 

Sta r Families and their attitu des?

Mrs. Simon. U nfor tuna tely this p roject is new. Th e pro ject consists 

of com municatin g with oth er Gold Sta r Families . We have only 

done one mailin g, and th at was done exa ctly a week ago today. We 

hav e ha d a li ttle bit o f response. Out of nin e letters, seven were opposed 

to amnesty, two were in fav or of amn esty , and one fam ily wants to 

help. The y feel very much in fav or of amn esty . Bu t it is too early 

to be able to come to any conclusions or mak e any gener alities abo ut 

th ei r feelings.

Mr. Drinan. Could I ask a related question?

I know th at you have spent a long day here and he ard all the wi tnesses. Would you give yo ur jud gm ent to the committee as to wh at 

is the real resistance to amn esty and where th e resistance comes from?

Airs. Simon. I think the resistance is in the pub lic in gen eral. Bu t 

I feel th at one of the major p roblems is t hat th is resis tanc e is e nco uraged bv the pre sen t admi nis tra tio n. If the peop le don’t know how to 

cope with som ething like am nesty, and are to ld on TV several tim es a 

year th at we can ’t have this, and are given several reasons th at we 

can ’t, inc lud ing th at it would n’t be fa ir to Gold Sta r Pa rents, the n 

people who have no alternate ways of th in ki ng abo ut amnesty and 

have no inform ati on are incline d to go along wi th th e lea der ship on 

som ething like that.

An d the problem is th at the public is no t inf orm ed about amnesty. 

The ad mi nis tra tio n ref ers to “ several hu nd red” deserters. We ll, we all 

know there are tho usands and tho usands . He ref ers to th eir fleeing 

th ei r cou ntry, deser ting th eir c ountry, abandonin g th ei r cou ntry. And 

we who un derst and the situatio n un derst and th at the y wer en’t abandonin g th eir country at all, most of them love th ei r co untry very m uch, 

but the y are disc ouraged with their co un try ’s policy, especially in 

Vietnam.

Mr. Drin an. In conection with your work, do you know of any 

organiz ation besides th e Vie tnam Ve terans Ag ainst the W ar t hat are 

org anized on behalf of some form of amn esty? Maybe you can tell 

us wh at, if anyth ing, the VV AW is doing.

Airs. Simon. I ha ven’t been in touch w ith the V VA W recently. T hey 

are wo rking fo r amn esty. I am no t up to date on th ei r activities. Bu t 

there are very ma ny org aniza tio ns wo rki ng for amnesty, a large 

numb er of org aniza tio ns all over the cou ntry.

Mr. Drin an. B ut th at is the on ly veterans g roup t hat you know of?

Airs. Simo n. I can ’t rem emb er the name of it, bu t there is anoth er 

veteran gro up wo rki ng fo r amnesty.

Air. Drin an. Yo ur testim ony is very mo vin g an d compelling, and 

I am very grate ful.

Air. K astenmeier. Th e Con gressm an fro m New York.

Air. Smi th . Th an k you, Air. Ch airma n.

Th an k you. Airs. Simon, fo r presentin g this mo vin g statem ent to us.

I hav e one question fo r you, and th at is this. Supposing th at y our
313

son had died in the course of a legally justified a nd moral w ar, if there 

is suc h a thing , a nd you believed t ha t it was a legal, m ora l a nd justified 

war, would you s till feel abo ut amn esty and those who had chosen n ot 

to be involved in tha t as you do in the case of V ietn am ?

Mrs. Simo n, T ha t is a ha rd question to answ er, because I only have 

experience wi th one war, this war. I feel th at I would sti ll wa nt 

amnesty. It seems to me th at the re is n othin g gai ned fo r a cou ntry or 

fo r ind ivi duals by kee ping our yo ung people out of their own home 

lands. It makes no sense. I can’t see any pu rpo se to be ga ined . I am sure 

I would still be fo r amnesty.

Mr. Smith. Th an k you.

Mr. Kastenmeier. I appre cia te yo ur statem ent , M rs. Simon. Th an k 

you very much.

Now as ou r con cluding witness tod ay we hav e Rev. Rober t Ba rger, 

who has also w ritten extensively on theo logy and amn esty.

You may proceed.

Mr. Drin an. May I ju st welcome you here. I have a flight to my dis ­

tric t th at won’t wa it for me, b ut I rea d y ou r testimo ny, and I am very 

moved by it. It is a very effective sta tem ent, and I am most grateful.

TESTIMONY OF REV. ROBERT NEWTON BARGER

Fa th er Barger. Than k you , Mr. Chairma n.

May I ask that th is statem ent be subm itte d f or the record.

Mr. Kastenmeier. I t w ill be received witho ut objection and made a 

par t o f th e record.

Fat he r Barger. Tha nk you. An d I will summarize it briefly .

I would like to prefac e i t w ith a request, or just my own o bservation , 

on a sta tem ent th at was mad e a couple of witnesses ago, and th at is 

th at the supreme political act is war. I think th at the supreme poli tical 

act is th e achievem ent o f th e common good. An d I t hi nk th at there m ay 

be more th an a questio n of term ino log y th ere.

Am nesty, I would like to suggest and hope, is a means of bringing 

abo ut the common good.

In speak ing tod ay fo r amn esty , which means forgettin g, I am not 

sug gesting t hat we forget th e war. An d I think th at G od sho uld h elp 

us i f we should ever forg et this pa rti cu la r war. W ha t I am recommending is th at am nesty be granted as a means of fo rgettin g the question of 

fu rthe r punish me nt in connection w ith it.

I th in k a very im po rta nt po int to stress—and if I offer nothing 

more th an th is I will feel th at I have serv ed my pur pose—th e meaning of amn esty, it does no t mean exo neratio n, th at thes e peo ple were 

righ t who resisted, and, there for e, we recog nize th at by exonera tin g 

them . It does not mean pardo n, on the othe r hand, th at these people 

were wro ng, bu t we forgiv e them . Rathe r it means th at we are not 

ma kin g a jud gm ent, every person who resiste d—a nd as was pointed 

out, it was a very small minority of peop le who were called on pe rsonally t o make th at decision—ev ery person who resiste d ha d to make 

th eir own decision. Bu t I suggest th at we as a nation are no t in a 

historical pos itio n yet to decide on th e blame fo r the Vietn am war.

I would say ju st a wor d in closing here that I th in k the ology wou ld 

su pp ort our no t allow ing domestic recri mi natio n f or the wa r to devolve 

by de fault on those who would no t coo perate wi th the Go vernm ent’s

31- 658 —74------22
314

purpose s. I poin t to only two verses in the Sc rip ture. The first is from 

the Book of the Lev iticus, chap ter 19, verse 18. which the witness 

for the American Jewi sh C ongress, Rabbi Heschel, quoted. T he verse 

has a second par t which we are much more fam ili ar with. The verse 

in its en tir ety rea ds:

You shal l not. take vengeance or hear any grudge aga ins t the sons of your 

own people, but you shall love your neighbor as yourself.

And th at Jesus made into the second pa rt of the grea t 

Com man dme nt.

The o ther verse—an d I would like to close w ith th is—is a verse from 

the Lo rd's Pra yer :

Forgi ve us our tresp asses as we forgive those who tresp ass aga inst us.

I sugg est th at th at is a very risk y pray er fo r anyone to say who 

takes a ha rd line aga inst amn esty. Th an k you.

[The full statement of Rev eren d Ba rger follow s:]

Test imon y of Rev. R obert Newton Barger. Marc h 8, 1974

My name is Robert Newton Barger. I reside at 604 Ea st Armory Avenue, 

Champaig n, Illino is 61820. I am a form r political science teach er, and presently 

am instru cto r in Chr istia n Morals in the Newman Foun datio n a t the University 

of Illinois at Urbana-C hampaign . I also serve as an atto rney before the Trib una l 

of the Catholic Diocese of l’eoria, the chairman of the Church Law Committee 

of the l’eoria Pri est Senate, the presi dent of the Religious Workers Association 

at. the Univ ersity of Illinois, and the presi dent of the Committee for a Healing 

Repat riation (an Illinois not-for-profit c orp ora tion !.

I would like to include in my testim ony today the pra yer which I offered yest erday in the House chamber while s erving as v isiting Ch aplain to Congress, and also 

the chapter s dealing with theology, history, law, people, ethics and strategy from 

my book Amnesty: Wha t Does It Really Mean, published this year by the Committee fo r a Healin g Repa tria tion a t the above addre ss.

The pra yer is as foll ows :

“You shall not take vengeance or bear any grudge aga inst the sons of yo ur own 

people.”—Leviticus 19.18. Fa ther of Mercies, inspir e us for leadersh ip in healing the divisions that exist 

within our Nation. As we have made efforts to make peace abroad , stren gthen 

our purpose to do likewise now a t home. Never let us forge t the missing in action, 

nor the retu rned veterans, or those who for reasons of conscience have left our 

constituencies . While we can not bring back our sons who have bravely died, move 

us to reflect Your generosity and concern for those still missing in action, for our 

forgotten veterans, and for our exiled sons. We ask this through Him who came to 

seek a nd to save the lost. Amen.

theology and am nesty

Today the United Stat es of America, our homeland, is a nation divided, and 

as Pres iden t Lincoln has reminded us, a house divided aga inst itse lf cannot long 

stand . We have wounds, a nd they need to be healed. We a re not at one, and so we 

stan d in urge nt need of reconciliation. The Vietnam w ar, whose decade-long du ration was responsible for much of the division which we exjierience, has not left 

us totally at peace, even tlio our involvement in it is now over. There is still the 

question before u s : . . . wha t to do with the war r esisters. This question involves 

a tension between justice on the one hand, and mercy on the other. The resolution th at we make of this tension between justice and mercy will provide the 

answer to what kind of reconci liation we can reason ably expect. In other words, 

how we trea t those who have conscientiously evaded the dr af t or deserte d from 

the war will determ ine in large pa rt wheth er we will, or will not, have th at 

domestic tr anq uili ty of which our Constitutio n speaks.

I am going to make here some theological o bserv ations on th e p olitical question 

of amnesty. I would like to sta te at the outset that I am well aware of the danger 

of atte mp ting to tak e concepts from the spir itua l realm and apply them in the 

political order. The bri llia nt Pro tes tan t theologian, Reinhold Niebuhr, in his
315

classic study entitled Moral Man and Imm oral Society, lias expressed a healthy 

pessimism about the possibility of making an indiv idualistic ethic apply to a 

collective such as a nation-state. But even such a realist as Niebuhr goes on to 

sa y:

"Every genuine passion for social justice will always contain a religious 

element with in it. Religion will always leaven the idea of justice with the ideal 

of love. It will prevent the idea of justice, which is a politico-ethical ideal, from 

becoming a purely political one, with the ethical element washed out.” 1 So, 

theology can and must supply ideals for the reflection of the national sovereign 

. . . and in the case of a democracy such as ours, the sovereign is us. T he government is responsible to us, and that is why, ultim ately, we the people, will get 

the kind of justice or mercy that we earnestly seek—or, . . . we won't get it, if 

we grow indifferent.

The question of amnesty for the Vietnam war resisters illustrates the tension 

between justice and mercy which is troubling our society today. I should like 

t<> turn to sacred scripture for some insight for a solution to this problem. But, 

before I do, I thin k it is necessary to point out that there are at least three 

possible motivations for the granting of an amnesty. First, we may believe that 

the war resisters were morally wrong, th at the ir actions encouraged the North 

Vietnamese and thus prolonged the war, increasing the loss of life on both sides, 

but that by means of an amne sty we should forgive them. Secondly, we may 

believe th at the war resisters were morally right, that the war had gone on 

for nearly a decade and might have continued much longer were it not for the ir 

dissent, and hence by means of an amnesty we should exonerate them. Or 

thirdly, we may not make any public judgment about the war resisters, ref raining from eith er condemning or condoning,them, but simply bring them back and 

rep atriate them, forgetting about the guilt or innocence aspect. This is literally 

the meaning of the word “amnesty” : th at is, “forgetfulness,” or “oblivion.” 2

For purposes of reflecting on the problem in the light of scripture, I will be 

dealing a t various points in my scriptural examples w ith these three motivations 

to see if there might be a theological basis for amnesty. Before I sta rt, I'll give 

you my own personal opinion as a former political science instruc tor and current 

Christian Morals instructor, and that is that the war resisters were in fact 

morally correct . . . but I will go on to give you a preview of my ultimate 

conclusion, which is : that we should avoid judgm ent on the morality of the war 

resiste rs’ action s and follow the third motivation for amnesty, name ly: that 

we take amnesty in its lite ral sense and not make a judgment one way or the 

other, but simply p ut the Vietnam war behind us and be reconciled to one another. 

Now. what does the Bible have to say about all this?

Let us look first at the Old Testament. We usually think of Old Testament 

morality as very har sh : “An eye for an eye and a tooth for a tooth.” In fact, 

however, when we take the Old Testame nt as a whole and don’t simply draw 

out “one-liners” like the one I j us t quoted, we see that mercy is one of the most 

prominent features evident in the Old Testament. Beginning on the first pages 

of the Bible, where humankind spoils God’s gift of life by sinning, we see the 

gracious mercy of God at work offering humankind ano ther chance.

As often as man sins—and according to salvation history, that's pretty 

of ten!—God calls him back again. . . . God is not only a giving God, lie is also 

a forgiving God. And He tells us in the Jewish Law, in what Jesus was lat er to 

join to love of God as the greatest commandment, that we must be giving and 

forgiving too. This is the way it ’s staterl in the Book of Leviticus: “You shall 

not hate your brother in your heart, but you shall reason with your neighbor, 

lest, you bear sin because of him. You shall not take vengeance or bear any 

grudge aga inst the sons of your own people, but you shall love your neighbor 

as yourself.” 3 The reading about the Cities of Refuge from the Rook of Joshua 

reminds us of God’s instruction th at those who have killed thru accident should 

be allowed a place of refuge and then free return to the ir homeland? Of course 

the question before us today does not concern those who killed without premeditation. but rather those who, with premedita tion, refused to kill. The cases 

are not the same, certainly, but I suggest that there may be a parallel. How 

God provided for the solution of this case in the Bible may provide a clue for 

the solution of our amnesty problem today.

1

 Reinhold Niebuhr, Moral Man and Immoral Society, New York, Charles Scribner’s Sons 1932. p. 80.

2

 From the Greek. ayvnoTia. 3

 Leviticus 19 : 17—18.

*Joshua 20 :1-16 .
The illustratio n of God’s mercy and loving faithfu lness to his people, despite 

their unfaithfulness, is spread upon almost every page of the Old Testament. 

But it is in the New Testament that Jesus gives us the most amazing revelation 

from God, namely, that God is a community. God is three persons in one b eing: 

Father, Son and Holy Spirit. If we ar e created in the image and likeness of God, 

then we too must live as a community. St. John defines God’s unity in community 

with one word : love. The First Letter of John says q uite simply : “God is love.” 6

Jesus came to tell us that if we are to live the life of God, if we are to have 

the Spirit of God in us, we must be loving people. To quote furth er from the 

First Letter of Jo hn : “Beloved, let us love one an ot he r; for love is of God, and 

he who loves is horn of God and knows God. lie who does not love does not know 

God ; for God is love.” 0

But of course this leads us to ask the same question th at the lawy er asked 

upon hearing the command of love from Jesus, and th at is : “Who is my neighbor?” 7

 It is not without relevance to our topic to note that the person that 

Jesus described as neighbor in this parable-answer was a Sam aritan . . . one 

who had broken off from the land of Isra el and who adopted an altern ate form 

of the Jewish religion. He was a dissenter, yes, even a resistor as fa r as the 

Jews were concerned. They hated him. And he was the person th at Jesus chose 

to exemplify the idea of neighb or!

In making mention of a parable, I would like to point out that Jesus did not 

give ready answers for problems. The Gospel records him as giving only one 

major commandment, and that is to love. To illu strate it he simply told stories. 

The parab les of Jesus are meant to show the quality of love th at he asks of us.

Let’s take a brief look at two of them. First, the parable of the Laborers in 

the Vineyard. The householder in the para ble represents God. He sends people 

out to work at the first hour, promising to give them a denarius. Later in the 

day he sends other people out into the vineyard, promising to give them “what 

is righ t.” 8

 Finally, at the eleventh hour, he goes out and finds some men still 

standing idle and he sends these in too, again promising to give them “what is 

right.” #

 When it comes time to settle accounts, he tre ats all of them the same! 

They all get a denarius. And those who had been working all day long s tarted 

to grumble. They said it wasn’t fa ir ! They said they had borne the heat of the 

day and here these malingerers came in after the real work was done and they 

were rewarded the same as the people who had responded to the original call!

And what does Jesus say? I thin k the reply he has the householder give is 

really instructive of our handling of the amnesty question. He says to the one 

who bore the hea t of the day : “Friend, I do you no wrong. I choose to give this 

las t person as much as I give you. Am I not allowed to do what I choose with 

what belongs to me? Or do you begrudge me my generosity?” 10 Tra nslated into 

present terms, the teaching of Jesus seems to say that magnanimity to the war 

resisters would not be unfair to those who served. The question before us, then, 

is whether we care to make God’s logic our own.

It should be noted that this fair ness consideration can cut both ways. Russell 

Baker, a columnist for The New York Times, has suggested th at it was really 

the American public who dodged the war issue. It sent its young men off to 

fight and die and, to this day, cannot tell them w hat it was all about. It is perhaps 

kinder to us all if we do not try to e nter into judgm ent now.

I’d like to consider next the parable of the Prodigal Son, or, as I think it might 

be better named, the para ble of the Forgiving Father. The younger son in the 

story took his part of the inheritance and went off to a far-away country. And 

after awhile, the memory of his homeland and his father’s house awakened 

in him the desire to return. So he started back, thin king of the words he would 

say to ask for readmission to the family. He really didn’t get a chance to get 

halfway thru what he had decided to say because the father , who represents 

God the Fa ther in the parable, ran out to meet the son before he had even 

gotten back home. There was no knocking at the door or begging to come in 

necessary by the son. The father threw his arms around the son and invested 

him with all the signs of full membership in the household: the ring, the shoes, 

the robe. Then he decreed a feast to celebrate the return.

8

 1 Jo hn 4 : 8.

8 1 John 4 : 7-8.

7

 L ak e 1C : 29.

8

 M atthew 20:

9

 M at thew 2ft :

10 M at thew 20:
317

Now comes t he most interest ing pa rt of the story. The other broth er, the older 

one, comes along. When he finds out what happened, he is upset. He won’t go in. 

Now he refuse s to be pa rt of the family. The fathe r conit's out to him and the 

elde r son says: “These many years I have served you, and I never disobeyed 

your com man d; but when this son of yours came, who has devoured your living 

with harlo ts, you killed for him the fatt ed calf. ” The fat her responds: “Son, you 

are alway s with me, and all th at is mine is yours. Bu t it was fitting to make 

merry and be glad, for this your bro the r”—not ‘th at son of your s’ but ’your 

bro the r’—“was dead and is alive; he was lost and is found.” 11

This parable, as the former one, tells us th at reconciliation, for God, isn’t 

based on str ict justice, but ra th er on generosity.

Now I would like to look briefly at St. Pa ul’s teaching. In his let ter to the 

Ephesian s he asks us not to grieve the Holy Spi rit—God’s spirit in us. He says: 

don’t be unf aithfu l to it. He asks us to put all bitterness and wr ath and anger 

and clamor and malice away from us. li e asks us to be tend erhe arted and forgiving, as God has forgiven us. We are called ui>on to be imitato rs of God. We 

have to pass along forgiveness.12 Thus in the Lord ’s Pra ye r we pray : “Forgive 

us our trespasses, as we forgive those who t respas s aga inst us.” 13 I submit tha t 

this is a very risky pra yer f or someone to say who take s a hard line on a mn est y!

Perm it me to ret urn to one final quote from the Gosi>el. Jesu s says: “Be 

merciful, even as your fat her is merciful. Judg e not, and you will not be judged; 

forgive, and you will be forgiven . . . the measure you give will be the measure 

you get back.” 14

It is perh aps thou ghts such as these th at inspir ed the late Rich ard Card inal 

Cushing to ask the following question in his las t Ea ste r message: “Would it be 

too much to suggest th at we em pty out our jails of all the protesters—the guilty 

and the innocent—without judgi ng th em ; call back from over the bord er and 

arou nd the world the young men who are called dese rters , drop the cases th at 

are still awaiting judgment on our college y out h? Could we n ot do all of this in 

the name of life, and with life, hope . . . wherever our young people, even for 

reasons we do not know, stan d in need of mercy let us reach out to them.” 15 The 

Cardinal puts that as a questio n—and th at is the way it must be trea ted, as a 

question p ut to each of us.

I person ally believe that it would not be too much to ask because I l>elieve that 

we, as a nation, curren tly need reconci liation more tha n we need vindictive 

prosecution of illegal conscientious a ctivity .

The best conclusion to these reflections might well be a prayer. The one I choose 

is attrib ute d to a man of several hundred years ago named Fra ncis of Assisi. 

I hope it comes to expre ss more and more a majori ty se nti men t:

Lord, make ns instr uments of your peace.

Where there is h atre d, let us sow love.

Where there is injury, pardon.

Where the re is doubt, faith .

Where there is de spair, hope.

Where there is d arkne ss, light, and

Where there is sadness, joy.

Divine Master, gra nt th at we may not so much seek to be consoled as to co nsole ; 

to be u nderstood as to un de rst an d; to be loved as to love. For it is in giving that 

we receive. It is in pardoning th at we are pardoned. And it is in dying tha t we 

are born to et erna l life. Amen.

H IS TORY AN D A M N ESTY

The idea of amnesty is not new, nor is it exclusive to the United State s. The 

precede nt for it date s back to 403 B.C. in Athens when Thr asyb ulus proclaimed 

an amnesty which prevented citize ns from being punished for past politica l 

actions.

An amnesty was gran ted to the Huguenots in Fran ce in 1598. Napoleon decreed 

an amnesty in 1802. An a mnesty was also granted in 1871 after the civil rio ts in

11 Lu ke 15 : 29 -3 2.

12 Eph es ia ns 4 : 30- 5 : 2.

13 M at thew 6 : 12.

»« L uk e 6 : 38 -3 8.

10 Qu ote d by Sen at or Edw ar d M. Ke nn edy tn Hea ring s on Se le ct iv e Se rv ic e an d A m nest y

before th e V.S. Se nate Ju dic ia ry Su bc om m itte e on A d m in is tr ati ve Pra ct ic e an d Pr oc ed ur e

(h er eaf te r ci te d as Ken ne dy H ea ri ng s) , p. 179.
318

Fra nc e. In Eng land th er e we re am ne stie s gra nte d aft e r th e Civ il W ar in 1051 

an d to th e Bo ers in So uth Africa in 1903.“ Fra nc e, Norwa y, German y, Belgium, 

Ja p an an d th e N et he rlan ds all am ne stie d th ei r en em ies an d th eir own citiz en s 

a ft e r th e se con d world w ar .”

In th e United Sta te s, fiftee n pre si de nt s ha ve ex er ci se d th e po wer of am ne sty 

on thirty -sev en se par at e oc ca sio ns.1

’ Th e first American am ne sty da te s hack to 

th e very be ginn ing of th e co un try. In 1795, Pre si de nt Ge org e W as hi ng to n gr an te d 

a ‘•full, fr ee an d entire par don ” to thos e who wer e invo lved in the Whis key 

Re bellio n, an i ns ur re ct io n in P en ns yl va ni a, o bse rv in g:

“F or thou gh I sh al l al w ay s th in k it a sa cred dut y to ex er ci se with firmn ess 

an d en er gy th e co ns titu tiona l po wers with wh ich I am ve ste d, ye t it ap pe ar s to 

me no less co ns iste nt w ith th e pu blic good th an it is w ith my pr es on al feelings 

to m ingle in the op er at io ns o f Gov ernm en t e ve ry de gree o f m od er at io n an d te nder ­

ne ss wh ich th e na tion al ju stic e, di gn ity an d sa fe ty may per m it.” 18

Jo hn Ad am s issu ed “a fu ll, fr ee an d ab so lu te par don to al l an d every perso n 

co nc erne d” in th e Fri es Re bellion of 1799. Th om as Je ffer so n in 1807 pa rd on ed 

al l de se rt er s from th e U.S. arm y wh o wo uld re tu rn to th eir units w ith in fo ur 

mon ths. Ja m es Madiso n issu ed th re e pr oc la m at io ns of th e sa m e natu re co ve rin g 

dese rt er s in th e W ar of 1812. And rew Ja ck so n gra nte d an am ne sty in 1830 to 

all des er te rs fro m th e arm y, w ith th e in te re st in g co nd iti on th a t they wo uld 

ne ve r agai n serv e in th e ar m ed forces of th e United S ta te s! 20

Th e Civ il W ar cou ld prov ide something of an an alog y fo r our pr es en t na tional 

si tu at io n. A fter th a t w ar's end, vigo rous p ro se cu tio n was no t und er ta ke n ag ai nst 

de se rt er s or d ra ft ev ad er s on th e Union side. Mo re in te re st in gl y, Abrah am 

Lincoln an d An drew Jo hn so n gra nte d am ne sty to th e Con fe de ra te s who ha d 

ta ken up ar m s agai nst th e Un ion an d couhl ha ve bee n pros ec uted fo r trea so n. 

Jo hn so n st at ed t h a t :

“A re ta li ato ry or vind ic tiv e policy, at te nde d by un ne ce ss ar y disq ua lif ications , 

pa ins, pe na lties, co nfisc ations an d di sf ra nc hi se m en t, now as al w ay s cou ld only 

te nd to hi nder re co nc ili atio n am on g th e peo ple an d nat io na l re st ora tion, while it 

m us t se rio us ly em ba rr as s, obs tr uct an d re pr es s po pu la r en ergi es an d nat io na l 

in dust ry an d en te rp ri se .” 21

Th e Lincoln an d Jo hn so n ad m in is tr ati ons were to get her resp on sibl e fo r mo re 

th an on e-ha lf of th is nat io n's am ne sties. John so n, on C hr is tm as da y. 1868. iss ued 

a un iv er sa l an d un co nd itio na l am ne sty, sa yin g: “. . . un iv er sa l am ne sty would 

te nd to secu re pe rm an en t peace, or der an d pro sp er ity th ro ugh out th e land , and 

to rene w an d fu lly re st ore confiden ce an d fr ate rn al fe el in g am on g th e wh ole 

peo ple an d th eir re sp ec t an d att ac hm en t to th e Natio na l Go ve rnmen t. . . .” 22

Rem ai ni ng civ il dis ab ilitie s co nn ected w ith th e F ourt eenth Am en dm en t we re 

rem oved by a co ng ressiona l am ne sty on Ju ne 6. 1898.’"

The re was no ge ne ra l am ne sty fo r som e tim e a ft e r th e first world w ar (a ltho 

in 1924 Pre si den t Co olidge gra nte d am ne sty to ap pro xi m at el y 100 pe rson s who 

ha d de se rted sin ce th e World W ar I arm is ti ce). 24 Th e la st am ne sty of an y 

sign ifica nc e was giv en by F ra nkli n Ro osevelt at C hr is tm as . 1933, to all viol ator s 

of th e first wo rld w ar d ra ft la w s who ha d served th eir sentences .® It is tr ue 

th a t in 1947 H arr y Tru m an gra nte d a comp lete pa rd on to 1.523 offend ers of the 

Se lective Service an d T ra in in g Act of 1940. hu t in th is in st an ce each ca se was 

co ns idered se pa ra te ly an d th e pa rd on s we re in di vi du al . D ur in g th e Korea n W ar 

P re si den t T ru m an pa rdon ed all ex-co nv ict s wh o ha d served in th e w ar fo r at 

le as t a ye ar . He also am ne stie d al l who ha d bee n co nv ict ed of de se rtio n between 

Aug ust. 1945. an d Ju ne . 1950.29

In reflec tin g on th is re pre se nta tive hi st or y, it mig ht he no ted th a t each w ar 

has been differ en t, co nd iti on ed as it was by di ff er en t tim es an d circ um stan ce s. 

Yet. I believe, th e Viet na m W ar is th e most di ff er en t of all . It has b een the lon gest 

w ar in which th e United Sta te s ha s ev er bee n inv olv ed. It s de se rtio n ra te was 

also th e hi gh es t of all American w ar s (n ea rl y do ub le th at of th e second wo rld

“ M ur ra y, Pol ne r, W he n Can T Come, Hor ne t, New York : Do ub leda y, 197 2, p. 133. w Zb id.

,R A lla n L. Da mon . “Amne sty.” American Her ita ge , Oet obp r. 197 3. p. 8. ’•Q uot ed In te stim on y of H en ry Schwa rzs ch ild . Ken ne dy Hearing *, p. 302. 20 Tes tim on y of Pro fe ss or H en ry Stp ple Co nim anger. K en ned y He aring* , pp. 18 2-92 . 21 Ibid.

22 D an iel Miglio re. “A m ne st y: An H is to ri ca l Ju st ific at io n fo r it s Con tinu in g V ia bi lity ," 

.Journ al o f Fam ily Loi r. Vol. 12. No. 1 (19 72- 7.3 1. p. 70.

23 A lla n L. Da mon . “Am ne sty, ” Am erican Her ita ge , O cto ber. 1973. p. 7.8. 2

' Thid.

n

 M iglion e. on. ef t.. p. 79.

2B N orman Wels ma n. “ A H is to rv an d Discussio n of Am ne sty, ” Colum bia Hum an Higlit* La w R ev ie w , Vol. 4. No. 2 (F all. 19 72 ), p. 533.
319

war—72.9 per 1000 for World War II. 142.2 i>er 1000 for Vietnam ).27 And finally, 

although it is difficult to document this i>oint for a number of reasons, I believe 

that Vietnam has been America’s most unpopular war.

LAW AN D AM NES TY

The first consideration under legal aspects is the problem of definition. Amnesty 

was not a recognized legal term in English common law. It was instead included 

in the word pardon. This seems to have carried over into the U.S. C onstitution 

which states that the President may “Grant reprieves and pardons for offenses 

against the United States, except in cases of impeachment.’’28 The best legal 

definition, to my knowledge, appears in a U.S. Supreme Court decision written 

in 1915:

“The one (amnesty) overlooks offense; the other (pardon) remits punishment.

The first is usually addressed to crimes against the sovereignty of the state, to 

political offenses, forgiveness being deemed more expedient for the public w elfare 

than prosecution ami punishment. The second condones infra ctions of the peace 

of the state. Amnesty is usually general, addressed to classes or even communities, 

a legislative act or under legislation, constitutional or statuto ry, the act of the 

supreme magistrate.” 28

The word "forgiveness” in the above-quoted decision should not be misunderstood. It does not imply guilt. Amnesty is neither condemnation nor commendation. As its roof indicates, it is simply a forgetting.

Gordon I). Lapides, c hairman of the Bay Area Selective Service Lawyers Panel, 

has indicated the difficulty of assessing where real guilt lies, in the following 

statem en t:

“Again and again, oqe would hear articulated the dilemma of a young man 

placed in a position of transgressing a ‘law’ no ma tter what he did. On the one 

hand, complicity in the Viet Nam conflict was variously pictu red as a violation 

of the precedent of Nuremburg, of the Geneva accords, or simply of that priv ate 

law of conscience or ‘natura l law’ which lies at the very hea rt of the American 

ideal. On the other hand, the written law of the country seemed to require 

otherwise. In the eyes of these young men, the human and moral consequences 

of the ir actions demanded that they refuse to parti cipate.” 80

The lat e Rabbi Abraham Ileschel has said : “Something precious will have 

been lost by the American people if they should regard amnesty as a ma tter of 

mercy. Much of the hope of the future depends upon a clear recognition that 

resistance to an unjus t war is a sacred right of man.” 31 It might be noted at 

this point that some of the resisters chose exile rather than prison because they 

felt that accepting a prison sentence would be seen as a tac it admission on their 

pa rt that they were wrong and the government was right. They felt the ir going 

to prison might give a legitimazation to the view that the war was legal, moral 

and just.

The reflections of Norman Cousins, although lengthy, have relevance here:

“The debate over amnesty has so fa r dea lt with only half a question. The 

half the American people have been debating concerns the war resisters. The 

half we have been ignoring concerns the war makers. If there is to be a reckoning, we cannot bypass the responsibility of government leade rs for committing 

men to fight in an illegal war—a war that divided America, created dis trust of 

authority, and that blackened our history. . . . It is difficult to ponder the discussions that went into the fra ming of the U.S. Constitution, and then to examine 

the Pentagon Papers, without reaching the conclusion that the Vienam Wa r was 

a basic violation of both the natur al rights and the legal righ ts of American 

citizens. Citizens were sent to war without congressional authorization. The 

Gulf of Tonkin resolution, which was supposed to serve the purposes of that, 

authorization, turn ed out to be the result of contrived circumstances and was 

therefo re illegal in itself. The 55.000 American lives lost in Vietnam cannot be 

regarded as le gitim ate c asualties in a military undertaking involving the security * 

of the United States. Rather, they are the resu lt of arb itrary and illegal action 

by government. . . . It is important for the American people to remind themselves 

that the United States helped to promulgate the basic principle of the Nuremburg trials after World War II. This principle held that individuals must be 

held accountable for acts of war.”

27 “ Am nesty Pro bl em .” N at io n, J an u ary 17, 1972. p. 68. 

2

’ U.S. Con st itution . Arti cle II , Se cti on 2.

28 B urdick vs. U.S . 236 U.S. 79. 94 -9 5 (1 91 5) .

3n K en ne dy Hea ring s, pp. 31 6-31 7.

81 Th e Ne ic Yor k Tim es , F eb ru ar y 20, 1972 .
. It takes an act of will rather than of logic or conscience to say that 

the Nuremberg precedents have no relevance to the Vietnam War.

. A case might be made for the fac t that such errors and horrors are 

now behind us, and that our atten tion must be turn ed to th e challenge of rehabilitating Vietnam and to the larger challenge of rema king America at home. It 

can be argued, too, th at this nation could tea r itself to pieces if it ever attem pted 

to fix the blame for everything involved in the Vietnam tragedy. Such arguments 

are not without merit. But if there is to be amnesty for government, there must 

also be amnesty for those who refused to acquiesce in the government’s efforts 

to violate its own laws and trad itions. Amnesty for all or amnesty for none.” ** 

(Cousins’ rema rks remind me of a comment of Daniel Webster's during the 

War of 1812: “Where is it written in the Constitution . . . th at you may take 

children from their parents, and parents from their children, and compel them 

to fight the battles of any war in which the folly or the wickedness of government may engage it? ”) 33

If neither the government nor the resiste rs must acknowledge guilt or insist 

upon the ir own righteousness, then differences can be overlooked. It might be 

noted that th is is different than the reconciliation between God and man in which 

man must necessarily acknowledge his guilt. Unawareness of this difference 

might cause some to reje ct amnesty even tho it is considered as reconciliation.

Another consideration under legal aspects is who has the authority to grant 

amnesty. As mentioned above, the Constitutio n vests this power in the President. 

However, the Supreme Court has held th at Congress also enjoys this power. 

It declared th at congressional amnesty “. . . extends to every offense known to 

the law. and may be exercised at any time after its commission, eith er before 

legal proceedings are taken, or during the ir pendency, or after conviction and 

judgm ent.” 34

Congress even has c erta in amnesty powers which the President does not have. 

For instance, the Fourteenth Amendment places disabilities on certain federal 

and state officeholders who have engaged in insurrection or rebellion against 

the United States. Only Congress, by a two-thirds vote, can remove these disabilities.” More importantly, while a President can grant amnesty, only Congress 

can reinstate political privileges which have been denied due to the violation of a 

law. Thus, even if a person has been prosecuted, convicted, served time and been 

released, in some states he still reta ins criminal status. He is denied certain 

privileges, such as voting, holding public office, obtainin g public employment and 

employment in licensed professions such as law, medicine, teaching, barbering, and 

taxi-driving. Congress can restore these privileges. And with respect to draft 

evaders who have fled the country, only Congress can restore the ir citizenship.3" 

Many advocates of amnesty are therefo re proposing not only the remission of 

criminal penalties, but also the erasure of criminal sta tus for every offender 

whose crime would not have been committed except for the war. Almost all advocates, however, envision such an amnesty as applying only to political crimes 

and not to ones involving injury to life or property.

For both political and legal reasons, then, the most effective amnesty which 

could be given would be one tha t would be granted jointly by the legislative and 

executive branches of the federal government.

PEOPLE AND AM NESTY

For more than three centuries, America has been the place of refuge for 

political exiles and others fleeing persecution and oppression. One of the unprecedented consequences of the Vietnam War is tha t America has now produced, 

for the first tim e in its history, its own large class of political exiles and refugees.

Who. then, are the people who might be affected by an amnesty? The first class 

consists of the dr af t evaders. Some 7,400 men have been convicted by the federal 

courts fo r draft violations during the Vietnam era. Prosecution for some 30.000 

draft violators is still landing. About 5,700 draft indictments are also pending.*7

More indictments may yet be handed down. Thousands of men never registered 

for the dr af t and hence have no present record, but are subject to indictment 

and prosecution when th eir situa tion becomes known.

32 E ditori al by Norman Co usins , W or ld 4 /1 0 /7 3 , p. 14.

33 W illiam Wick, “Th e Ca se fo r an Unc on di tion al, Unive rsal Am ne sty fo r D ra ft E va de rs 

an d Armed Fo rc es D es er te rs ,” Bu ffa lo La w R ev ie w , Vol. 22 (F all 19 72 ), p. 31. 34 E x na rte G arlnnd 71 U.S . 333 (1 80 6) .

35 U.S. C onst itution, Amendm ent XI V, Se cti on 3.

3# U .S. C onst itution, Article I, Se ction 8.

37 A m nes ty : Qu es tio ns and Ans wer s, A CLU l ea fle t pr ep ar ed by H en ry Sc hw arzs ch ild .
321

The second class consists of the deserters. According to the Departmen t of 

Defense, there are now over 32,000 deserte rs at large. They ar e eith er living 

abroad or underg round in this country. Almost 100.000 men p er y ear deserted from 

the mili tary during the height of the Vietnam War.34 Most of them were eith er 

appreh ended or volu ntari ly retu rne d to mil itary control. Many of the deserters 

did not have the benefit of an advanced education or much reading and discussion a bout the m erits of the war before being drafted . Many saw honorable fro ntline service in Vietnam before deserting. In any case, they determined only aft er 

ente ring the a rmed services th at they could not accept mili tary life and war. The 

difference between them and the draft evaders is basically one of timing.

To exclude dese rters from amnesty would be to make amnesty ano ther ins tru ­

ment of discrimination in our society on the groun ds of economic class and race. 

The burdens of the dr af t and of combat have fallen dispro portionate ly on the 

poor and the non-white men of our society because of the ir lack of college deferments, the ir lack of counseling about conscien tious objecto r eligibili ty fan eligibility which, incidentally, was broadened to include atheis ts and agnostics late 

in the war—too late for ma ny ), and their ignorance of othe r “legal” means of 

dr aft evasion which middle and upper class white men could, and did. use as an 

excuse to avoid the war. To extend thi s inequity by amnestying dr af t evaders, 

but not deserters, would be a tragedy.

A final note might be added about terminology. The term “desertion” has lost 

its old, treaso nous flavor. The dese rter s withdrew from participation in a war 

waged by the ir country, b ut they d id not actively join th e enemy.

The t hir d class consists of the exiles. An estim ated 30 ,000 to 40.000 w ar resisters 

are in exile living abroad , most of them in Canada. A few h undre d are in Sweden, 

England, Fran ce and other countries. The exiles comprise both dr af t resi sters 

and deserters. Canada admitted about 20.000 d raft-age American men as “landed 

imm igrants” durin g the Vietnam era, but many of the exiles could not meet the 

stri nge nt Canadian qualific ations for becoming “landed.” They enter ed Canada 

as tou rists and have remained there beyond the expiration of the ir tou rist i>ermits. (A tem porary easing of the requi rements for gainin g “landed” sta tus in 

mid-1973 did not entirely remedy thi s situatio n.) The ir illegal sta tus is a severe 

disab ility (fo r example, they canno t legally hold job s), but the Canadian governm ent has not deported or extradic ted any American charg ed only with the 

violation of the dr af t law or with desertion.39

The fou rth class consists of th ose with court-m artia l convictions. About 550,000 

men were convicted by mil itar y cour ts of offenses that would not be crimes in a 

civilian co ntex t: over hal f for absence with out leave, abou t one-tenth for disobedience, other s for conduct bringing discredit upon the armed forces, and the 

like.40 These men would not have lteen in the mil itary except for the draft and 

the war, and the ir crimes would not have been committed except for the dra ft and 

the war.

The fifth class consists of those holding less-th an-honorable discharg es. About 

450.000 Vietnam-era vete rans have such discharg es. These discha rges are given 

eith er adm inist rativ ely, th at is, with out any due process whatever ( “general” and 

"und esirable” dis cha rge s), or as a result of court-m artial ( “bad conduct” and 

“dishono rable” discha rge s). All less-th an-honorable discharges car ry with them 

severe disab ilitie s, some including loss of veterans’ benefits, disqualificatio n for 

civil service and other employment, licenses, and the like.41 Less-than-honorable 

discharges have sometimes been used as a device to rid the service s of those considered to the undesirable because of bed-wetting, "bad att itu de ,” homosexual 

tendency, etc.—even tho they have commited no crime.42

The sixth class consists of the civilia n protest ers and resis ters. Duri ng the 

ten years of the Vietnam War, hundred s of thousands of Americans protested 

the wa r in demonstr ation s and acts of resistance. Thousands were arre sted , some 

on minor charges such as disturbing the peace and trespa ssing , and othe rs on 

maj or c harge s such as conspiracy and espionage.43

The seventh class consists of the families and frien ds of the exiles. They are 

eith er living with them in exile or sep arat ed from them here at home. They

» Ibid. 39 I bid.

40 Ibid. 

« Ibid. « “The Less Than Honorable Dlscharsres,” Address by Joe Garcia, Director, Division of Veterans Affairs, City of Seattle. March 27. 1972. 43 Amnesty: Questions and Answers, op. clt.
322

wo uld no t be th e di re ct su bj ec ts of an am ne sty, bu t th ey wo uld benefit from it 

by be ing re un ited w ith tho se to be a mne stied.

Th e eigh th clas s co ns ists of thos e go ve rn m en tal le ad er s resp on sib le fo r th e war. 

As Norman Co usins has ob served above, they too could benefit from an am ne sty.

Th e final clas s co ns ists of all Am erican s. We, as a society , wo uld benefit fro m 

am ne sty fo r th e reas on s to be cited in th e follo wing ch ap te r.

ET H IC S AN D A M N ESTY

Amnty is no t something owed in ju stic e. It is simply an act of ge ne rosit y. 

Crit icism ab ou nd s toda y th a t th is co un try is an im pe rson al mac hi ne pu rs ui ng 

na tion al in te re st s an d ob jectives w itho ut re ga rd fo r eit her its ow n citiz en s or 

the peo ple of ot he r co un tries. Am nesty wo uld be an op por tu ni ty fo r ou r na tio n 

to respon d to th is cr iti cism by ac ting ou t of hu man e an d selfl es s princip le. It 

wo uld de m on st ra te th a t Am erica is st ill ca pa ble of a co mm un al mor al ac t. It 

would sign al th a t th e co un try st ill has som e confiden ce an d se lf-a ss ur an ce aft er 

th is long an d b it te r confl ict an d does no t fee l obliged to vi nd ictiv ely pros ec ute 

th e in ci de nt al ly cr im in al be ha vior of it s own po lit ical di ss en te rs . Sha ke sp ea re ’s 

ju dg m en t shou ld be th ou gh tful ly co nsidered to day : “th e qual ity of mercy is no t 

st ra in ed . . . it becomes th e th ro ne d mon arch bet te r th an his c ro wn.” 44

But. pr ac tica lly spea king , would no t am ne sty lie pr om otin g di sr es pec t fo r law? 

Would we no t be pr om oting arb it ra ry go ve rnmen t, ra th e r th an go ve rnmen t based 

on law ? Wo uld we not be en co ur ag in g de se rtio n? Sh ou ld peop le no t be pu nish ed 

fo r th eir crim es? Must we no t obey all law s, an d no t only th e ones th a t seem 

good to us ? Should people no t se rv e th eir c ou nt ry wh en ca lled ? And w hat ab ou t 

“Ren de r un to Cae sa r w hat is C ae sa r’s? ” Fi na lly, wo uld no t am ne sty crip ple th e 

co nd uct of an y fu tu re w ar ?

The re are seve ral respon ses to thes e qu estio ns. F ir st , we 've h ad am ne sty be fore 

an d su rv iv ed qu ite well. In fact, th e st ro nge st am ne sty was gr an te d at th e tim e 

of ou r gre at es t na tion al turm oi l, the Civil War. Re spec t fo r law ha s no t bee n 

weakened by am ne sty. Tt shou ld be remem be red that, am ne sty th e la w ! As 

fo rm er A tto rn ey G en eral Ra msey Clark has sa id : “It 's no t a m att er of w he th er 

we are go ing to liv e un de r th e ru le of law . I t’s a m att er of how we ex er ci se the 

ru le of law . . . . Of course, th e law has to ha ve in te gr ity. Amne sty is in te grity . 

Am nesty is th e la w .” 4

' Jo se ph L. Sax, Pro fe ss or of La w at th e U ni ve rs ity of 

Mich iga n co mm en ts:

“A mne sty ra is es an ew th e ag on izin g prob lem of a so ciety's resp on sibi lity to 

ass ure th at th e law is en forced. Of ten st at ed is th e qu es tio n w het her we can 

aff ord no t to en force all th e law all th e tim e, th e pr oper —a nd mu ch mo re difficu lt—qu es tion is wh en to re fr ain fro m en fo rc in g th e law . For it is a pla ti tu de 

am on g la w ye rs th at if ev ery law were rig orou sly en forced th er e wo uld be at 

le as t as ma ny people inside th e ja il s as ou tsid e them . To ta ke only th e mo st 

ob vio us of ex am ples, full en fo rc em en t of th e com mo n pr oh ib iti on on th e use of 

pr of an e lang ua ge in pu blic wo uld alm os t da ily cl ea r th e st re ets of peo ple an d 

sw eep them into o ur priso ns .” 48

I believe, to us e a rece nt ex am ple, th at by not st ra in in g th e qual ity of mercy , 

th e en ds of ju st ic e we re wi sely served in th e ta x ca se of fo rm er Vice Pre si den t 

Sp iro T. Agnew . It re m ains fo r th e A dm in istrat io n to ex tend th e same log ic to 

th e qu es tio n of am ne sty. Th e reas on s alleged fo r lenien cy see m mu ch th e same in 

bo th ca se s: mag ni tu de of the pe na lty of loss of h igh office (r ea d "c ou nt ry '' in th e 

case of th e w ar ex iles ), pe rm an en t sc ar s on th e nat io n if pr os ec ution co ntinue d, 

co mpa ssion ns mo re in the pu blic in te re st , etc. Mr. Agnew us ed to sjt ea k of th e 

do ub le st andard of th e nat io nal me dia. A fter th e A dm in is tr at io n’s len ien cy to 

Mr. Ag new , an am ne sty fo r the w ar ex ile s might he lp to de m on st ra te th a t th e 

A dm in is tr at io n itse lf doe s no t ha ve a do ub le st andard of ju st ic e. 47

Secondl y, disobedie nce to law is no t alway s bad. it is often us eful. Te n yea rs 

ago si t-in s again st ra ci al di sc rim in at io n we re illeg al. To da y they are rec og ­

niz ed as ha vi ng prom oted lon g-n eeded le gi slat iv e refo rm s. Lo ng -te rm ga ins ma y 

th er ef ore ou tw eig h w ha te ve r di sr es pe ct fo r law m ig ht occur as a re su lt of civil 

dis ob edien ce. Law. it sh ou ld be rem em be red, is no t th e ult im ate good, but only 

th e im pe rfec t se rv ant of ma n. Am ne sty cou ld be an ex pr es sion by th e go ve rnmen t of th e te m po ra ry pr ed om inan ce of one socia l va lue (r ec on ci liat io n) ov er

44 T h e M er ch an t of Venice. Act IV. Scene 1.

*'• P ub lic B ro ad ca st in g Se rvice pr og ra m “Th e Ad vo ca tes.” te le ca st o f Feb. 22. 197 3. 4,1 Ken ne dy ffen riny x. p. 2S9.

47 L et te r of th e au th or pu blish ed in Th e New Yor k Time x, O ct. 16 ,1 97 3.
323

anoth er socia l va lue (r ule of la w ). It wo uld he a re co gn iti on th a t so metim es an d 

in som e si tu ati ons it is healt hie r fo r a socie ty to overlook off ens es th an to risk 

a co nt in ua tion of bitte rn es s fr om w ith in .

Third ly , pu nish m en t, if it is ap plied, sh ou ld se rv e as a co rrec tive an d a det erre nt . But w hat is th ere to co rr ec t in th e w ar re si st er s? Do we w an t to br ea k 

th es e men of th eir co ns cien tio us pr in cipl es which in ma ny ca ses in sp ired th eir 

ac tion s? In th e m att er of de terren ce , w hat op po rtun ity will th er e he fo r them 

to br ea k an y w ar -r el at ed laws ag ain, now th a t th e w ar is ov er? As to w ha t 

pr ison ha s done fo r w ar re si st er s. Dr . W illa rd Gay lin , Pre si de nt of th e In st it u te 

of Socie ty, Ethics, an d th e Life Sciences , an d Pro fe ss or of La w an d Psy ch ia try 

a t Colum bia Uni ve rs ity , ob se rv es : "T he me n I met in pr ison ha ve pa id a price 

in los s of yo uth, los s of sel f-conf idence , in los s of idea ls. All could ha ve been 

cla ssified as be ing co mm itt ed to th e pr in cipl es of non-v iolence an d pa ss ive re si st ­

an ce wh en they en te re d. By th e tim e th ey were disc ha rg ed , none of them 

acce pted th es e pr in ci pl es .” 48 M ore over, hav en ’t t he r esi st er s been p un ishe d eno ugh 

alr ea dy? Th e te rr o rs of un de rg ro un d lif e an d th e bitte rn es s of ex ile could well 

be rec ko ne d sufficie nt pu ni sh m en t, if inde ed pu ni sh m en t is w ha t is soug ht.

To thos e wh o arg ue th a t one shou ld ac ce pt th e pe na lty of th e law as witn es s 

of th eir co ns cien tio us di ss en t an d in her en t re sp ec t fo r th e co ncept of law th er e 

is th e ea rlie r-m en tion ed dif ficulty to be face d of th is ac tion being misun de rstood 

as an ad mission of err o r on th eir p art . Th e of t-cited pr ec ed en t of Gh an di. 

Th or ea u, an d M ar tin L uth er King, Jr ., is no t compe lling he re. Times an d si tu atio ns change, an d w ith them th e way in wh ich pr in cipl e is im plem en ted may 

ch an ge . It is no t inco nc eiva ble th a t in th e 70’s th es e fig ures from his to ry might 

ha ve join ed D an B er ri ga n as a “fug itiv e from in ju st ic e. ” At le as t I do ub t th at 

they wo uld ha ve co un selle d ac ce pt an ce of pun is hm en t in th e Viet na m er a as the 

only mor ally ac ce pt ab le or po lit ic ally effecti ve mea ns of pr ot es t. Sis te r Jo se ph ine 

Di sser. C.S.C., has ob se rv ed : "T he d ra ft ev ad er s an d des er te rs co nt ribu te d a 

sign ifi ca nt symb oli c serv ice to th eir po litica l co mmun ity by th eir pu blic exile. 

Th e alt ern ati ve of go ing to pr ison wo uld no t so mu ch ha ve co ns titu te d a sym bol, 

it wo uld ha ve been—an d was—sim ply th e ult im ate in de hu m an iz at io n.” 49

Fou rthl y, we ar e. of co urse, bo un d to se rv e our co un try. B ut th e qu es tio n is : 

w hat /« service of one’s co un try? Did thos e wh o blin dly fol low ed or de rs in 

H itle r's German y re al ly serv e th eir c oun try? A m aj ori ty of the pe ople in Germa ny 

su pp or ted H itle r, bu t it is in te re st in g to no te th a t his regime pr od uc ed a fligh t 

of exil es, ma ny of w hom were ackn ow led ge d by th e r est of th e world a s G er m an y’s 

be st people.

At My La i, a m as sa cr e of civi lian s oc cu rred under th e ex cu se of “fo llo wing 

or der s.” Only one m an was co nv ict ed in co nn ec tio n with th a t ev en t. His se nten ce 

ha s al re ad y been redu ce d an d th e P re si den t has prom ise d to review even th a t 

redu ce d senten ce . It is shoc king to re ad ab ou t a na tion wid e su rv ey do ne by 

re se ar ch er s a t H arv ard U ni ve rs ity wh ich re p o rt s: “h alf th e people qu estio ne d 

sa id they them se lv es would fol low or de rs an d shoo t civi lian s . . . tw o-thirds of 

th e re sp on de nt s sa id th ey th ough t mo st American s would fol low ord er s an d 

sh oo t.” 50 I th in k it is becomi ng cle are r to American s, espe cially in more re ce nt 

da ys , th a t th e Gov ernm en t is no t al w ay s righ t. Th e Su prem e C ourt’s decis ion 

on ab or tion ha s in di ca te d this* f or some, an d th e W at erg at e sc an da l has in di ca ted 

it fo r ma ny othe rs . Fr om P ete r’s resp on se to th e San he dr in ( “W e m us t obey 

God ra th er th an men ” ) to Tho mas More's resp on se to King H en ry V II I (“I am 

th e king ’s good se rv an t, but God 's good se rv ant fi rs t” ), th e go ve rnmen t has ne ve r 

bee n vie we d by in di vi du al s of pr in ci pl e as th e final arb it er of m or al co nc erns.

Fif th ly . I wo uld qu ote fro m a le tt er to a d ra ft bo ar d w ri tt en by th e fa th er 

of a st uden t th a t I onc e coun seled ab ou t ap pl ic at io n fo r co ns cien tio us ob jector 

s ta tu s :

“I t is of ten qu oted . ‘Rend er unt o C ae sa r th a t wh ich is C ae sa r’s.’ R ig ht now 

w ha t ‘C ae sa r’ ne ed s mo st is resp on sible yo un g men an d women who are willing 

to ‘fight’ fo r peace . Not by killi ng with gu ns an d mac hine s but by re or ie nt in g ou r 

tec hn olog y an d hu m an reso ur ce s to im prov e our und er st an din g an d re la tionsh ip s 

an d by us in g th os e ta le nts wh ich God has giv en us fo r pe ac eful pu rp os es .”

48 Eug en e C. W indc hy , “W hen Can I Com e Home, A Deb at e,” Satu rd ay Rev iew, 22 Ap ril 

1072. p. 74.

4" L etter of Sr. Jo se ph in e Diss er. C.S.C .. to th e au th or, da te d Ja n. 10. 1974.

50 Rep orted in “ Am ne sty for Th ose Wh o Sa id. ‘No’—As a Sign of N at io na l R ep en ta nc e" 

hy D. J. R. B ru ck ne r, circ ul at ed by th e Am erica n Ci vil Lib er ties Un ion .
324

Pre sident John F. Kennedy put this same thought in oth er words when he 

said: “War will exist until the distan t day when the Conscientious Objector 

enjoys the same reputation and prestige as the warrio r does today.” 61 In the meantime, in regard to f utu re wars, Dr. Willard Gaylin has offered the following 

observatio ns:

“What, then, of the concept of example—the general deterrence principle? If 

these men a re forgiven will it not make it easier for other young inen, in future 

wars, to avoid service? The entire crime prevention system in this country rests 

heavily on this concept—but then our crime prevention system has been a 

notorious failure. Deterrence, however, requires a sense of immediacy, involvement, and identity. It is unlikely to have any effect with war resisters where 

the punished example and the potential criminal are separated by years, let 

alone generations. The war will be different, the society will be different, the 

men will be different. And meaningful memory will not las t th at long. Do the 

young people today really know what liapi>ened in 1942 or 1917 or 1863, or if 

they did know, could they possible rela te to it? ” 62

The response of Professor Joseph Sax to this concern about the effect of 

amnesty on fu ture wa rs is equally tellin g:

“One of the most inte resting aspects of the amnesty tradition is the light it 

casts on the question what effect would forgiveness have as a precedent for 

military recru itment in the future ? For several reasons, I thin k it is plain that 

it would have no precedential meaning for the futu re. Our history makes clear 

that the amnesty question has been dealt with during and after each American 

war in a quite distinctive way, responsive to the particular situ atio n of the 

time. Even if one were a close stud ent of history—as few persons likely to be 

affected by an amnesty are—he would be hard put to govern his conduct on the 

basis of any specific expectations as to what the government would do in the 

next war. The only expectation one might reasonably have, a t least based on past 

experience, is that some form of amnesty would be likely in relation to the 

Vietnam War, as it has been with other wars. In short, amnesties are always 

quite special events, without significant precedential value, widely sepa rated in 

time and circumstance. Moreover, it is well known among legal experts that the 

ability of the law to govern futur e conduct varies widely according to the kind 

of conduct sought to be affected. It is easiest to affect carefully planned business 

conduct by tax statute s, and most difficult to affect conduct guided by passion 

or conscience. Plainly an amnesty speaks essentially to the latte r categories.” “

The question of fairness needs now to be considered. Since not all draft evaders 

and dese rters were such because of conscience, should not an amnesty board be 

set up to review each case on its own merits? I have counseled scores of young 

men on the question of conscientious objection. Tn this process T have come to 

know the extreme difficulty and complexity of decision-making in this question. 

I thin k in this connection, also, of the story of the final judgm ent in Matthew 

25 where not only the bad. but also the good, have to ask “Lord, when did we 

see you hungry and feed you?” People are not always in touch with the ir motivations. God alone knows what finally determines the actions of men. and how any 

board could be structured so tha t it would be capable of sitting in judgment on 

some 70.000 or more objecting consciences with any degree of equity, T do not 

know. Such a board did, indeed, atte mpt to function under President Truman, 

but besides suffering from the above-described drawbacks it was antithetical 

to the very idea of amnesty which does not atte mpt to assess guilt or innocence 

on a case by case basis but instead overlooks judgm ent and is interested only 

in reconciliating a whole class of war resisters. The judgm ent rendered on the 

amnesty board idea by Douglas Jones and David Raish in their exhaustive study 

on amnesty in the Harva rd Internatio nal Law Journal is as follows:

“Clearly the creation of a pardon board similar to Presiden t T rum an’s Amnesty 

Board would pose the greatest number of adm inistrative difficulties. For whereas 

the Truman Board was dealing with 15,805 known persons within the United 

States who had all been convicted and about whom much data became available, 

today there are few records of the numbers, identity, and whereabouts of these 

exiles. Finding a way to make the exiles known to th e pardon board, to compile a 

complete dossier on each individual, and to allow the exiles to submit to the

Kt

82

 Ouoted In tes tim ony of Bish op Be rnard Flan agan in Kennedy Hea ring s, p. 279. Ken ne dy He ar ings. p. 29S. M Kenn edy Hearings, p. 291.
325

‘•jurisdiction" of the pardon hoard with out simultaneou sly subm itting themselves 

to prosecution for the ir offense would involve an extrem ely complicated process. 

In addition, the lack of well-defined sta nd ard s and the limited amo unt of time 

given each case unde r the Truman Board suggest that the outcome in certain 

cases must have been highly arbit rar y. Although clearer standard s might be 

provided for a board oper ating today, the larg er number of dr af t evaders makes 

it unlikely th at such a board, regardles s of the machine ry made available to it, 

could have the time to reach a well-considered resu lt in individual cases.” 64

Henry Schwarzschild, Director of th e P roje ct on Amnesty of the Americ an Civil 

Liberties Union F oundation, has expressed s imilar rese rvations about an amnes ty 

bo ard:

"I know a good many (peo ple) who would very emph atically ass ert th at the 

sta ndard s applie d by the Truman amnes ty board w ere inherently and in practice 

profoundly invidious and discr imin atory on groun ds of clas s an d race and, indeed, 

religious affiliation. Among the men who were excluded from consid eration for 

executiv e clemency in the proceedings of the T rum an amnesty board, for example, 

were all the Jeho vah ’s Witnesses who had refuse d to par ticipate in th at war, 

whom, by any reasonable standa rd, I believe, none of us would deem crimi nals 

not worthy of pardons . A good many of the othe rs who were not pardoned by 

Pre sident Tru man upon the recommendation of the amnes ty board were men 

who could not to the satisfac tion of th at trib una l pres ent an articu lated philosophy of the world, of war, of killing, of justi ce, of politic al theory.

“It seems to us th at any attem pt to asses s the subjec tive motivation s—the 

moral, politica l, ideological, religiou s motives—which prompted men at th at time 

and again in our day to dissociate themselves from a nationa l und erta king so 

grevious as a war would inevitably again lead to discriminatio n in the case of 

the war res iste rs of the Vietnam era. We believe th at an amnesty which, after 

all, is something which undoes, which poten tially can undo, the injus tices reached 

by the law itself , ought not to become ano ther instrume nta lity of d iscrimination 

as indeed the dr af t and tiie war in very sub stantial measure already have been 

for this country.” 88

Also involved in the ma tte r of fair ness is the question of alt ern ative service. 

Should not the wa r resistors to be amnestied be required to do some form of 

alte rna tive service? The fac t is th at alt ern ative service is basically a form of 

punishment. Puni shment implies judgment and guilt and these implication s are, 

again, essentially antith etical to the concept of amnesty. An additional practic al 

point is th at any signific ant social work would not be very effectively accomplished by a system of forced labor such as alt ern ative service.

“If our hosp itals need staffing, our strip-m ined hills need restorat ion, or our 

inne r citie s community planning, these urg ent human and social needs can 

hard ly he met by a labor corps of conscripted and ther efore unwilling men. 

And the agencies of government have not shown themselve s especially skilled 

at channeling large numbers of people into tasks of social recon struction— 

bureaucracy is simply not the prope r sett ing for such work, as the problems of 

the Peace Corps or VISTA plainly teach us.” “

A difficulty with alte rna tive service th at has not been sufficiently considered 

is th at any attem pt to impose it might well be unco nstitutional. Section One of 

the Thirtee nth Amendment to the Cons tituti on st at es : “Neit her slave ry nor involun tary servi tude, except as a punishmen t for crime whereof the par ty shall 

have been duly convicted, shall exis t with in the United State s, or any place subjec t to the ir juri sdic tion .” 87

Still ano ther fair nes s consideration is th at voiced by Sena tor Jame s L. Buckley 

of New Yo rk: “We cannot forget th at for each deser ter, for each dr af t evader, 

ano the r young American had to be conscripted and exposed to the risk s of 

combat.” 88 This seems to me a most peculiar argum ent, for the choice of eith er 

serving or not serving is placed before each person th at is called. If not only the 

first person objects to the conscription, but also the second, third and so on,

M Quoted In Kennedy Hearings, p. 474.

“ Public Service Broadcasting Service program “The Advocates,” op. cit. Statement of Henry Schwarzschild in Kennedy Hearings, p. 304.

w U.S. Constitution, Amendment XII I, Section 1.

88 Senator James L. Buckley’s Newsletter, Vol. 3, No. 3, M arch-April 1973.
326

they all do no disservice to a lat er one, who, hy chance, may see his duty as 

serving in the war.

Even tho amnesty might not he unfair to those who served and survived, 

would it not dishonor those who have died in Vietnam? First, I do not believe 

there is an essential difference between these two groups. Secondly, Congresswoman Bella Ahzug provides an analogy for this problem when she says : ‘•When 

our court system sentences a man to death and later strikes down the law under 

which he was condemned, reversal of the original sentence is ordered, tha t is, 

the courts do not insist th at the offender be executed for the sake of consistency 

or of honoring those who were wrongfully put to death before him.’’ M The mother 

of a soldier killed in Vietnam, Mrs. Louise Ransom, has given her own personal 

testimony: “Everybody says it dishonors the dead to give amnesty. A lot of 

people cann ot presume to speak for the dead. But I presume to speak for them, 

and I believe it will dishonor the dead if we discredit those other victims of the 

Vietnam War. We have not advanced t he cause of freedom one hit unless we learn 

mercy without punishment.” 00 Mrs. Ransom referred to the exiles as the “other 

victims of the Vietnam War.” Senator Edward M. Kennedy lias voiced the same 

view when he observed: “When we view the results of this war, we find no 

beneficiaries, we find only victims.” 81

A final question concerns whether amnesty would be fair to those who were 

legally penalized for their beliefs. Many men did go to prison or performed 

alte rna tive service rather than fight in the war. The question of equity toward 

these men arises in regard to the evaders. Leaving aside the fact that many men 

“legally” dodged the draft without penalty through deferments and other loopholes. the key difference on this point is that the government should rightly he 

expected to enforce conscription, demand alternativ e service and sentence violators to prison only as part of a national defense program during wartime. Aside 

from the fact that wa r was never formally declared in Vietnam, all hostilities 

involving Americans have ended, and to continue to demand service or impose 

punishment would seem more in the nature of vindictiveness than in the interests 

of national defense. Additionally, those men who chose prison might even be 

considered to have chosen a less difficult s ituation in the sense that they could 

look forw ard to release and complete freedom after a certain fixed period of 

time, whereas those who chose exile had to steel themselves for possible permanent sepa ration from their country, and those who went underground had to live 

with constant fe ar of discovery an d imprisonment.

In conclusion, I believe that the question of who was right and who was wrong 

concerning the Vietnam War should be left aside in discussing amnesty. Any 

atte mpt to introduce such a question would shift the discussion from one about 

amnesty to one about eith er exoneration or pardon, depending upon what moral 

judgment is offered concerning the war. I question whether any individual or 

group has sufficient inform ation at this point in history to definitely decide this 

question for anyone other than themselves.

In any event, I do not think an “owed” amnesty for Vietnam should be added 

to the li st of already sufficient examples in American histo ry which illu strate the 

error of attempting to supp ort political decisions with essentially moral 

judgments.

I believe an immediate universal and unconditional amnesty should be granted, 

but th at its motivation should be neither commendation nor condemnation for the 

war resiste rs or the war makers. Rather, let the basis for it be th at, as the U.S. 

Supreme Court has said in 1915, “forgiveness is deemed more expedient for the 

public w elfare than prosecution and punishment.” 82

STRATEGY AND AM NESTY

Perhaps for some time to come the most imp ortant element of action for 

amnesty will be education. The executive branch of government does not presently seem disposed toward the granting of an amnesty and the Congress appears 

quite read y to w ait until popular supp ort can be developed for this matter before 

it takes any action. Therefore, the crucial work to be done lies in sensitizing the 

American public to the dimensions of the problem. Most probably it is only when 

the public is ready for an amnesty th at government represen tatives will gra nt

59 Dr. Jo hn M. Swomly, “Amnesty and Recon cili atio n,” Ch ristian Centu ry, 7 December 

1972. p. 1323.

The. B ost on Globe, F eb ruary 11, 1973.

81 K enn edy Hea ring s, p. 177.

81 Bu rdick vs. U.S. 236 79, 94- 95 (1915).
327

one. More importantly, it is only then tha t this action will achieve the actual 

reconciliation which it is intended to bring about. The war exiles a re not hopeful 

about a legal amnesty unless it is accompanied by the acceptance of them, on the 

pa rt of the public, as people who are now entitled to take their place in society 

on an equal footing with everybody else.

Where time pe rmits, the most effective exploration of the amnesty question in 

a group setting should be done over the period of several sessions. A “package 

plan” of this sort might be organized as follow s:

1. Raising the question—The jieople in the group should determ ine what facts 

about amnesty they need to know. Once the basic facts are clear, they should 

determine the issues th at they need to discuss to reach a consensus on amnesty. 

As a final step in this session, each jjerson should write down the best reason 

they can think of why an amnesty should be granted, and the best reason they can think of why an amnesty should not he granted. This technique has the 

advantage of assuring tha t people thin k seriously almut both sides of the question, 

no mutter what side they may happen to favor themselves. Litera ture should 

be available at the close of this session so th at people may inform themselves 

more fully on particular aspects of amnesty. Some popular sources of lite rature 

on amnesty are: American Civil Liberties Union Foundation Project on Amnesty, 

22 E. 40th Street, New York. NY 10016; National Interreligious Service Board 

for Conscientious Objectors, 550 Washington Bldg., New York Ave. and 15th St., 

N.W., Washington. D.C. 20005; Clergy and Laity Concerned, Literatu re Services, 

235 E. 40th Stree t, New York, NY 10017.

2. Informational input and discussion—A star ter for this session could be a 

film such as "Amnesty or Exile ,” a 35 minute black and white documentary 

containing excerpts of interviews with dr aft and military exiles, military personnel in the U.S., representatives of the Pentagon, and selections from the Kennedy Senate Subcommittee hearings on amnesty. The film concludes witli a proamnesty viewpoint, but presents both sides of the question. It may be rented for 

$25 from the Broadcasting and Film Commission. National Council of Churches, 

475 Riverside Drive, Room 860, New York, NY 10027.

Another film which might be used is “Duty Bound.” This is a 60 minute color 

courtroom drama. A stron g case for both sides is made during the tria l of a 

war resister. The jury is the viewing audience. This film may also be rented from 

the Broadcasting and Film Commission of the National Council of Churches. 

The rental is $25. A d ram atic reading might he presented in lieu of a film. The 

script from “The Advocates” program on amnesty might be used for this purpose. 

It is available from “The Advocates,” WGBII Educational Foundation, 125 

Western Avenue, Boston, Mass. 02134, at a cost of $2. Another possibility is the 

transc rip t from the “Firing Line” program featuring Wm. F. Buckley, Jr. and 

Henry Schwarzschild of the ACLU. It is available for 25(f from Firing Line, P.O. 

Box 5966, Columbia, S.C. 29250. Still another possibility for sta rting discussion is 

to begin the session with a tape. A 20 minute cassette entitled "Am nesty: Is it 

a Good Idea?” is available at a purchase price of $3 from the Office of Selective 

Service Information, Lutheran Council in the U.S.A., 315 Pa rk Avenue South, 

New York, NY 10010.

Afte r discussion has sufficiently clarified the problem, the group should atte mpt 

to work out a concensus position. It would be helpful for the group to draft a 

written statement that specifies its position so that those of its membership, or 

others who wish to do so, might subscribe to it.

3. Action for amnesty—Once the group has arrived at a position favorable 

to some form of amnesty it should spend some time considering how it might 

best be influential in promoting amnesty. This is often best done by having the 

participants in the group “brainstorm ” various possibilities. A secretary could 

write the resu lts on newsprint positioned where the group can keep tabs on them. 

Suggestions arising from such “brainsto rming” will vary depending on the charact er of the group, but sample possibilities might be: circulate amnesty petitions 

for forw arding to the President and Congress; write one’s own Congressperson 

and Sen ators; form a Speakers’ bureau composed of parents of men killed in 

Vietnam who favor amnesty, iwirents of draft evaders and deserters, veterans of 

Vietnam who favor amnesty, parents of d raft evaders and deserters, vete rans of 

the Vietnam era now opposed to the w ar ; plan i>rograms on amnesty in service 

clubs and other civic org anization s; organize panels composed of represen tatives 

of the military, religious leaders, politicians, and conscientious objectors or for ­

mer exiles or de serte rs; suggest a sermon on the question of amnesty in churches 

any synagogues; arrang e placement of literatu re table s on amnesty wherever
328

possible; write letters to editors; ask for more radio and television discussion 

of the issue by networks and local s tatio ns ; raise th e question of amnesty on callin radio and T.V. prog rams; in conversation, ask people how they feel about 

amnesty in the light of histo rical precedent, religious group statements, etc. It 

should be emphasized that these are only sample possibilities. The imagination 

and creativity of individuals and groups will hopefully produce others. The important thing is not how education is done, but that it is done.

Mr. Smith. Th an k you, Rev eren d Ba rger. I th in k th at is a very 

int ere sting point th at you hav e made. An d it is one th at perha ps as 

we go down the road with the amn esty maybe even a more im po rta nt 

one. and th at is th at amn esty does not mean exo neratio n.

There h as been some testim ony tod ay t hat you pro bably heard t ha t 

objected to amn esty on the gro unds th at it amounted to say ing the 

U.S . Governme nt was wrong and thes e peop le th at ha d a matter of 

conscience were rig ht. You are bringing out the fact th at amnesty 

does not mean th at , and th at maybe a very im po rta nt point in any 

future legisla tion that, might come. An d we m igh t even in such legislation say th at explicitly, in order to make it c lear to everybody. Bu t 

it is a very helpf ul point.

Th an k you.

Reveren d Barger. You are welcome. I ju st want to under line th at 

amnesty would be ne ith er com men dation or con dem nation by either 

the Governm ent or t he organ izations.

Mr. Smith. As was poi nted out before, som eth ing in the na ture of 

rec onc iliation w ith out judgme nts bein g made.

Reverend B arger. Yes, sir.

Mr. S mith. Than k you.

Mr. K astexmeier. Th e subcomm ittee appre cia tes your statem ent 

very much and accepts it in the na ture of a ben edictio n on our firs t of 

3 day s of he ari ng on the sub ject of amnesty. You hav e also wr itten 

on th is subject, and we look forw ard to rea ding th e piece th at you 

hav e alr ead y dis tributed .

Rev eren d Barger. M igh t I claim a po int of person al privile ge, M r. 

Ch air ma n, on behalf of the witnesses who have been here all day , and 

I am sure the rem ain ing witnesses in th an ki ng you as chairma n and 

th e dis tinguish ed members of your comm ittee, both th e majo rity and 

the mi nority, fo r holding these hearings and for helpi ng us all to 

realize more wh at is at stake.

Mr. Smith. Mr. Ch airma n. I would like to say— and pe rhaps we 

ought to say fo r the record—th at Reveren d Ba rg er has sup plied each 

one of us with his book, “A mne sty, W ha t Does I t Really Mea n.” 

An d we than k you fo r this.

Rev erend Barger. We are dou bly app reciative.

Mr. Kastexmeier. Th is concludes the first day of hearings on the 

question o f amnesty. Th e hearin gs will resume in this room on M onday 

mo rning at 10 a.m. Unt il th at tim e we sta nd adjou rne d.

[W her eup on, at 5:18 p.m., the com mittee adjou rned, to reconvene 

at 10 a.m., Monday, Ma rch 11, 1974.]

[The sta tem ent referre d to at p. 52 follo ws :]

Statement ox Amnesty (October 1973)

We ask again that the public and the government face the fact that for all 

th at h as happened in our Vietnamese war, only men who ar e young have been or
329

are being pu nis hed; and th at in disp ropo rtion ate numbe rs these men are nonwhite and from low economic estate.

We are speaking of those men who are or were imprisoned for refu sing induction ; of those who exp atriated themselves before or after induction or who have 

lived under gro und; and of those given “less-th an-hon orahle” or other discr iminat ory discharges from the military.

We believe th at justi ce—jus tice th at is symm etrica l in its equal treatm ent 

of all citizen s—requires an uncond itional amnesty, pardon, or fa ir res titu tion 

for all men who are charge d with, may he charg ed with, or have been convicted 

for offenses ari sin g out of the ir refu sal to partic ipa te in the military actio n in 

Sou theast Asia, or for offenses again st mil itary law while doing so.

A country which has found only a lieute nan t guilty for My Lai, has found 

no one legally culpable for the massive deception revealed in the Pentag on 

Pap ers and in the disclosures of later lawlessness and deceit in the wa r’s conduct, has seen its honor sacked by W aterga te and sim ilar affair s—such a c ountry 

so long as it may belong to a ju st people cann ot now impose its pena lties only 

on these young and powerless men. Th at cann ot be fair, cann ot be in keeping 

with our best ideals.

Our war, we tru st, is over. The natio n now has much to do, much th at it can 

do only as a unite d people. Ther e is too little mutual trus t among us, too much 

th at is corrosive of hopes and spirits .

A general and unconditional amnes ty would be a simple and clea r act. It would 

be a sign th at we wan t to live at i»eace with each other, th at we wan t to end 

with in ourselves the awful divisio n caused by the war, th at we wa nt to get on 

with the work of makin g th is a b ette r land.

Who can be opposed to such an ac t? Can the dead speak, and advise us; or 

can any si>eak for them? Would we rea lly wa nt to tur n to pa rents of the dead and 

set them speaking aga inst each other, some urgin g amnes ty and some opposed?

Are vete rans (incl uding form er priso ners of w ar ) opposed? They app ear divided, many for, many against, many indiffe rent. Although inte rest and weigh t 

do atta ch to the views of the vete rans o f this wa r who were themselve s enlisted 

men, even they, in the tra dit ion of our civil society, have now to advance those 

views a s citizens, and not as a dist inct group.

Can Congressmen and members of the adm inis tration, both pres ent and former 

ones, who put us into the war and who kept us in i t so long, have i t in their hear ts 

to absolve themselves while they hu rt these young men?

Can those Congressmen who opposed th e war, in the way the public empowered 

them to do, want to hu rt those powerless men who opposed the war in the only 

ways they could or knew how, men who in the process helped create and sus tain 

th at public d isgu st with the war which finally gave some success to Congressional 

effort to end it?

We believe th at Congress and the Pre side nt are, in fact, fully free to act for 

amnesty, and that they cann ot righ tful ly claim to be held back by c onstituen ts' 

press ures. We believe a mnesty, a s was segreg ation in the South, is an issue wherein state smen would not trade on fea rs but can, and therefor e should, lead. We 

believe th at the people will respond helpfully to for thr igh t leadership, as did 

people in the South when segrega tion was outlawed.

We believe that if Congress or the Pre side nt will give the American people 

the oppo rtuni ty to be generous and jus t, the nation will be so. We ask for th at 

oppo rtunity .

Does this nation, that was estab lished to “form a more perfect union'* a nd to 

“insure domestic tra nquility,” not wan t to heal its elf ? Do we not want to take 

this c hance on justic e?

There are few acts a government can decide upon tha t clearly and immediately 

benefit ind ivi du als ; amnesty would be one. We thin k it would be even more. We 

would be saying to ourselves that we now put the Vietnam war behind us. with 

its terr ible frei ght of bitterne ss and recrimin ation , and of corruptio n and brutality too. We would signal a decisive tur nin g away from the dark ness of the 

wa r years, and towa rd rebuil ding and restori ng and healing, both here and. as 

we are morally bound to do, in Indo-China. We also would be affirming to ourselves th at America has no time or need for vengeance aga inst ourselves, and 

especially not aga inst our youth. We would, instead, be welcoming the return , as 

free members of a freer society, of young men who can give much to the fut ure — 

the irs and ours and our coun try’s.

31-658—74----- 23
330

Ro ge r Ba ldwin, fo un de r an d fo rm er Dire ctor , American Civil Lib er ties T’nion. 

Rev. Eu ge ne (’ar so n Blake, re tire d Gen eral Sec re ta ry , World Council of 

Ch urch es.

Ra bbi Ir w in M. Bl an k. T em ple Oh abei Shalo m, B rook lin e, Mass.

Rev. Rob ert McAfee Brow n, Pro fe ss or of Re lig ious Stud ies, Sta nf or d 

Unive rsity .

Hey wood Burns , Dire ctor . Nationa l Co nferen ce o f B lac k Law ye rs.

Rev. Will D. Campbell, Dire ctor. Com mittee of So ut he rn Ch urch men .

Rev. W. Ste rlin g Ca ry, Pre si de nt , N at io na l Co uncil of Chu rc he s of C hri st in 

th e U.S.A.

Ken ne th B. Cl ark. Pro fe ss or of Socia l Psycholog y, Ci ty U ni ve rs ity of New 

York ; Pre si de nt . Metropo lit an A pplied Resea rch Ce nter.

Rev. W ill iam Sloane Coffin J r. , Cha plain, Y ale U ni ve rs ity .

Jo hn It. Colem an. Pre side nt . Il av er fo rd College.

Rob er t Coles, ps ych ia tris t, H arv ard Uni ve rs ity ; a ut ho r.

Dorothy Day. Edi to r an d pu blishe r, Tli c Ca tho lic Wor ke r.

P atr ic ia M. Derian, Dem oc ratic Nationa l Com mittee wom an fro m Miss issipp i. 

Le sli e Dun ba r, Exe cu tiv e Dire ctor , Th e Fi el d Fo un da tio n.

Verno n A. E ag le, Ex ec utiv e Dire ctor , Th e N ew W orld F ou nd atio n.

Ra bb i M au rice N. Eisem lrat h, Pre si de nt , T’nion of American He brew 

Con greg ati on s.

E ri c II. Er ikso n, ps yc ho an al ys t an d au th or .

W. II. Fer ry , Ex ec utive Dire ctor, D.J.B . Fo un da tio n.

La wre nc e J. Fr iedm an , Pre si de nt , U.S. N at io na l Stu de nt As sociati on .

W ill ar d Gaylin , Pro fe ss or of Psy ch ia try an d La w, Co lumbia U niv er si ty ; 

au th or .

E rn es t Gruen ing. f or m er U.S. Sen at or fr om Alas ka.

Mi chael H ar ri ngto n, Cha irm an , Dem oc ratic So cialist Org an izin g Com m itt ee ; 

au th or .

Rev. Th eo do re M. Hesbu rgh, C.S.C., Pre si de nt , U ni ve rs ity o f N otre Dame.

M. Ca rl Ho lm an.

Dav id R. H un te r.

Rev. Ja m es M. La ws on , Jr ., Pas to r, Cen tena ry M et ho dist Chu rch, Memphis, 

Tenn.

Jo hn Le wis, Ex ec utiv e D irec to r. Voter Edu ca tion Pro je ct , A tlan ta , Ge org ia. 

Rob er t J a y Li fto n, Pro fe ss or o f P sy ch ia try, Y ale U nive rsity .

Ben ja m in E. Mays. Pre si de nt , Boa rd of E du ca tio n, A tlan ta , Ge orgia ; Pre si de nt 

Em er itus , Mo reh ouse College.

Dav id Mc Reynolds, W ar R es is te rs L eague.

Cha rles Mo rgan. Jr ., Exe cu tiv e Dire ct or , W as hi ng ton N at io na l Office, Am erican 

Civil Lib er ties Un ion .

Th e Rt. Rev. Pau l Moore J r. , Bi shop of N ew York. Ep isc op al Ch urch .

Rev. Rob er t V. Moss, Pre si de nt . United Ch urch o f C hr is t.

Ar ye h Ne ier, Exe cu tiv e Dire ct or , American C ivil Lib er ties Union.

Re v. K en ne th N eigh, re ti re d G en eral Sec re ta ry of th e fo rm er B oa rd o f Nationa l 

Miss ions o f t he U nited Pre sb yte ri an C hu rch in t he U.S.A.

Ele an or Ho lmes No rto n, Cha irw om an , New York Ci ty Co mm iss ion on Hum an 

Right s.

Hon. Ju sti n e W ise P olier.

Roy Pi erce . Pro fe ss or of P ol iti ca l Science. Unive rsity of Mich iga n.

D an iel H. Pol litt, Pro fe ss or of Law, Uni ve rs ity of N or th Car ol in a La w Scho ol. 

Cha rles O. Port er , fo rm er U.S. Co ng res sm an from O re go n; Cha irm an , Nationa l 

Com mitt ee f or Am nesty Now.

Rev. St ep he n G. Pri chard , D irec to r of Tra in in g, In sti tu te s of Re ligion an d 

H ea lth .

Lo uise Ra nsom , D irec to r, American s fo r A m nes ty : Gold S ta r Mo the r.

Jo se ph L. Ran h. Jr .. Co unsel, Lea de rs hi p Con ferenc e oji Civil Right s.

Milton J. E. Sen n. Ste rlin g Pro fe ss or Em er itus of Ped ia tr ic s an d Psy ch ia try, 

Yale Unive rsity .

Cha rles E. Silberman , D irec to r. Th e Stud y of Law an d Ju sti c e ; au th or . 

W ill iam P. Th om pson . Sta te d Clerk of th e Gen eral Assem bly , United Pre sb yte ri an Chu rch in th e U.S.A.

Jo hn W ill iam W ard, Pre si de nt , A m he rs t Colleg e.

Ra ym on d M. Wheele r, Pre si den t, So ut he rn Reg iona l C ounc il; Cha irm an , Childre n's F oundati on; ph ysician .

And rew J . Young. M em lie r o f Con gress f ro m G eorgia.

(T it le s fo r id en tif ication on ly.)
331

[The docume nt ref erred to at p. 242 foll ows:]

[F ro m Th e N at io n, Ap r. 16, 1973]

The Truth About Deserters

(By Robert K. Musil)

Mr. Musil, a former Army captain active in the GI movement at 

Fo rt Benjamin Harrison, was discharged as a conscientious objector. He is associate secretary of the Central Committee for Conscientious Objectors, an agency for militar y and dr aft counseling, 

and co-editor of CCCO News Notes.

Myths abound about deserters. A colorful Howard John son’s place mat warns 

diners on the New Jersey Turnpike that picking up hitchhikers can be dangerous—many of them are AWOLs. Even liberal Sen. P hilip A. Hart characterized 

AWOLs a t the Kennedy hearings on the d ra ft and amnesty last spring as “guys 

who take off with the company cash.”

In the growing debate over amnesty in the new cease-fire period, everyone is 

getting into the anti-AWOL act. In a carefully orch estrated media campaign, 

Adm inistration spokesmen, including columnist William S. White, White House 

so ci al counsel Charles W. Colson, and speechwriter Patrick S. Buchanan, have 

tried to minimize the number of deserters and to label them “malingerers, opportunists, crim inals and cowards.” Even the usually moderate editorial page of 

The New York Times, in discussing amnesty (Fe bruary 23), draw s “a sharp 

distinction between them [draft resisters] and those who deserted the Armed 

Forces.”

On the surface, those who degrade deserters seem to have a solid ease. They 

point out that unlike d raft evaders, AWOLs have alread y taken an oath to serve 

their cou ntry; many of them have criminal records, or are fleeing prosecution. 

They add that legal avenues of redress of grievances were open to them. Finally, 

and most significantly, they claim that the motivations of de serters were neither 

conscientious or pure. In support of this final imint, one of great rhetorical 

streng th in the amnesty debate, they often allud e to or quote Pentagon studies 

from the Office of the Assistan t Secretary of Defense for Manpower and Reserve 

Affairs [OASD(M&RA) ] that purport to show tha t only 5 pe r cent of all dese rters 

were motivated by anti-war feelings.

These myths are held for various reasons. Most of the public is simply ignorant 

about AWOLs. They rely on World War II cliches and stereotypes of the bad 

guy slinking away from his buddies under fire. Or, lacking the data or background 

to challenge them, they simply accept official explanations. Some politicians inadvertently add fuel to the myths when, hoping to appear reasonable and 

pragmatic, they speak about amnesty for dr aft resisters, but neglect deserters 

in order to gain support.

The current Adm inistration campaign to disparag e dese rters and perpetuate 

misconceptions is ano ther matter. [See "Wh at Nixon For gets: Congress Bestows 

Amnesty” by Harrop A. Freeman, The Nation, March 26.] By portray ing the 

numbers of deserters as large as insignificant, and impugning the ir motives as 

confused at best, but more likely as dishonorable and criminal, the Adm inistration hojies in one blow to discredit its amnesty opposition, jus tify its war policies, 

and cover up longstanding abuses in the arm ed forces.

In this climate, we need a fresh, hard look a t deserters. The facts are difficult 

to come by, but they clearly explode all of the old myths. First, it must be 

emphasized that the term “deserter” is simply a convenience. It is used by the 

military to refer to those persons who have been absent without leave for a 

period of thirty days or more, been dropped from the rolls of their unit, and 

then adm inistratively classified as deserters for purposes of record keeping, 

notification of the FBI, etc. No person absent without leave is legally a deserter 

until convicted of that offense under the Uniform Code of Military Justice. 

Desertion, as an offense, requires an inten t to remain away from the military 

permanently, and is rather difficult to prove. Thus Pentagon statistics about 

dese rters refer only to those persons who have been dropped from the ir unit 

rolls, and do not include a far larg er number of persons who at any given time 

are AWOL for less than one month.

The number of dese rters during the Vietnam era is staggering and is probably underreported. From fiscal 1965 through early fiscal 1973 (August 1, 1964- 

December 31. 1972) the Pentagon reports 495,689 cases of desertion, not counting
332

the Coast Guard. Of these cases, the Pentagon claims that more than 90 per cent 

have retu rned to military control (either by apprehension or voluntarily) and 

th at only 32,718 are still at large. Even accepting Pentagon figures for the 

moment, we can quickly und erstand the current Adm inistratio n atte mpts to 

vilify deserters. In addition to the well-known GI movement, ano ther significant 

segment of the armed forces (about 5 per cent of the Army and Marines) protested the war the best way they knew how—by leaving.

If one considers that in 1971 in the Army alone, 79,000 soldiers, or nearly six 

full divisions (7.3 per cent of all Army personnel), deserted, the problem becomes 

clear. This desertion rat e was more tha n triple the highest rate during the 

Korean War. It was also much higher than any rate recorded for World War II, 

when a gre ater percentage of U.S. troops were in combat zones and there were 

no one-year rotations. If it is kept in mind tha t low-ranking soldiers and those in 

combat-arms units are most likely to desert (only about one in ten GIs engage in 

combat), it is evident that in some Army units desertion reached epidemic proportions during the war in Vietnam.

If one adds the short-term AWOL rate in the Army (17.7 per cent in 1971) 

to the desertion rat e (there is some overlap for those who had multiple AWOLs 

or went AWOL before deserting), nearly one-quarter of all GIs walked away 

from their units for periods ranging from a couple of weeks to years. What 

were they escaping from? Given the unpopularity of the war a t home, the reports 

of maltreatm ent and mismanagement of personnel througho ut the Vietnam era, 

a massive GI movement, and desertion rates far higher than for any previous 

war, one would assume th at desertion was rela ted to anti-war feeling. In fact, 

the rat es match escalation and deescalation in Indochina in an almost perfect 

bell curve. For instance, in 1972, when the air war was escalated and received 

more national attention, Air Force desertio n rates doubled from the year before.

Not so, says the Pentagon. The official Department of Defense Information 

Guidance Series cla im s:

“It is human natur e that the grass somewhere else sometimes appears greener. 

Since the beginning of military forces, the urge to “go over the hill’' lias been 

more tha n some could resist. The reasons are also as old as m an : financial or 

family troubles, romantic involvements, earlier misconduct that led to disciplinary action, inability to adjus t to military life or family pressures before going 

overseas. . . . Only a small percentage . . . of the deserters who have fled to a 

foreig n country in recent years have been motivated by political reasons or 

anti-V ietnam feeling.”

Col. Victor A. DeFiori, the Pentagon AWOL expert and spokesman, points to 

the now widely quoted studies from his office at OASD(MARA) that sh ow 

th at “only 5 per cent” of those who desert are motivated by anti-war feelings. 

The Pentagon studies deserve close analysis, since they are the only official 

studies of desertion available. The methodology, assumptions and interpretation 

of findings used by the Depa rtment of Defense would cause any self-respecting 

sociologist to go AWOL from the profession.

Although many, if not a majo rity, of those who desert remain within the 

United States by going “underground” in large cities or even in th eir home towns, 

the samples used in the studies are based on servicemen who are known to 

have deserted or have attempted to desert to foreign countries. Maj. Gen. Leo S. 

Benade, Deputy Assistant Secretary of Defense, added confusion about the 

source of the studies when he testified at the Kennedy hearing s th at the surveys 

were based on G60 of those returned to military control from oversea®. This 

kind of questioning in the face of pena lties would have been enough to discredit 

the study. In appendices to the hearin gs, however, Benade disclosed that he 

had been in error, and that the motivation studies were based only on reports 

from commanders in the field who estim ate a man’s motivation for leaving 

through an investigation of statements, interviews with frien ds, etc. These 

reports are then filed with OASD(M&RA) on Form DD-N(A) 1039. These 

reports have been required only since December 24, 1970, and are entitled 

“U.S. Military Absentees Who Have Placed or Have Attempted to Place Themselves Under Control of a Foreign Nation to Pro test Against the U.S. or Commit 

Disloyal Acts.” Thus, given the method of collecting da ta—the compilation 

of estimates of motivation by field commanders—and realizing that such info rmation became desirable only as political exiles received attention, the Pentagon 

stud ies can be seen as a collection of unsupported impressions. They are not 

even as solid as the answers would have been from those retu rning to military 

control—the method presumed by many persons to have been used after General 

Bena de’s testimony.
333

Given all these inadequacies, the Pent agon studi es stil l reveal some astonisning conclusions. Only one-third of the sample had had previous “disciplinary or 

adm inistrative actio n” taken aga ins t them. And, it must be remembered, upwa rd 

of SO per cent of all military cou rts- martial are for the “crime” of going AWOL. 

Other military crimes include such vague acts as “disresp ect to a supe rior 

officer,” or the famous catc hall of military justice, “all othe r acts prejudic ial 

to good order and disciplin e.” This provision , Article 134 of the Uniform Code 

of Military Justice, caug ht many an anti-w ar GI in its discip linary dragnet, and 

only recently was stru ck down as unconst itutional ly vague by the Washington 

Court of Appeals. The reasons for desertion offered in the survey break down as follows: 47.5 

per cent, no reason st at ed ; 20 per cent, aliens, or to live with an alien spo use ; 

10 per cent, unde r charges or investigation, or escaped from confinement: 5 per 

cent, Vietnamese W ar; 4 per cent, family, financial, or pe rso nal; 2.5 per cent, 

claimed C.O. or pacifistic beliefs: 3.5 i»er cent, inab ility to ad jus t to mili tary 

li fe : 5 per cent, fea r of being ki lle d; 7 per cent, miscellaneous.

If we neglect the 2 0 p er cent aliens as an unty pical distorti on due to sampling, 

the Penta gon eith er does not know the motivatio ns of nearl y ha lf the deserters, 

or they supplie d reasons tha t, to the average mind, are clearly anti -wa r or 

anti-mi litary. ( “Inabili ty to ad ju st” might be bet ter tra nsl ate d as, “My drill 

serg ean t was driving me crazy ,” or “I jus t had to get out of the Army.” ) Only 

4 per cent are listed under the widely trum peted and “time-honored” person al 

reasons. In short, even if the methodology of the Penta gon's study were sound, 

its conclusions are virtually useless as an indicat or of des erte r motivation. 

If anything, they show th at GIs did not dese rt simply because “the grass is 

green er.” Priv atel y, Colonel DeFiori adm its th at motivation s are extreme ly 

difficult to determine, especially on the basis of such field reports. He adds th at 

the attem pt to distinguish between the mo tivations of d ra ft evaders and dese rters 

is bound to be a futi le exercise. Dep artm ent of Defense sta tis tic s on the numbers of dese rter s are prese nted 

with an equal au ra of infa llibility, but are equally suspect. On Jan uary 1, 1972, 

OASD (M&R A) re’eased untotaled figures showing the numbe r of dese rters 

from fiscal 1959 throu gh the first few months of fiscal 1972. These were broken 

down into armed forces members dropped from units and retu rned to mil itary 

contro l by service and year. The figures for those dropped from fiscal 1965 -early 

fiscal 1972 added up to 421,104, while those retu rned , when added up, came to 

only 286,625. These figures would indicate th at as of Janu ary 1972, there were 

134.479 dese rters at large. When questioned about this discrepan cy, Lt. Col. Jam es Heinbaugh of OASD 

(MARA) stated. “That ch art is now marked, ‘not to be used, inac cur ate. ’ We no 

longer give the breakdow n figures by yea r for numbers retu rne d to mil itar y control. You have the las t ch art of th at type. ” The cha rt, however, exac tly match es 

cu rre nt figures from DOD on numbers dropped from un it rolls, which are stil l 

given by year. Only the numbers ret urn ed and the numbers of larg e are no 

longer offered by year. They are availa ble only in sumamry. The co nclusions to be 

draw n are obvious and ominous. Eithe r Pentag on recordke eping from 1958 -72 

was ina ecurate to the tune of 100,000 deserters , or the curre nt figures of those 

retu rned to mil itary control have been manipula ted to hide a massive problem 

and serve politic al ends.

Even if one believes the notion of previous bookkeeping errors and accepts the 

curre nt figure of 32,718 dese rters at large, th at figure, too, is open to serious 

question. The Pentag on likes to pretend that it has a perf ect record of the more 

tha n 8 million Vietnam-era GIs. Th is is simply not the c as e: th e recen t r etu rn of a 

POW who had been officially buried is but one graph ic example o f the f allibili ty 

of Pentag on records.

Jon Landa u, staf f atto rne y for the Cen tral Committee for Conscientious Object ors (CCOO) in Phila delph ia, has hand led countless ret urn ing AWOL cases 

and has been in touch with othe r atto rne ys and counselors. He stat es. “I ’m p ersonally aware of at least twen ty cases where ret urn ing AWOLs gave themselv es 

up only to find no personnel records of them at all. Othe r times, the base where 

a servicem an ret urn s has to commun icate with a man ’s previous un it for info rmation, even though it ’s supposed to be in Wash ingto n.” Othe r milita ry counselors rep ort similar experiences, including numbers of men who were never 

reported AWOL at all. Rev. L. William Yolton of the Pre sby teri an Church 

Emergency Minis try on Conscience and War. says, “Ju st recently, I counseled 

with a young woman who was receiving a depen dent’s allowance the whole time
334

her husband was in Canada.” Given incidents like these, and the general unreliability of Pentagon paperw ork in the war years, from civilians at My Lai 

listed as “128 VC killed” through GIs sent home to aw ait orders which they 

never received, the Pentagon figure of 32,718 deserters at large must be seen as 

a rather shaky minimum. And, if the suddenly withdrawn records are correct, 

there may be 134,000 or more dese rters still at large. Similarly, the number of 

deserters reported by the Pentagon to be in foreign countries is far larger 

than the 2,705 or so c urre ntly claimed. This number counts only those persons 

whose whereabouts are officially known to the Department of Defense through 

investigation and intelligence services. Obviously, large numbers of deserters 

have been remiss in reporting changes of address.

Whatever the true number of dese rters still at large—and they are grea t 

enough to cause high-ranking heads to roll in any other army—why do so many 

service personnel go AWOL? Those in a position to know best are the dese rters 

themselves, other GIs, and the military counselors who have maintain ed a 

flourishing practice during recent years. Attorney Robert S. Itivkin, autho r of 

GI R igh ts and Army Justice and The Rights o f Servicemen, served in legal services as an enlisted man and currently defends GIs in Germany for the Lawyers 

Military Defense Committee of the ACLU. lie writes, “Experience lias tau ght 

us t hat many GIs are away with out leave because of something the military did 

or failed to do.”

Tlius, in addition to anti-war feelings that are prevalent in most retu rnin g 

AWOLs seen by military counselors, many GIs were finally motivated to leave 

because of lack of proper discharges, physical, psychological or racia l abuse, improper medical treatment, unfair disciplinary actions, and other failings of the 

massive and impersonal military bureaucracy. Their individual stories vary, but 

most originally enlisted in the armed forces, come from working-class families, 

and do not articu late the ir feelings well. Tin* main difference between them and 

the middle-class draft resisters is th at often they object only after their direct experience of war or life in the armed forces. By then, their legal options and 

access to outside support, and expertise are severely limited. With only a drill 

sergeant, or unfriendly commander, or career chaplain to turn to, they leave. 

Like so many refugees, they have voted witli their feet.

Take Archie, a Memphis youth recruited into the Marines despite periods of 

blacking out and a hearing impairment. At boot camp, Archie was continually 

beate n and abused because drill sergeants thought he was faking when lie passed 

out. So he went AWOL. Finally picked up by the FBI, he was sent to the 

Philadelphia Naval Base, where iie was thrown into the brig despite a physician’s 

recommendation. There he blacked out again, was beaten and thrown under a 

scalding shower by a guard for his “faking.” lie was then hospitalized and received death threats if lie talked. Finally, Archie was discharged as “undesirable.”

Or Tom, a black Marine from Philadelphia who had to quit high school to 

help his mother, on welfare, raise nine other children, lie joined the Marines to 

ear n money. When his wife began having complications with her pregnancy. Tom 

went to his drill sergeant, for help, but got none. It was then tha t he left (’amp 

Lejeune to su ppo rt his mother and exj»ectant wife. Someone in his neighborhood 

though t it would l»e “best” if he were reported. It. wasn't long before the FBI 

picked him up and retu rned him to face general court-m artial charges.

St ua rt is another to whom legal redress was unavailable or improperly denied. 

He slowly developed conscientious objection to war and requested discharge when 

his ship at New London, Conn, was armed with nuclear-tipped missiles. The 

Welsh decision broadening C.O. sta tus to persons whose objections were not 

religious had yet to l>e handed down, so Stuart could not qualify for discharge. 

Like many others he faced an almost impossible choice of up to five years of hard 

labor in a militar y prison or violating his conscience. He left.

Although Louie had applied for C.O. st atus from his local draft board (he was 

turned down) and had been part of an apprentice program in a machine shop 

(worth a 2-A deferm ent), he was drafted and sent to For t Dix. Objecting to 

war in the first place and feeling that, he shouldn’t be there a t all. Louie soon left 

Fort Dix and retu rned to his home town near Harrisburg, Pa. He tried to l>egin 

life again, but eventually the FBI began to close in. Louie was lucky; he came to 

a military counselor who discovered tha t, like many young men, he had been 

illegally drafted . A federal judge freed Louie on a writ of habeas corpus with in 

a matter of hours. But. lie and his young wife could never regain the time lost 

at Fo rt Dix, or the months of hell as the FBI closed in.
335

Scott is typical of the many Vietnam veterans who deserted after rney got 

back to the States. (The problem was so severe tha t in 1971 the Army quickly 

dropped its one exjieriment with allowing Vietnam GIs a mid-tour leave to the 

continen tal United State s.) He had enlisted in the Marines from l’eoria. Soon he 

was lighting along the DMZ where his position was overrun the first week. Scott 

has a formidable collection of medals to show for his bravery, but as he fought 

he became sickened by killing, especially the senseless destructio n and killing of 

civilians by U.S. troops, lie turn ed to his chaplain for help, explaining tha t he 

could no longer kill, and wanted out. But he was simply told to stick it out: no 

mention of C.O. discharges. Like many soldiers in Vietnam, he turn ed to drugs 

for escape and became dei>endent. Ui>on his return to the States, he again turned 

to a chaplain for help with his drug problem and his feelings aga inst war. but 

was merely advised to pray. In desj>eration, he went AWOL and sought drug 

counseling. He shook his habit, and then turned to military counselors for help. 

Despite counseling and an excellent war record, he, too, received an undesirable 

discharge. Even if a GI is “lucky” enough upon his return to receive an undesirable discharge in lieu of court-martial and stockade time, he is branded for life.

Dan was thrown into the Camp Pendleton brig on a minor charge. Like a 

number of priso ners there in the late 19(50s, he was beaten and hanged by his 

wrists on a fence for long periods of time. He develojted severe i>syehological 

problems and went AWOL to Canada. Like many dese rters in Canada, he was 

unable to make it in a strange country and retu rned to military control despite 

his hatred and fear of stockades. He too was discharged as undesirable. Since 

then, he has bounced from one menial job to ano ther and continually threatens 

suicide. He is barred from VA benefits and very few employers will hire him. 

Even fewer people seem to care about his days hanging from the fence at Camp 

Pendleton.

All of these men should have been easily and honorably discharged when their 

problems first arose, but like most AWOLs they were the unfortun ate victims 

of a policy of reta ining personnel at any cost. Although the number of administra tiv e discharges rose rapidly in 1971 as the armed forces tried to reach the 

reduced force levels ordered by Congress, and have shown a rapid increase in the 

Navy recently as racial problems rema in unresolved, proper discharges were 

given in miserly fashion. [See “Administrative D ischarges: The ‘Less Than Honorable' Solution” by John Grady, The Nation, February 19.]

One instruc tor at the Army’s Adjutant General’s Corps School at F ort Benjamin 

Harrison. Ind., where personnel officers are trained, bragged that while stationed 

at Fort Sill. Okla. “he had never let a single discharge get through his office.” His 

attitude—that most GIs seeking discharge are merely shirkers—is not atypical, 

despite regulation s th at provide for discharge in a number of clear-cut cases. But 

even these provisions are not publicized by the armed forces, and are often 

unknown to GIs.

In orde r to fill this gap, CCCO had to print and distribute free to GIs thousands of booklets on each of the five tyj>es of discharge. Even then, despite a 

Supreme Court ruling. Flower v. f7.S., perm ittin g leafletting on open bases, the 

Army went to court to bar distribu tion of pamphlets that merely explain the 

legal righ ts to discharge. Only recently was the Army overruled in CCCO v.

Fellows, and d istribution of information on discharges permitted.

The resu lts of these policies have been disastrous. For example, the discharge 

available for persons who become C.O.s af ter entry to active duty is not even 

mentioned in the curriculum at the Adjutant General’s School, and most GIs 

still believe, incorrectly, that it is impossible to get out if you did not declare 

C.O. sta tus to your draft board. Despite this, more than 8.000 GIs applied for 

C.O. discharge, while thousands more were intim idated after an initial inquiry 

by being told no such provisions existed. Or they found that the ir pai»erwork 

mysteriously was lost or arbit rarily denied at the local level. Until federal court 

intervention in the process in 1909, almost all applications that reached the 

Pentagon were turn ed down. Thousands of other GIs, of course, never qualified 

at all because the courts still do not recognize objection to a particular war. 

Many of these GIs. faced with harsh sentences in military stockades, o r violating 

the ir consciences, simply went AWOL.

The record is similar with o ther discharges for erroneous induction/enlistment, 

hardship, medical or psychological problems. Dr. Curtis Ta rr testified before 

Senator Kennedy’s hearings on the d raft in 1972 th at large numbers of men had 

been illegally drafted . The Gates Commission, among others, reported that before 

recen t pay raises, many GIs were destitute and living on welfare. Dr. Peter
336

Bourne has written th at the psychological stresses of basic training are even 

more severe than those experienced in combat. And, of course, repo rts of racia l 

abuse, stockade beatings, spinal meningitis, and lack of medical care were rampant. Peter Barnes observes in “Paw ns: The Plig ht of the Citizen Soldier” that 

“every week at Fort Dix, New Jersey, the Army’s m ajor Northea stern training 

base, there are an average of four suicide attem pts. . . . Nine actual suicides 

occurred at Fort Dix in 1968.”

It is no wonder that the Nixon Administration is trying to discredit deserters. 

To acknowledge their tru e numbers and the ir real motivations would require 

an admission th at massive numbers of ordinary, enlisted GIs rejected the war, 

and t ha t countless thousands were denied humane tre atm ent and legal discharges 

by a military th at felt it could keep it s troops in the field only by fear and force. 

If the tru th were known about deserters, the Adm inistration migh t be forced 

to consider sweeping changes in military justice and personnel policies—including, 

not insignificantly, the right to dissent from war, and the right to quit one’s job.
AMNESTY

M O N D A Y , M A R C H 11 , 1974

H ouse of Representatives,

Subcommittee on Courts. Civm Liberties,

and tiie Administration of J ustice

of the Committee on th e J udiciary,

Washin gto n, D.C.

The subcommittee met. pursuant to notice, at 10:15 a.m., in room 

2141. Rayburn House Office Building, Hon. Robert M. Kastenmeier 

(chairman) presiding.

Present: Representatives Kastenmeier, Drinan, Mezvinsky, Railsback, Smith, and Sandman.

Also present: William P. Dixon, counsel: and Thomas E. Mooney, 

associate counsel.

PROCEEDINGS

Mr. Kastenmeier. The committee will come to order.

Today, the Subcommittee on Courts, Civil Liberties, and the Administration of Justice, begins its second day of hearings on legislation 

relating to the subject of amnesty.

Like our first day of hearings, this past Frid ay, we again have a 

larger than usual list of witnesses to hear. For t hat reason we would 

respectfully request witnesses to keep their testimony to a maximum 

of 15 minutes to permit time for questions from committee members.

Our first witness this morning is a former colleague of ours from 

the House. He is the Honorable Senator from Ohio, Senator Robert 

Taft, Jr.

We are very pleased to greet you. Senator, and have you return to 

the House of Representatives and come before this committee this 

morning. Please proceed.

TEST IMONY 0E HON. ROBERT TAFT, JR ., A U.S. SENATOR FROM 

TH E STATE OF OHIO

Senator Taft. Thank you. very much, Mr. Chairman.

I would like to commend the subcommittee for holding these hearings and thank you for permitting me to appear this morning.

The application of our Nation’s Selective Service laws durin g the 

Vietnam war confirmed a great number of the apprehensions I had 

regarding the desirability of the continuation of compulsory military 

service. As members of this subcommittee are no doubt aware, a great 

number of inequities developed regarding the application of these laws 

over the last 10 years, particularly with regard to conscientious objection. Not only were legal standards changed in this area, but additionally there were significant variances in the way the military Se- 

(337)
338

lective Service System was implemented throughout the country. Unfortunately, even with negotiation of the Paris Peace Agreement on 

January 27, 1973, and the successful transition to the concept of an 

All-Volunteer Army, many inequities and problems remain with regard to individuals who refused induction into the Armed Forces, or 

decided to unilaterally withdraw from service afte r induction. To 

date, however, almost with unanimity, any discussion directed toward 

consideration of the plight of such individuals becomes entangled in 

emotional debate as to the propriety of U.S. military involvement in 

Southeast Asia.

I submit to this subcommittee that the issue to be considered is not 

whether the dra ft resisters were right or wrong, nor whether the 

United States should have become involved in the Vietnam conflict. 

Enough bitterness has already been generated in the discussions of 

these issues. Rather, consideration should be given to the issue of 

establishment of a practical method whereby an estimated 30,000 individuals could return to this country or cease to be fugitives without 

creating further divisions among Americans. Understandably, there 

will be controversy generated by groups with inflexible positions on 

this issue, no matter what policy is pursued, but I am of the opinion 

tha t a sizable majority of citizens of this country will support constructive action by the Congress and /or the President on this subject.

Particularly, those of us who are elected officials, T believe, must be 

responsive to problems that have been created in this area—these problems simply will not disappear, no matter how much or how many of 

our colleagues in the Congress or officials in the executive branch may 

wish that they would.

In this regard. I woidd like to quote from a letter tha t former 

Secretary of Defense Melvin Laird sent to Cmdr. Ray R. Soden, 

Veteran of Foreign Wars of the United States, regarding the question 

of amnesty:

Throughout my career of public service, I have learned to avoid absolute, 

dogmatic position. Neither the political system nor the judicial system of the 

United States works on “blan ket” and arbitra ry approaches. Both recognize the 

vital roles of (1) circum stances and (2) motivation in determining political or 

judicia l solutions to our problems. As I have state d, we pride ourselves on 

adm inistering justice with mercy and understanding.

Mr. Laird goes on to state, and I again quote:

With respect to the question of a “blanket” or “general” amnesty, let me emphasize th at I am now and always have been opposed to a sweeping general gra nt 

of amnesty.

However, there are individual cases where the circum stances requ ire that 

justice provide for what some have termed “conditional amnesty”—

And what I have referred to in mv bill as “earned immunity.”

I do not like this term and only use it for lack of a better description of an 

equitable approach to this difficult problem. It is my view that circum stance 

and motivation on a case-by-case basis, under our concept of justice, must be 

taken into account today when dealing with violators of our Selective Service 

laws. It is notew orthy that only a small perce ntage of these men have thus far 

been prosecuted by the Department of Justice, and in these cases widely differing penalties have been assigned to individuals varying by jurisdiction.

Mr. Chairman, I would ask to have this correspondence that Mr. 

Laird has shared with me printed in its entirety in the hearing record 

as an appendix to my statement.
339

Mr. Kastenmeier. Inasmuch as the letter you refer to was sent to me 

by Mr. Laird, it will be inserted in the record at this point, together 

with my letter inviting him to testify. To avoid duplication, the 

letter appended to your statement will be kept in the files of the 

subcommittee.

[The letters referred to follow:]

February 20, 1974.

Hon. Melvin R. Laird,

Reader’s Digest Association,

Washington, D.C.

Dear Mel : My Subcommittee on Courts, Civil Liberties, and the Adm inistration of Ju stic e lias scheduled hearings on March 7 and March 8, 1974, on pending 

legislation relatin g to the subject of amnesty. The measures involved are H.R. 

236, H.R. 674, II.R. 2167, II.R. 3100, H.R. 5195, II.R. 10979, H.R. 10980, II. Con. 

Res . LU , an d II. Con. Re s. 385.

I have read with intere st your recent statem ents on amnesty and it would 

be of gre at value to the Subcommittee if they could have the benefit of your 

views on this subject. Hearings are scheduled for the morning of March 7 and 

tlie entire day of March 8. Although I would prefer to receive your testimony 

at 10:00 a.m. on March 8, I would be pleased to hear from you at your convenience on either of these days.

I would grea tly apprecia te it if you could give me a call if you are able to 

testify before us.

Sincerely yours,

Robert W. Kastenmeier.

Chairman, Subcommittee on Courts, Civil Liberties,

Administration of Justice.

Washington, D.C., February 22,197^.

lion . Robert W. Kastenmeier,

Chairman, Subcommittee on Courts, Civil Liberties, and the Administration of

Justice, Judiciary Committee, House of Representatives, Washington. D.C.

Dear Bob : Many than ks for your letter of February 20tli and for your kind 

invitation to me to present testimony on the subject of amnesty before your

Sui>committee on Courts, Civil Liberties, and the Adm inistration of Justice.

I am very sorry th at my schedule is alre ady full on March 7tli and 8th and I 

will not be able to testify. I am, however, enclosing a copy of my lett er to Commander Ray It. Soden, Veterans of Foreign Wars. This let ter accu rately portra ys my position on the subject of amnesty and you are welcome to use it.

With best wishes and kindest personal regards, I am 

Sincerely,

Melvin R. Laird.

The White House, Washington, January 28, 197}.

Comdr. Ray R. Soden,

Veterans of Foreign Wars of the United States, Washington Memorial Building,

Washington, D.C.

Dear Commander: I received a copy of your lett er to the Presiden t on amnesty 

and would like to comment.

As a member of the Veterans of Foreign Wars. I share with you, Commander, 

a great pride in our nation's strength and freedom. As part of our heritag e of 

freedom, we have alwa ys cherished the redemptive quality of our system of 

justice.

As you know, during my tenure as Secretary of Defense, I felt strongly tha t 

it. was completely inap propriate, unwise and unjust to consider granting any 

form of amnesty. I felt th at while brave Americans were fighting and dying in 

battle any consideration of grantin g amnesty was unw arranted and would have 

had an adverse effect on the morale of our Armed Forces. My feelings at th at 

time were identical whether the amnesty being discussed by some was “conditiona l” or “general.” I did make known, however, th at looking beyond Vietnam 

we were studying various repo rts and studies on the complex question of amnesty.
340

On my departure from the Departm ent of Defense, circumstances had changed 

markedly. No longer were American troops fighting and dying in combat anywhere in the world. As a resu lt of changed conditions, my views with respect 

to considering the question of amnesty have also changed.

Throughout my career of public service, I have learned to avoid absolute, 

dogmatic positions. Neither the political system nor the judicia l system of the 

United States works on “blanket” and arbitra ry approaches. Both recognize 

the vita l roles of (1) circumstances and (2) motivatio n in determ ining political 

or judicial solutions to our problems. As I have said, we pride ourselves on 

administering justice with mercy and understanding.

With respect to the question of a “blanket” or “gen eral” amnesty, let me 

emphasize th at I am now and always have been opposed to a sweeping general 

gra nt of amnesty. However, there are individual cases where the circum stances 

require that justice provide for what some have termed “conditional amnesty.”

I do not like this term and only use it for lack of a better description of an 

equitable approach to this difficult problem. It is my view that circumstance 

and motivation on a ease-by-case basis, under our concept of justice, must be 

taken into account today when dealing with viola tors of our selective service 

laws. It is noteworthy that only a small percentage of these men have thus fa r 

been prosecuted by the Department of Justice, and in these cases widely differing penalties have been assigned to individuals varying by jurisdiction.

I hope these comments will allay some of your unde rstandable concerns. As 

you know, I have nothing but a profound sense of respect and gratitu de to the 

men and women who served in Vietnam, 56,244 of whom gave the ir lives in the 

service of o ur country. It is a lasting source of pride to me tha t I had the opportunity and privilege to associate with such fine Americans and the ir families. 

I have never committed any act, nor would I, which would be a “breach of 

fa ith” with these men and women.

Finally, I am grateful to the Veterans of Foreign Wars and to the Ladies 

Auxiliary for the ir ste adfas t supp ort of our defense effort, and especially for 

your steadfas t support during my service as Secretary of Defense. I tru st, and 

am sure, that you will contin ue to extend that supp ort to the President and to 

his defense policy in the cause of strength and peace.

Sincerely,

Melvin R. Laied,

Counsellor to the President

for Domestic Affairs.

Mr. Kastenmeier. You may proceed.

Se nator T aft, Th an k you. Mr. Ch air ma n and mem bers of the sub ­

com mittee, not only do I commend Mr. Lai rd ’s a pp roa ch to this prob ­

lem, bu t I also endorse the concept of alt erna tiv e service th at is suggested in h is c orrespon denc e. T ha ve thou gh t the concept of a lte rnative 

serv ice to be the mo st equitable solution to th is issue for some tim e, a nd 

on December 14. 1971, I introd uced legislation in the Senat e th at 

wou ld h ave established such an a pproach.

While no legisla tive action was tak en on my pro posal du rin g the 

92d Congress, my princ ipal objective was achieve d as conside rable 

natio nal discussion was gen era ted on th is issue. I believe such a dis ­

cussion was he lpf ul f or the c ountr y as it f ocused t he at tention o f m any 

Am erican s on the pract ica l questions th at are involved when a nation 

makes a decision to req uir e its young men to serve in a war.

I hav e again , in this Congres s, introd uced leg islation th at would 

hav e establis hed the concept of alter na tiv e service fo r indivi duals who 

refuse d i nduct ion in t he arm ed services.

Jo in in g me in the int rodu cti on of this legislation, the Ea rn ed Im ­

mun ity Ac t of 1974. S. 2832. was Senator Pell of Rhode Isl an d, with 

cosponsors hip to date of Senators Pac kwood , Bid en, Ha skell, and 

Me tca lf. I note th at elements o f this proposal an d the one I subm itte d
341

in the 92d Congress are con tained in leg islation pending before this 

subcomm ittee, inc ludin g an alm ost ide ntical ap pro ach in H.R. 13001, 

introd uced by Con gressm an Robison of New lo rk . I also note th at 

the alternative service concept is inc orpo rat ed in pro posals of Congressm an Koch, H.R. 674: and Con gressm an McCloskey, 1I.R. 10979 

and H .R, 10980. S. 2832, sim ila r to pro posals b efore th is committee, w ould a uth orize 

ind ivi du als who vio lated the selective service laws between Au gust 4, 

1964, th e da te of the Gulf of To nkin inc ide nt, and Ja nu ar y 27, 1973, 

the date of the Pa ris Peace Agree me nt, to ap ply fo r immu nity from 

pro secutio n a nd punish me nt up to 1 y ear af te r the effective d ate of the 

act. Suc h appli catio n would be subm itted to an Im mun ity Review 

Bo ard pa tte rned af te r the pro ced ure imp lem ented by Presiden t T ru ­

man in 1'946 afte r W orld W ar II .

The Bo ard wou ld be composed of five mem bers appoint ed by the 

Pr esiden t with the advice and consent of th e Senate. Of th e five members, four wou ld be nominated by the Pr esiden t fro m ind ivi duals 

recommended by the m ajor ity and minority l ead ers of the S ena te, and 

the Speaker an d minority lea der of the House. The du ratio n of the 

Bo ard would be fo r 4 years with the Pr esiden t ap po intin g the 

chairma n.

The Bo ard would be autho rized to only review vio lations of the 

M ilitary Sele ctive Service Ac t and would be empowered to gr an t immunity upo n the com pletion of alternative service of up to 2 yea rs 

in the Arme d Forces or in public or pr ivate service co ntrib uting to 

the natio nal health , sa fety, o r welfare.

Individu als serving prison sentences fo r crim es un rel ate d to selectiv e service vio lations would no t be eligible for such im mu nity, nor 

would ind ivi du als under ind ictme nt for any offense un related to the 

act. Exam ple s of con tem plated public service would be 2 y ears in the 

Peace Corps or V IS TA wi th com pen sation at a level to pro vid e a 

sta nd ard of liv ing com par able to service in the Arme d Force s at the 

lowest pay gra de. Th e Bo ard would not be pe rm itted to den y immu nit y to any qualified indiv idual an d would be giv en discretion as 

to the len gth of alt erna tiv e service, no t to exceed th e 2-year req uir ement. Ea ch indiv idual case wou ld be reviewed on its ow n me rits with 

the B oard specifically autho riz ed to cons ider m iti ga tin g circums tanc es 

with rega rd to the len gth of service required.

First, the Bo ard could conside r ina ccura te in terp retatio n of the act 

by an indiv idual at the tim e he com mitted the violation. Second, the 

Bo ard could conside r circ umstan ces where the ap plican t could have 

qualified fo r classification as a conscie ntio us objector un de r the 

decisions of the U.S . Supre me Co urt pr ev ailin g on Ja nu ar y 27, 1973.

To illus tra te, the Suprem e C ou rt du ring the Indo china p eriod g ra dually bro adened i ts definition o f conscien tious o bjec tions with the case 

of Wels h v. Un ite d States, 398 U.S . 333, decided on Ju ne 15, 1970, 

intro du cin g a significant cha nge in the law. Before th at decision, indiv idu als seeking conscientious objector s tatus h ad to raise th ei r objection in relati on to th ei r belie f in a Supre me Being . T he Supre me C ourt 

in the 'Welsh case rul ed th at a beli ef in a S uprem e Being was no longer 

required, and th at oth er dee p-felt perso nal views could suffice.
342

Obvious inequitie s became evide nt. Fo r example, in one fam ily, tw o 

broth ers might have held the same dee p-felt opposition to war not 

based on religious convictions. Th e eld er son, who became d ra ft eligible 

before th e Welsh decision, could not have been classified as a conscientious objecto r an d m igh t have gone to prison o r i nto exile. 11 is you nger 

broth er, holding exa ctly the same views on war, could have become a 

conscientious obje ctor. He would not be a c rim ina l, and could be lawfully serving his co untry in a lte rnative service.

Th ird , the Bo ard could conside r circum stan ces whe re an ap pl ica nt ’s imm ediate fam ily was in despe rate need o f his personal presence 

fo r whi ch no othe r substitute could be fou nd, and such need was not 

of the ap plican t’s own mak ing.

Fo ur th , con sideration by the Board could be given to the Jfact that 

the ap plican t dem ons trat es a lack of menta l capacit y which migh t 

hav e rendered his acts less tha n willful. Tt is entirely possible th at 

there are gro ups of men of low men tal capacit y who, throug h peer 

pressu re or otherwise, took a ctio n which, upo n full exa minat ion , pr ovides a basis fo r m itig ation of the len gth of service.

Fif th , the Board could conside r whether the ap pli cant has in the 

pas t, or is cu rre ntly, sub ject to jud icial sanctio ns fo r comm itting 

offenses for which he seeks imm unity.

Sixth, the B oar d would be empowered to consid er such ot he r cir cumstances as would be con sistent with these I have alr ead y enumerate d. 

My proposal, however, specifically forbid s red uct ion of the maxim um 

ter m of service for th ose ind ivi duals whose sole m oti vatin g factor was 

selective opposition to the Vietnam war. Suc h ind ividuals, while not 

disqualified from sec uring immunity , cannot use th at facto r as the 

basis for any reduct ion in th e term, since it has never been a basis for a 

sim ila r acti on by any of t he d ra ft regula tions. On th is po int I would 

ref er the subcomm ittee to Gil lett e v. Un ite d State s. 401 U.S . 437, 

decided in 1971 by the Sup rem e Cou rt.

As I have outlin ed, the concept of alt erna tiv e serv ice th at I have 

pro posed specifically exclu des deserters. I recognize the ap pa rent 

inequities th at thi s appro ach may raise on a curso ry exa min atio n of 

thi s issue. Upon protracted reflection, howe ver, I h ave c oncluded t hat 

it w ould be unwise to in clud e such indivi duals in the alternative service 

concept, as deserte rs are covered by an entirely different legal system 

th at is ine xtricably inter tw ine d with con sidera tions of m ili tary d isc ipline. Individu als who deserte d from mili tary servic e, pa rti cu larly 

those who lef t functio nin g combat units, had a fa r more dis ruptive 

impac t on our Na tio n’s defense posture t ha n ind ivi duals who refused 

ind uct ion . Stati stics brou gh t to my att en tio n by the De partm ent of 

Defense sug gest th at less than 5 perce nt of th e ind ividuals who 

deserted du rin g the V ietnam conflict did so fo r ideological opposition 

to the war, and as to ind ivi duals in this ca teg ory g reat flexibility was 

administered to constructively resolve indiv idu al cases. Th at is not to 

suggest, however, th at pe rhaps the subcommittee sho uld not fu rthe r 

examin e this are a as there may be ineq uities th at have not been satis ­

fac torily resolved.

The other bro ad objection perta ins to the concept of alt erna tiv e 

service itself. Why not a blanket amn esty? Such an appro ach , in my
343

opinion, is too broad and would include individuals who did not have 

deep moral convictions against war. Former Truman Board Member 

James F. O'Neil’s statement to this subcommittee makes this point 

very succinctly. I would caution, however, tha t the Truman Board 

procedures certainly could lx? improved upon.

Further, as I stated at the outset of my statement. T do not believe 

this issue should, or can. be resolved on the question as to correctness 

of 1T.S. military involvement in Southeast Asia. The Military Selective 

Service Act was in effect at the time of the Vietnam conflict, and that 

fact cannot be ignored, no m atter how strong one may object to the 

premises upon which it is based. The proper role I would suggest for 

any individual who opposes a law is to use every legitimate peaceful 

means at his disposal to change it and. if his efforts are unsuccessful, 

be prepared to make a choice from the alternatives tha t he is then 

faced with. To simply state that any individual is above the law because of deep-felt views of principle, is to suggest a society without 

any order or meaning. The concept of alternative service is not punitive. It is offered in a positive context; for example, service in VISTA 

or the Peace Corps. I would emphasize that no individual would be 

forced to make such a commitment to serve, it would be an individual’s 

own choice. Such service would be consistent with the legal obligation 

tha t resisters are faced with and. in essence, would simply provide 

another alternative to permit that obligation to be fulfilled.

Mi-. Chairman, before concluding my statement. I would like briefly 

to comment on two issues which have been raised in the hearings to 

date.

First, I noted with interest testimony that rejected not only unconditional amnesty, but also the concept of alternative service. The 

general premise of this testimony, as I understand it. is that individuals who have violated the Military Selective Service Act or deserted must be required to pay a criminal penalty for violating the 

law. T would sugegst to this subcommittee that a large percentage of 

such individuals have in the past been offered an alternative other 

than a criminal penalty. Many deserters have been permitted to rejoin their units with only a reprimand. Resisters have not been prosecuted if they agree to enlist in the armed services. These approaches 

had been the policy of the Justice and Defense Departments before 

the expiration of the draft. I quote from a response I received in November of last year from Assistant Attorney General Petersen in this 

regard. He states as follows:

Tt was our policy to allow such a man. in the absence of aggrava ting circum ­

stances, to remove his delinquency under the Military Selective Service Act by 

subm ittin g to induction processing and to authorize the dismissal of his indictment upon successful completion of induction. Th at policy was term inated on 

July 1, 1973. because of the expiration of the induction autho rity on th at date.

In our view, that policy was beneficial to all concerned for the reason that 

the inductee would render valuable service to our country for a period of twentyfour months and he would have the satisfac tion of having fulfilled his service 

obligations. On the other hand, men convicted and sentenced for violatio n of the 

Act performed no worthwhile service of any kind and, in most instances, were 

permitted to return to the ir normal way of life in a considerably short er period 

of time. For example, in fiscal year 1972, the average term of imprisonment
344

imposed for draft law violations was 36.2 m onths ; however, the average actual 

time served in custody was 9.1 mouths. Moreover, 1,178 of the 1,643 defendants 

convicted were placed on probation h.v the courts, with the result that less tha n 

one-third of the men convicted ever received a prison sentence.

Subsequently to July 1, 1973, it was our policy to inform a dr aft delinquent 

prior to indic tmen t th at he was in violation of the law and prosecutive action 

aga inst him was contemplated unless he were willing to correct his delinquency 

by enlisting in the United States Army. In that event, consideration would then 

be given to permitting him to purge his violation without being subjected to 

criminal charges. That policy has been abandoned, however, because the Department of Defense advised us th at it would not accept for enlistme nt men who 

are in violation of the draft law, whether under indictme nt or not. We were 

recently informed that the enlistment policy was reconsidered, at our request, 

within the Depa rtment of Defense and by the Secretary of Defense, but it was 

concluded tha t it should continue in effect.

Since tha t decision could place a sub stantial prosecutive burden on the United 

States Attorneys throughout the country, as they no longer have a viable alt ernative to offer the defendan ts other tha n prosecution, we are again asking the 

Departm ent of Defense to reconsider this matter.

Unfortunately, as Mr. Petersen states, the Department of Defense 

has refused to continue such a policy, but the point is th at alternatives 

other than criminal sanctions have been a part of this country's policy 

and the concept of alternative service is not a new or radical approach, 

especially when supplemented with the conscientious objection alternatives already contained in the law. In the general context of Justice 

Department policy on this issue, it is also interesting to note the last 

paragraph I quoted of Mr. Petersen’s letter pertaining to the burden 

of prosecuting draft resisters throughout the country. Statistics from 

the 1973 Semiannual Report of the Director of the Administrative 

Office of the U.S. Courts would indicate tha t this burden on the Justice Department has been translated into a very uneven approach 

of prosecution with the determining factor quite often being the geographical region of the country tha t an individual is from as to the 

disposition of the case. For example, during fiscal year 1972. only 1 

of Ohio’s *218 defendants in selective service cases served a prison 

sentence compared to Minnesota with 94 convictions, 47 of which resulted in imprisonment, out of a total of 141 defendants.

Mr. Chairman, I ask tha t the correspondence on this issue with the 

Departments of Justice and Defense regarding Government policy 

toward dra ft resisters be printed in the hearing records.

Mr. Kastenmeier. Without objection, they will be received.

[The documents referred to follow:]

D ep artm en t of J u st ic e. 

Washington, November 9, 1913.

Senator Robert Taft, Jr.,

U.S. Senate,

Washington, D.C.

Dear Senator: This is in reply to your letter of October 24, 1973, to Acting 

Attorney General Robert H. Bork regarding the Departm ent’s policy to permit 

dr af t evaders to enter the Armed Forces in lien of prosecution.

It was our policy to allow such a man, in the absence of aggrava ting circum ­

stances, to remove his delinquency under the Military Selective Service Act by 

subm ittin g to induction processing and to auth orize the dismissal of his indictment. upon successful completion of induction. That policy was terminate d on 

July 1. 1973, because of the expiration of the induction author ity on that date.

In our view, th at policy was beneficial to all concerned for the reason that 

the inductee would render valuable service to our country for a period of twenty-
345

four months and he would have the satisfactio n of having fulfilled his service 

obligations. On the other hand, men convicted and sentenced for violation of 

the Act performed no worthwhile service of any kind and, in most instances, 

were perm itted to return to the ir normal way of life in a considerably shorter 

period of time. For example, in fiscal year 1972, the average term of imprisonment imposed for dr aft law violations was 36.2 mo nth s; however, the average 

actu al time served in custody was 9.1 months. Moreover 1,178 of the 1,643 

defendan ts convicted were placed on probation by the courts, with the resu lt 

that less tha n one-third of the men convicted received a prison sentence.

Subsequent to J uly 1, 1973, it was our policy to inform a draft delinquent prior 

to indictment that he was in violation of the law and prosecutive action against 

him was contemplated unless he were willing to correct his delinquency by enlisting in the United States Army. In that event, consideration w’ould then be given 

to perm itting him to purge his violation without being subjected to criminal 

charges. That policy has been abandoned, however, because the Department of 

Defense advised us that it would not accept for enlistmen t men who are in 

violation of the d ra ft law, w hether under indictm ent or not.

We were recently informed that the enlistme nt policy was reconsidered, at our 

request, within th e Department of Defense and by the Secretary of Defense but i t 

was concluded th at it should continue in effect. Since that decision could place a 

substan tial prosecutive burden on United States Attorneys throughout the country, as they no longer have a viable altern ative to offer the defendan ts o ther than 

prosecution, we are again asking the Department of Defense to reconsider this 

matter.

Sincerely,

Henry E. Petersen, 

Assistant Attorney General.

October 24, 1973

Hon. Robert H. Bork,

Acting Attorney General,

Department of Justice, Washington, D.C.

Dear Mr. Bork : Recent reports have come to my atten tion tha t the Department 

of Defense has rejected the Justice Department’s proposals to p ermit individuals 

in violation of the Selective Service Act to volunteer for service in the Armed 

Forces in lieu of prosecution.

The concept of service in the Armed Forces would appear to be be tter for the 

Nation than prison sentences, and, as I understand past practices, individuals 

facing indictment under the Selective Service Act have been permitted to undertake service without being subject to criminal sanctions. I would apprecia te a 

clarification of the current and past Departmen t of Justice policy on this issue 

and projections for the futu re disposition of this matter.

With every good wish.

Sincerely,

Robert Taft, Jr.,

U.S. Senator.

October 24, 1973.

Hon. J ames R. iSchlesinger,

Secretary of Defense, The Pentagon,

Washington, D.C.

Dear Mr. Secretary: Recent reports have come to my atte ntio n that the 

Department of Defense has rejected the Jus tice D epartment’s proposals to itermit. 

individuals in violation of the Selective Service Act to volunteer for service in 

the Armed Forces in lieu of prosecution.

The concept of service in the Armed Forces would app ear to be b etter for th e 

Nation than prison sentences, and, as I understand past practices, individuals 

facing indictment under tlie Selective Service Act have been ]>ermitted to undertake service without being subject to criminal sanctions. I would appreciate a 

clarification of the current and past Department of Defense policy on this issue 

and projections for the futu re disposition of this issue.

With every good wish.

Sincerely,

Robert Taft, Jr. ,

U.S. Senator.

31-658 0 - 74 - 24
346

Assistant Secretary of Defense, 

Washington, D.C., November 2,1973.

Hon. Robert Taft, Jr.,

U.S. Senate,

Washington, D.C.

Dear Senator Taft : This is in response to your lett er to Secretary Schlesinger 

of October 24, 1973, requesting clarification of Departm ent of Defense policy 

relative to the voluntary enlistmen t of persons who are under indic tmen t or 

investigation fo r alleged violation of the Selective Service Act.

It has long been the policy of the Depa rtment of Defense to preclude th e voluntary enlistment of persons under indictment for a criminal offense, including 

violations of the Selective Service Act. During i>eriods when dr af t author ity was 

exercised by the President, the military services accepted for induction those 

reg istr ants who reported pur suant to orders issued by th e Selective Service System witho ut regard to arrangements which may have been made between the 

individual concerned and ILS. Attorneys relative to possible prio r offenses.

In anticipation of the term ination of induction authority and at the requ est of 

Assistant Attorney General Henry Petersen, the Departm ent of Defense twice 

requested that the Military Departments reconsider their policy and perm it the 

enlistme nt of persons in lieu of prosecution or indictment for Selective Service 

Act violations. The Service Secretaries considered and reaffirmed the ir position 

adamantly on both occasions. Secretar.v Schlesinger personally considered the 

issue in August of th is y ear and reaffirmed the pre sent policy.

The Selective Service System (including the penalties for violations) was 

intended to provide manpower for the Armed Forces, and motivation for m ilita ry 

service was not a prim ary consideration. Induction of alleged violators in lieu 

of prosecution was not inconsistent with tha t policy. Tha t concept of our armed 

forces has been completely revised, however, and proper motivatio n for service 

is now fundame ntal to the success of the all-volunteer force. The individual who 

enlists under the coercive t hr ea t of prosecution is not a real volunteer and does 

not trul y desire to be a professional soldier, sailor, airm an, or marine. Because he 

is not properly motivated to become an effective member of the armed forces, 

the forced volunteer has a high potential for difficulties in th e service.

The Military Services unanimously oppose the enlistme nt of these men because 

it violates the all-volunteer concept and implicitly condones the action of draft 

evaders. Such a policy smacks of equating military service with penal servitude. 

The Department of Defense has previously solicited Department of Justice cooperation in terminating the practice of permitting any youthful offender to enlist 

in the military to avoid crim inal prosecution irrespective of the natur e of the 

offense involved. The absolute eradication of the “enlist or jail” option is a 

matter of considerable concern to the Depa rtment of Defense in our efforts to 

ensure a highly motivated all-volunteer Armed Force and to bolster and renew 

public confidence in military service as a thoroughly respectable and honorable 

profession.

The Depa rtment of Defense is equally concerned that a relaxation of this 

exclusionary policy for Selective Service Act violators would establish a thoroughly undesirable precedent which offers inductees in any future conflict the 

option to avoid service until peace is restored. There is no way to equate service 

in peacetime with service in armed conflict. The proposal is fundamentally u nfa ir 

to the two and one-half million men and women who performed their service 

during a period of conflict and, in pa rticular, to over 350,000 maimed and wounded 

and over 45,000 who gave the ir lives. This precedent would dangerously impair 

the effectiveness of any futu re induction system.

The Department of Justice has term inated the practice of offering an enlistment altern ative to individuals already under indic tmen t for Selective (Service 

Act violations. It is my understanding, however, that U.S. Attorneys are continuing to make the option available in cases which remain in the pre-indictment 

stage. This situation is the subject of current discussions between the Dep artments. In the absence of a satisfactory accommodation, military recruiters will 

continue to reject enlistments which are known to be motivated by an offer to 

forego indictment or prosecution.

It is hoped that the foregoing information will be of assistance to you. Your 

inte rest in this matter is appreciated.

Sincerely,

Leo E. Benade,

Lieu tena nt General, USA,

Deputy Assista nt Secretary of Defense.
347

Senator Taft. I also ask tha t a chart from the 1973 semiannual report 

of the Director of the Administrative Office of the United States 

Courts showing the disposition of defendants charged with Selective 

Service Act violations be printed in the hearing record.

Mr. Kastenmeier. Without objection, th at will be done also.

[The document referred to follows:]
UNITED STATES DIS TR ICT COURTS

M S P «S1 TICK OF DEFENDANTS CHARGED WITH SE L EC T IV E SERVIC E AC T VIO LATIO N S

348

VU f TEP S TAT’.. T.’T STK I CT CO!'h TS

DISPOSITION OF DEFENDANTS CMAKGFD WITH SELECTIVE S t « - I ~S ACT V b IA TK V

SHOWING T.PE OF SENTENCE. UY S.M IC1. FlM 'Al. YEAN -QNrf.’fFb

C1 reu a1

d i s t r i c t

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d efe n d a n ts

Not C on vic te d C on vic te d and Se n* en ci

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Ave ra ge

se n te n ce

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im pris cn-

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1

N.A .K .A .

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E a ste r n .................. 8 5 - 3 5 2 4 1 3 -

w estern .................. 11 8 8

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E a stern .................. 182 13 3 12 3 8 2 49 34 14 1 2 1 1

w e s te r n .. . . . . . 77 36 36

-

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S o u t h e r ................

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127

40

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40 z 2823 2022 61 2 1 z 1 272 5

Ten ne ss ee

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w e ste r n .................. 9 2 - 2 - 4 4 • 4 ■ -

Se ve nth C ir c u it . 496 3 24 - 30 8 13 3 17 2 12 3 38 11 48 8 14 5 l'» 7 12 4 - 24 ?

I l l i n o i s '

N orth ern............... 11 1 10 5 6 l i e 90 24 4 « 5 2 - 14 I 96 -

-

e a s t e r n .................. 2 9 28 25 - ' i 1 - } - • 1

S ou th ern ................ 58 35 • 35 3 1 1 1

In d ia n s:

N orth ern................ 46 37 35 2 9 7 2 6 1 4 1 3

South ern ............... 56 37

-

35 I 1 w 6 2 7 5 2 12 ’■ •

W is co nsi n:

E a ste r n .................. 58 43 41 2 15 9 4 2 1 1 1 1

W es te rn . . . . . . . . 40 33 29 2 2 7 3 2 2 7 7

E ig hth C l r c u i t . . 4 7 9 34 1 30 5 35 1 13 8 65 58 15 56 32 7 7 10 L 8 - - 1 5 .1

A rkansa s:

E a ste r n .................. 15 4 4 9 8 1

Wee te rra ................ 4 2

-

2 * 2 2 * * 2

low er

N orth ern ............... 12 9 8 ^ 1 3 2 1 - 3

8

-

S ou th ern ............... 48 37 - 36 1 1 1 6 4 1 3 • 3 •

M in neso ta .................. 265 18 9 - 16 3 26 94 34 49 11 47 32 7 6 2

-

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lenteecea) . “Defen Un ts -ho va ra ccssaitted .aider Id O .s .c . i t t i ( » of th e Ma rctdic Addict is in • ja ii -ty p a in s ti tu tio n fo l*n w<l fcy s te rn ©» prob ation , IS U .f .C . iS »l. includ ed in followe d by a ta re of prob ation on or.a or eore counts, •Excludes d is tr ic ts whsrs nunbar >• of the eeaieies tare of In dat are in ats sentences imposed on defendants convicted of act. approved Deceeber I t . 1»71. and eff e c ti v e Apr

1 * ** • * * 7 2 - * • t o t t h l "

•lr CluOss s a rt a^ as e< eera than < eun tks vh» «* are bo ba tollo we d by • tare of pro bation n

ft a ti ab il tt atj u e Ac t. 

a A s p lit sentence is a sentence an a ona-ccunt lndsx*.a«nt of •> eonthe

th es e f.e-.twe ar e eta ad eeetences In vol ving cenflnos ee t fo r t eonth e or le a l an «>* count,

ie pr saenad - « • 2S t ia aa . Tb« h ie * average eantaeoa in the D is tric t or Columbia

v io la ti o n s of tba D. C. C r ia u iC o d a .

ueu d .s tr ia e i t tha e n ti re fis c a l yea
352

Sena tor T aft. Mr. Ch air ma n, the other com ment I would like to 

make with reg ard to previous statem ent s at these he arings pe rta ins 

to the state ment of the D ep artm en t of J ustice. Whil e it may be a close 

question. I respec tfully mu st disagree with the Dep artm en t’s conclusion that the Congress lacks the co nstitutional au thor ity to legislate 

in th is area.

There can be no question th at Congres s has the con stitutional 

au thority t o enact legisla tion pe rm itting certain classes of ind ividuals 

to obtain immu nity from criminal prosecution. Tt is cle ar th at , ju st 

as the Presi dent may gr an t reprieves a nd pardo ns to pa rtic ul ar individuals, Congress may immunize a general class of ind ivi du als from 

prosecution.

For exam ple, in 1865, Congress dire cted the Presiden t to issue a 

proclam ation announcin g a pardo n fo r all des erte rs who ret urne d to 

th eir posts within 60 days.

Th is legislative po wer of immu nity has also been exercised num erou s 

times where it has been considered necessary to obtain testim ony in 

connection with criminal investigation s. Th e res ponsibility to de ter ­

mine which pers ons s hould be granted t his immu nity has been placed 

in Federal agencies, prosecutors, and congressional committees.

Congress also has the undis puted power to mo dify the terms and 

con ditions of jud icial sanctio ns imposed on those convicted of crimes. 

Th is au thor ity has been dele gated to the Federal Bo ard of Parole, 

gr an ting th at Board broad discreti on in d ete rm ining wheth er it should 

mi tig ate or alte r the form of pun ishment imposed. T wou ld refer the 

committee to title 18. sec. 4201 of the Un ite d State s Code.

The authority exercised bv the Bo ard of P arole is prob abl y th e most 

common use of out’ legislative pow er of imm unity.

The dut ies and powers of the Im mun ity Review Bo ard th at would 

be esta blished by S. 2832 and its companion measure s in the House 

wou ld pa rta ke of all thr ee of the for egoin g exam ples. The Bo ard 

wou ld be empowered to deal with all mem bers of the specified class 

of pers ons to whom the Congress has extended th is con ditiona l offer 

of immunity . The Bo ard would prom ulg ate rule s and regulation s, 

and pu rsua nt to them , con sider the me rits of each ind ividual case. 

Fu rthe r, th e Board would then offer ap prop ria te co ndition s of service 

to each appli cant, the fulf illm ent of which shall entitle th at ind ividual 

to imm unity.

Mr. Chai rman. T ask th at a copy of th e legislation T ha ve prop osed , 

S. 2832, and a legal mem oran dum prepare d by my staff s ub sta ntiatin g 

its con stitution al va lid ity be included in the he aring record.

Mr. Kastenmeier. With ou t objection, th at will be done also.

("The docume nts ref erred to follow :]

[S. 283 2, 93rt Cong., 1s t seas.]

A B IL L To prov ide pe rson s wh o un la w fu lly fa iled to re gis te r fo r th e d ra ft , or who un la w ­

fu lly avoid ed m il itary service, w ith an opport unity to ea rn im m un ity fro m pr os ec ution 

an d puni sh m en t fo r such offens es, an d f or o th er p ur po se s

Be i t enacted by the Sena te and House of Representatives of the United States

of America in Congress assembled, That this Act may be cited as "The Earn ed 

Immunity Act of 1974”.

Sec. 2. (a) Notwith standing any other provision of law. any person who. subsequent to August 4. 1964. and prior to January 27. 1973, unlawfully failed to 

register under the Military Selective Service Act or failed to comply with a 

lawful induction order for service in the Armed Forces of th e United States may 

secure immunity from prosecution and punishment for offenses described in
353

section 12 of the Milit ary Selective Service Act and other rela ted offenses if 

such person completes the period of public service herei naf ter prescribe d. To be 

eligible f or immunity unde r this Act, an applic ant sha ll—

(1 ) present himself by individual appea rance, or th at of an attor ney- atlaw or family member to the Immunity Review Board (est ablishe d pu rsua nt to section 4 (a ) of this Act) no lat er than one yea r af te r the effective 

dat e of this Act at such place and in such manner as may be required in 

regu latio ns issued pur sua nt to section 4 (a ) of th is Act;

(2 ) enter into a wr itte n agreement with the Imm unity Review Board 

under which the app lica nt agrees, in ret urn for immunity upon completion 

of the full perfo rmance of the agreement, to enli st and agree to serve two 

years in the Armed Forces of the United State s, or up to two year s in such 

alte rna tive service, public or private, contrib utin g to the nationa l health, 

safety , or welfa re as may he approved by the Immunity Review Board, including, but not limitecl to, service in Public Hea lth Service hospitals, 

VISTA, a nd the Peace Corps, except as such term may be otherw ise decreased 

by th e B oard pur sua nt to section 4; and

(3 ) agree to compensation for such period adeq uate to provide a s tan dar d 

of living reasonably comparable to th at which the same man would have 

enjoyed if he ente red the Armed Forces of the United States at the lowest 

pay grad e withou t promotion and other wise comply with s uch regulations as 

to compensation as are prom ulgate d by the Imm unity Review Board estab ­

lished pursu ant to section 4 (a ) of this Act.

(b ) During the term of any agreemen t entered into by any person pur sua nt 

to subsection ( a ) (2 ) , the United States shall withh old any adm inis trat ive or 

judicia l action to prosecute such person for any violation of any law refe rred to 

in such agreem ent, and any applica ble sta tute of limi tations shal l be tolled 

duri ng the period such agree ment is in effect.

(c ) The willful fai lur e of any person to comply with any term of an agreement enteretl into under this Act shal l constitu te grounds for term ination of 

such agreement by the United State s. Such term inat ion of the agreement shall 

void any conditional gra nt of immun ity made unde r this Act, but any evidence 

accum ulated by or subm itted to said Immunity Review Board shall not be released to any governmental agency.

Sec. 3. Any person otherw ise eligible for immunity und er thi s Act who is 

under indictm ent, who has been convicted, or who is serving a prison sentence 

aris ing out of conduct described in section 2 of this Act shall be eligible to 

ear n immunity hereu nder, including the revoca tion of any judg men t of conviction, term inati on, or suspension of any action upon any indictm ent heretofor e 

entered ; but any person su bject to the Uniform Code of Military Jus tice (ch apter 

47 of title 10, United States Code) shall not be entitled to earn immunity from 

the sentence or othe r punis hmen t imposed by an y military court under such Code.

Sec. 4. (a ) Ther e is hereby established a board which shal l be known as the 

Immu nity Review Board (he rei na fte r refe rred to as the “Boar d” ). The Board 

shall lx* empowered to execute such agreements necessary to effectuate the purposes of this Act and to determ ine the length of service, if any, required here ­

unde r to ear n immun ity in accordance with individu al circumstances. The Board 

shall be empowered to issue rules and regu latio ns to effectuate the congressional 

intent manifested here in and such rules and regulations shall be promu lgated 

in accordance wit h cha pter 5 of title 5, United States Code.

(b ) The Board shall be composed of five members appointed by the Presi dent, 

with the advice and consen t of the Senate, four of whom shall be appointed 

as follow s:

(1 ) One member shall be appointed from among indiv iduals recommended 

by the m ajor ity leader of the Senate.

(2 ) One member shall be appointed from among indiv iduals recommended 

by the Spea ker of the House of Represent atives.

(3 ) One member shall be app ointed from among indiv iduals recommended 

by the Minority Leade r of the Senate.

(4 ) One member shall be a ppointed from among indiv iduals recommended 

by the Minority Leade r of the House of Repre senta tives.

A vacancy on the Board shall he filled in the manner in which the original recommendation was made. Members shal l be appointed for the life of the Board.

(c ) Members of the Board shall each be entitled to receive an annual sala ry 

and reimbu rsemen t for expenses equal to the annu al salary and expenses payab le 

to a United States distric t cour t judge.
354

(d ) Three members of the Board shall constitu te a quorum. The Chair man of 

the Board shall be selected by the President from among members of the Board.

(e ) The Board shall have power to appoint and fix the compensation of such 

personnel as it deems advisable , with out rega rd to the provisions of titl e 5, 

United Stat es Code, governing appointments in the competitive service, and 

with out regard to the provisions of chapter 51 and subchapt er II I of chapter 53 

of such title relating to classification and General Schedule pay rates, but at 

rates not in excess of the maximum rat e for GS-18 of the General Schedule 

unde r section 5332 of such ti tle.

(f ) Each departmen t, agency, and instrum entality of the executive branc h of 

the government, including indepen dent agencies, is auth orized and directed to 

furn ish to the Board, upon request made by the Chairman , such information as 

the Board deems necessary to carry out its functions under this Act.

Sec. 5. (a ) The Board s hall designate one or more of its members to study each 

application filed with it unde r this Act and such member or members shall make 

a recommendation to the full Board. Pri or to the final decision by such Board, 

the applicants must be timely furn ishe d with a wri tten copy o f such recommendations and shall have the opportunity to submit, in accordance with regulation s 

and procedures established by the Board, any add itio nal stateme nts he deems 

appropriate. The decision of a majo rity of the Board determining the period 

needed to earn immunity shall be a final dete rmin ation not subjec t to judi cial 

review in any form, notw iths tand ing any othe r provision of law.

(b ) The Board shall deter mine the length of alte rna tive service to be included 

in any agreeme nt consumm ated in accordan ce with section 2 of t his Act when th e 

appl icant d emonstra tes to the satisfac tion of the Board th a t:

(1 ) At the time the app lica nt perfo rmed t he acts for which he now seeks 

imunity he was erroneously convinced by himself or othe rs th at he was not 

then or would not be in violation of the Military Selective Service Act by 

his action ;

(2 ) The appl icant could have qualified for classific ation as a conscientious 

objector under the decisions of the United Stat es Supreme Court prev ailing 

at the end of th e time period set fo rth in section 2 (a );

(3 ) A member of the app lican t’s imme diate family is now in desperate 

need of his personal presence for which no othe r sub stit ute could be found, 

and such need was n ot of h is own c reatio n;

(4 ) The app lican t demo nstra tes a lack of mental capac ity which might 

have rendered h is ac ts less th an wi llf ul;

(5 ) The applicant has been in the past, or is curr ently , subject to judicial 

sanctions for comm itting offenses for which he seeks im mu nity; or

(6 ) Such oth er circum stance s as are consistent with the princip les expressed herein.

(c ) Nothing in subsection (b ) of this section shall auth orize the decrease in 

term of service solely because of selective opposition to United Stat es mili tary 

actions in Southeast Asia, it being the sense of Congress th at the full terms of 

service required by section 2 (a ) shall be required to ear n immunity from prosecutio n or punis hmen t under such circumstances.

(d ) Any as signm ent of alt ern ative service pursu ant to this Act shall not inter ­

fere with the competitive job market by assigning a person in a capacity for 

which the re are other qualified appli cants not subject to this Act, nor shall 

assign ments of alte rna tive service pur sua nt to this Act be p erm itted t o preju dice 

in any manner the employment opportun ities for indiv iduals who have served 

in th e Armed Forces of the United States.

Sec. 6. This Act shall not apply in the case of any person otherwise eligible 

for immun ity if such person (1 ) is serving a prison sentence for an offense not 

described in section 2 of this Act or is scheduled to serve, immedia tely aft er 

completion of his sentence for an offense described in section 2 of this Act, a 

prison term for any other offense for which he has been convicted, or (2 ) is 

under indictment for any offense for which immun ity may not be granted under 

thi s Act.

Sec. 7. All references in thi s Act to the Military Selective Service Act shall 

be deemed to include refer ence to pri or corresponding Acts and oth er sta tut es 

of the United Stat es whose applicability depend upon the activities for which the 

appl icant seeks immun ity und er this Act from prosecution or punishment unde r 

an agreem ent by and between appl icant an d the Bo ard.
Sec. 8. The Board shall cease to exis t four yea rs af ter the effective dat e of 

this Act.

Sec. 9. The provisions of t his Act shall not be cons trued as an attem pt to affect 

in any way the power of the Pres iden t under section 2 of Article II of th e Constituti on to gra nt reprieve s and pardons for any offense refe rred to in section 2 of 

this Act.

Sec. 10. (a ) There are autho rized to be appropr iate d such sums as may be 

necessary to c arry out th e provisions of thi s Act.

(b ) The Board shall reimbu rse any departm ent or agency of the Government 

for the sala ry and othe r incide ntal expenses incurred by sucli depa rtment or 

agency in utiliz ing the services of persons assign ed to i>erform alt ern ative service 

und er this Act.

Sec. 11. If any provision of this Act, or the application of such provision to 

any jierson or circumstances , shall be held invalid, the rem aind er of this Act, 

or the application of such provisions to jiersons o r circum stances o ther than those 

as to which it is held invalid, shall no^be.aflfected thereby.

Sec. 12. This Act shall become effective 60 days af ter dat e of enactm ent.

“The Earned Immunity Act of 1974": Section-by-Section Analysis by

Senator Robert Taft, J r.

I. PURPOSE S OF TH E ACT

A. Introdu ctio n

On Jan ua ry 27, 1973, the United Stat es of America entere d upon a new era in 

its relati onship to the hostilitie s in Indochina. At th at tim e’ as a result of extensive negotiations, a series of agreem ents was entere d into which has enabled 

the United States to rep atr iat e its priso ners of war in th at area and fulfill its 

pledge to bring about a cease-fire and peace. Because of these conditions, it is 

now app ropriate to reconsider the situ atio n of those persons who have faile d to 

registe r for selective service, failed to comply with a lawfu l induction order , or 

otherw ise disre garde d the duties placed upon them witli respect to repo rting for 

military service.1

li. Those person s who have evaded prosecution for sclcotive service violations

should be gran ted immu nity upon the completion of a con trac tual obligation

for com pensatory personal service

In the 92nd Congress, I introduced Sena te Bill 3011, which addre ssed itse lf to 

this problem in a preli minary manner. As I had hoped, it provoked conside rable 

discussion and I hope the country lias benefited from the many comments, both 

pro and con, which have been made about my original bill. I am particu larl y 

gra tefu l for the thou ghtful and seriou s comments which have been made in a 

series of law review artic les.2

As a resu lt of the discussions which Sen ator Pell and myself, toge ther wi th our 

staffs, have held, we now feel th at we a re in a position to suggest to the Senate 

the “Earn ed Immunity Act of 1974" which embodies, we believe, a responsible 

resolution of the inherent conflict lietween t he demand for tota l amnesty and the 

demand for tota l punishment. We subscribe to nei the r end and lielieve our bill 

reflects that commitment.

The purpose of the legislat ion, as stated in the purpose clause, is to offer the 

opportunity to men falling within the class to earn immun ity from prosecution 

and punishmen t und er the Military Selective Service Act. As is set forth in 

Section 2 (a ) of our bill, only those persons who took unlawful actions unde r 

th at Act between August 4, 1964. and Jan ua ry 27, 1973, are eligible to seek 

immunity from prosecution and punishment. Furt herm ore, such immun ity aris es 

only upon the completion by such indivi dual of the term s of a wri tten agreement 

which such appl icant underta kes with the United States. Under th at wri tten 

agreement, the appli cant would, in ret urn for immunity upon completion of full 

performance, agree to enlis t and serve for up to 2 years in the Armed Forces 

or up to two years in altern ative service, public or priv ate, contrib utin g to the 

nationa l health, safe ty or welfare.

Footnotes a t end of article.
356

II. ANALYSIS

A. The Imm unity Review Board

1. The immunity Review Boar d shall determi ne the conditions by which each

each applicant s hall obtai n immunity

This Act contem plates the creat ion of an “Immunity Review Board,” which 

we have delibe rately modeled as an analogy to a board utiliz ed by Presiden t 

Trum an. 3

 Sections 2 (a ) and 3 of the Act set forth the general call of persons 

eligible for immunity, and the general conditions prer equisite to obtaining said 

grant. Section 4 (a ) establishes the Board, and delega tes to it the author ity to 

determi ne, on a case by case basis, the conditions which each applica nt must 

fulfill in order to gain immunity. Section 3 permits individual s currently subject 

to judi cial sanctions for violatio ns of the Selective Service Act to similarly obtain immun ity through the Board from the furth er imposition of sanctions.

2. Congress is empowered to cre ate the Immun ity Review Board and delegate

to it the au tho rity to gr ant immunity

There can be no question th at Congress has the Constitutiona l aut hor ity to 

enact legislation perm ittin g certain classes of indiv iduals to obtain immunity 

from crimin al prosecution. It is clea r tha t, jus t as the Pres iden t may gra nt reprieves and pardo ns to par tic ula r individ uals,4

 C ongress may immunize a general 

class of indiv iduals from prosecution.® For example, in 1865, Congress directed 

the Pre sident to issue a proclamation announcing a pardon for all dese rters who 

retu rned t o th eir posts within sixty days.®

This legislative power of immunity has also been exercised numero us times 

where it has been considered necessa ry to obta in testimo ny in connection with 

criminal investigations.7

 The responsibility to deter mine which persons should 

be granted thi s immunity has variously been placed in fede ral agencies, prosecutors, and Congressional committees.8

Congress also has the undisputed power to modify the term s and conditions 

of judicial sanctions imposed on those convicted of crimes. This autliort iy has 

been delegated to the Fede ral Boar d of Parole, gra nting th at Board broad discretio n in determ ining whet her it should mitigate or a lte r the form of punishment 

imposed.® The aut hor ity exercised by the Board of Paro le is probably the most 

common use of o ur legislative power of immunity.

The dutie s and powers of the Immunity Review Boa rd parta ke of all three of 

the foregoing examples. This Board is empowered to deal with all members of 

the specified class of persons to whom Congress has extende d this conditional 

offer of immunity. The Board shall promulgate rule s and regulations, and pu rsua nt to them consider the merits of each individual case. The Board shall then 

offer a ppr opr iate conditions of service to each applicant, the fulfillment of which 

shall ent itle th at ind ividu al to immunity.

B. The Boar d shall utilise the yronnds set forth in the Act in determ ining the

app ropriate length of service

Section 5 of the Act sets forth the grounds which we believe the Immun ity 

Review’ Boar d should consider in determ ining the app rop riat e length of service 

the Immunity Review Board might consider in mitigatio n is th at of a person 

required for an appl icant to gain immunity. One example of the grounds th at 

who thoug ht he would have been require d to perform mili tary service but. in 

fact, he would not have. The usefulness of the Immunity Review Board in this 

context would be th at each person would have the oppo rtunity to present his 

indivi dual case before the term s of the agreement would be fixed.

The second ground for consideration by the Immunity Review Board deals 

with the possibility th at the applicant could have secured classification as a 

conscientious objector. The Unite d States Supreme Court, thro ugh out the Indochina period, grad uall y broadened its definition of conscien tious objector. As a 

result, one w*ho applied in 1972 could have secured tha t classification, whereas 

the same individ ual, applying in 1964. could not have.10 We have no illusions 

about the difficulties involved in adm inist ering a procedure which takes into 

account changing judi cial stan dar ds. Nevertheless, it is our feeling that any person who could have qualified as a conscientious objecto r on Jan ua ry 27. 1973 

should lie perm itted to have th at fact considered in judg ing the length of time

Footnotes a t end of article.
357

he would be required to serve under his agreem ent in orde r to secure immunity 

from violation of law. It may be a ppr opriate at this point t o mention th at we do 

not believe th at it is possible to ins tru ct the Immun ity Review Board on how 

much weight to give to any one p art icu lar factor. This does not res ult from any 

desire on our pa rt to delegate our legislative function , but, instea d, it demonstr ate s our belief that the confusion and contro versy surr ound ing this ma tte r 

requires a qualified and thorough analys is. To th at end, the le gisla tion instructs 

the Immunity Review Board, in Section 4 (a ), to issue rules and regulations in 

accordance with the Adm inistrativ e Proc edure Act to effectuate these purposes.11

We would anti cipa te th at the Immunity Review Board would give serious conside ratio n to the Congressional crite ria and would establish rules based upon 

the ir experience and review.

The third ground set up by our legislation is the existence of an overwhelming 

need for the person al presence of the app lica nt with his family. We c an conceive 

of situ atio ns where such need resu lts from illness in the family where the person 

should lie released immedia tely from any fu rth er obligation to earn the immunity. 

However, it is not inconceivable th at the Immunity Review Board could afford a 

deferred con trac tual oblig ation in ap pro pria te cases.

The fourth Congressional criteriu m set fort h in our legislation deals with the 

problem of lack of mental capac ity at the time of the alleged unla wful activ ity. 

It is entirely possible th at there are groups of men of low mental capacity who, 

through peer pressure or otherwise, took action which, upon full exam ination, 

provides a basis for m itigation of the length of service.

The fifth ground provides for those persons who a re presently being punishe d 

for Selective Service Act offenses. Such persons who have already served time 

in prisons or periods of probation and/o r parole may apply to the Board for immunity from fu rth er such treatme nt. The Board should tak e thi s pa st punishment into account when fashio ning the terms of agreem ents in these cases.

Also, it is deliberately left open to the Im munity Review Board to develop other 

grounds for considera tion as are consiste nt with the principles embodied in the 

Act.

Finally, we believe it is appropriate to include a crit eriu m which, when applicable, conclusively forbids reduction of the maximum term of service. Those 

individual s whose sole motivatin g f acto rs was selective opi>osition to the Vietnam 

War, while not disqualified from securing immunity, cann ot use th at fac tor as 

the basis for any reduc tion in the term, since th at has never been a basis for a 

similar action by any of the dra ft regulation s.13

C. The actio ns of the Imm unity Review Board shal l not be judiciall y

reviewable

The Act explicitly provides th at the decisions of the Imm unity Review Board 

as to term of service proposed shall be final and not subje ct to judicia l review. 

This inv estiture of unreviewable power, under analy sis, is neither arbit rary nor 

unw arra nted .

The Board is a Congressional mechanism to insure th at a person entitled to 

immunity can gain it through conditions app rop riat e to his individual case. The 

Act sets fort h relev ant cri ter ia for this determin ation , and confides tot al discretion to the Board in applyin g those cri ter ia to the myria d of relevant facts. 

This exercis e of discretion, as delegated to the Board by Congress, should not be 

the subject of judi cial inquiry . It is analogou s to the power of the Execu tive Departm ent. which is charge d with the faithf ul execution of the law, to determ ine 

whet her o r not to inst itu te prosecution in a par tic ula r case. The leading opinion is 

th at wri tten by now Chief Jus tice B erger in the case o f Newman v. United State s,

382 F.2d 479 (C.A. D.C. 196 7). In the Newman case the Unite d Sta tes Attorney 

determined not to accept a plea from one of two co-defendants. The argu men t 

was made that this conduct denied due process and equal protection. Mr. J ust ice 

Berger held th at this was a ma tter of first impression and th at it had to be 

resolved on the basis of the constitu tion al division of power. As Chief Jus tice 

Berger state d,

“Few subje cts are less adapted to judicia l review than the exercis e . . . of 

. . . discre tion in deciding when and whethe r to ins titute criminal proceedings, 

or wh at precise charge should be made, or whe ther to dismiss a proceedin g once 

broug ht.” (38 2 F.2d at p. 48 0).

Footnotes at end of article.
The Chief Justic e, speaking for a unanimous panel, concluded th at “no court 

has any jurisdic tion to inquire into or review his decision.” Id. at 482. In an 

ear lie r decision, the Cou rt of Appeals for the Fifth Circu it, speak ing en banc, held th a t:

“The court s are not to interf ere with the free exerci se of the discretion ary 

powers of the Attorn eys of the United States in the ir control over, criminal 

prosecutions. United Sta tes v. Cox, 342 F.2d 167, 171 (5t h Ci r.), ccrt. den., 85 S.Ct., 1767 (19 65 ).

The powers to he exercised by the Board are dramatica lly simi lar to th at of 

federal prosecuto rs. The fact ors to he considered in each case are so numerous 

and subtl e as not to be susceptible of judi cial eval uatio n and weighing. The 

analogy shown here leads inescapably to tlie conclusion tha t judic ial review of 

these decisions be precluded.

A second example of unreviewable discretion also wa rra nts attention. The 

Fede ral Board of Parole provides a stri kin g model of the fut ure task s of the 

Immunity Review Board. Simi lar facto rs must be weighed by each board in 

reaching a decision. The cou rts have long since recognized Congress granted 

the Board of Paro le “absolu te discretio n” in the gra nt or denial of parole.13 In the f ace of this discretion, judic ial review is necessarily precluded.

In the absence of evidence of flagra nt, unw arra nted , or unau thori zed action 

by the Board, it is not the functi on of the courts to review such proceedings. 

Scarpa ’* v. U.S. Board of Parole, 477 F.2d a t 283.

The Scarpa cou rt enunciated the principle behind thi s viewp oin t: the government may, in its unrev iewab le discretion, confer a benefit on an individual or 

refus e to change an indiv idual 's sta tus to the bet te r; on the oth er hand, where a 

cognizable benefit is with draw n, the cour ts will examine th at action to insure 

the presence of due process.13 Th e Immun ity Board of Review will c onfer a benefit, a reduction in service, when it finds it appr opriate. The Board need not be 

reviewed a s to the merits of its decisions.

D. Limitatio ns of the scope of the Act

Fi rs t of all, it does not apply to anyone servin g a prison sentence for crimes 

unrelate d to selective service violation s. Furt herm ore, it is not applic able to 

those persons who have deserted from the United States Armed Forces. We 

believe th at the problems of these latte r individual s are so inextricably intertwined with the considerations of mili tary discipline th at a comprehensive solution for th at catego ry of persons is beyond the prope r scope of this legislatio n.

I I I . CO NC LU SIO N

The legislative power of immunity has been little exercised in the conte xt of 

mil itar y service. The reasons for this prio r dormancy are varied, but sometimes readily app arent—as where action had been ta ken by th e Executiv e branch, 

in each of the country ’s previous conflicts so as to make Congressional action 

unnecessary.

Moreover, there is some evidence tha t an informal tyi»e of “amne sty” has been 

administered on a haphazard basis throu ghout the United States by t he variou s 

United Stat es Attorneys. It is widely believed th at a lesser sentence may be 

secured by prosecution in one pa rt of the country ; 14 and it is well known th at the Jus tice Dep artm ent has been less than diligen t in pursuing the violatio ns of the 

various acts involved. An imp orta nt advantage to havin g an Immun ity Review 

Board would lie tha t of un ifo rm ity ; the same considerations would be applicab le 

to a ll persons who sought immunity from prosecution and, although no one would 

be compelled to seek immunity, it is anti cipated by us tha t the existence of an 

alt ern ative uniform procedure would cut down or elim inate the apparen tly discrim inato ry practices which are now in existence throughou t the country.

We fully recognize the limitations inherent in our legislation, and we hope to 

provoke a furth er discussion of this ma tter with the goal th at this acrimonious 

problem may be resolved in a m anne r which would l>enefit not only the indi viduals 

involved but the country as a whole. We believe th at the time is ripe to move 

on thi s issue and tha t th e Congress of tlie United Stat es should not deny itse lf 

the opportunity to consider fully the very serious questio ns raised by this 

matter.

Footnotes a t end of article.
FOOTNOTES

1 T he ex ac t nu m be r of such pe rson s is in di sp ut e. Ou r staf f an al ys is, as of th e su mmer 

of 197 3, es tim at ed th a t at le as t 18,509 in div id ua ls were ab ro ad becaus e of re si st an ce to th e 

dra ft . As of Ju lv 23, 1973, th e D ep ar tm en t of Ju st ic e re po rted th a t an oth er 1,351 pe rson s 

we re in di ct ed an d aw ai ting tr ia l an d 300 me n were im prison ed . The nu mbe r of pe rson s 

liv in g “un de rg ro un d” in th e United S ta te s is ve ry difficult to as ce rt ain , but th e mos t 

co ns er va tiv e es tim at es place th a t fig ure a t se ve ra l th ou sa nd . In sum , th e nu m be r of pe rson s 

w ithi n th e sco pe of th is l eg isla tion qu ite prob ab ly exc eed s 30,000 .

2

 T he first bill I in trod uc ed on December 14, 197 1, w as S. 301 1. I t was re fe rr ed to th e 

Co mmittee on th e Ju di ci ar y. The Su b-co mmittee on A dm in is tr at iv e Pra ct ic e an d P ro ­

ce du re he ld hea ring s on “S elec tiv e Se rvice Sy stem Pro ce du re s an d A dm in is tr at iv e Pos si ­

bilitie s fo r Am ne sty” on Feb ru ar y 28, 29, an d M arch 1, 197 2 (h er ein aft er re fe rr ed to as 

“H ea ri ngs” ). Th e H ea ring s ha ve bee n pri nte d by th e U ni te d S ta te s Gov ernm en t P ri n ti n g 

Office an d co mprise 671 pa ges w ith co ns iderab le am ou nt of so urce m at er ia ls in co rp or at ed 

th er ei n. In ad di tion , S. 3011 ha s been th e su bj ec t of disc us sio n in a nu mbe r of la w rev iew 

ar ti cl es w ri tten on th e topic. The y in clud e th e fo llo w in g: Jo nes an d Raish , “A merica n 

D es er te rs an d D ra ft E vaders : Ex ile , Punis hm en t or Am ne st y? ”, 13 H ar var d In te rn a ­

tional La w Jo u rn al 88 (W in te r 1972) (p ri nte d ver ba tim in th e H ea ri ng s a t pa ge s 450- 

478) ; Ro th an d Rothm an , “T he A ut ho ri ty of a Co ng ress to G ra nt Amne sty,” Yal e Le gisla tive Se rvices (197 2) (p ri nte d a t pa ges 49 0- 50 1 of th e H ea ri ngs ) ; Co mm ent, “A H is to ry 

an d Disc us sio n of Amne sty,” 4 Co lum bia Hum an R ig ht s Law’ Re vie w 529 (F all 1972) ; 

Co mm ent, “D ra ft Res isters’ in E xile: Pro sp ec ts an d Ri sk s of R etu rn ,” 7 Co lum bia Jo urn al 

of La w an d Socia l Pr ob lems 1 (W in te r 19 71 ) ; Lu sk y, “C on gr es sion al Amne sty fo r W ar 

Res isters : Po lic y Con si de ra tio ns an d C onst it utional Pro bl em s,” 25 V an de rb ilt La w Review 

525 (A pr il 1972) : Mi gli ore, “ A m ne st y: An H is to ri ca l Ju st if ic ation fo r it s Con tinu in g Viability,” 12 Jo urn al of Fa m ily La w 63 (1 972 -7 3) .

3

 U nd er A rtic le II, Se ction 2, Claus e 1, th e Pre si dent has th e po we r to “. . . gra n t 

re pr ieve s an d pa rd ons fo r offens es again st th e U ni te d Sta te s. . . . T he re ha ve been 

nu merou s ex am ples of th e us e of th is powe r ov er th e ye ar s an d th ey ar e disc us se d th o rou gh ly in th e va riou s law review ar ticl es . Pre si den t Tru m an , be fore ex er ci sing th a t 

powe r, cr ea te d an “A mne sty B oa rd ” com posed of th re e me mb ers wh o ex am ined an d 

co ns idere d th e ca se s of pe rson s who ha d al re ad y been co nv icted of vi ol at io ns of th e 

Se lec tiv e Se rvice La w du ri ng W orld W ar II . Exe cu tive Ord er 981 4, 11 F ed er al Reg iste r 

14645 (Decem ber 23, 19 46 ). Th e Am nesty Boa rd wa s com posed of Owe n Rob erts, W ill is 

Sm ith , an d Ja m es F. O’Neil, an d th ey su bm itte d th eir re port to th e Pre si den t ex ac tly one 

yea r la te r, Decem ber 23, 1947 . T hat re port is pr in te d ve rb at im a t pa ge s 48 5- 48 9 of th e 

Hea ring s. As is st ate d th er ei n, aft er review ing 15,80 5 co nv ictio ns , th e Bo ard rec om mended 

th a t 1.523 pe rson s be gra nte d ex ec utive c lem ency.

I

 U.S. Co nst. Art. II , $ 2 ; E x pa rte Ga rla nd , 71 U.S. (4 W al l) 333 , 380 (1 86 6) . Also see 

H um pe rt, Th e Par do ning Po wer of th e Pre si de nt 40 (1 94 1) .

0

 In Bro wn v. W al ke r, th e United Sta te s Su prem e Cou rt ackn ow ledg ed th a t th e powe r 

of re pr ie ve an d pa rd on ex pr es sly gra nt ed th e Pre si den t in no wa y aff ected th e ge ne ra l 

auth ori ty re sidi ng in th e le gi slat iv e br an ch . 161 U.S . 591 , 40 L. Ed . 819 , 822 (1 89 6) . See 

also th e La ur g, 114 U.S. 411 (1 88 4) .

“ Ac t of M arch 3. 1865. 13 Sta t. 19 0-91 . F or a si m ilar ex ercise of le gi sl at iv e pa rd on , see 

Act of J uly 17. 186 2, 12 Sta t. 592.

? E. g., 27 S ta t. 443 (1 89 3) . 49 U.S.C.A. 5 46 (1 96 9) , const ituti onali ty up he ld, Bro wn v.

W alke r, su pra : 32 S ta t. 904 (1 90 3) , 15 U.S.C.A . 5 32. 49 U.S.C.A . 5 47 (1 96 9) , co nst ituti onal ity up held, Hale v. Hen ke l, 201 U.S . 43 (1 90 6) . Su ch st a tu te s ha ve “b eco me p a rt of 

our co nst ituti onal fn br ic .” Ul lm an v. United Sta te s, 350 U.S . 422 , 438 (1 95 6) . Se e also

Co mm ent, Th e Fe deral W itnes s Im m unit y A ct s in The or y an d Pra ctice: Tr ea ding Th e

C on st itution al Tig ht ro pe , 72 Ya le L.J., 156 8 (1 96 3) .

8

 See. fo r exam ple, th e “ us e” im m un ity pr ov isio ns of th e Or ga nize d Cr im e Con trol Ac t 

of 197 0. 18 U.S.C.A . 5 60 01 -0 5 (S up p. 19 73 ). See also K ast ig ar v. Uni ted Sta te s, 406 U.S. 

441 (1 97 2) , up ho ld in g th es e prov ision s.

0 18 U.S.C.A . 5 4201 et seq. (1 96 9) . "B y th e la ng ua ge of [t h is sta tu te ], th e B oa rd of 

Par ole is giv en ab so lu te di sc re tion in m att ers of pa ro le .” Sc ar pa v. U.S . Bo ar d of Pa role,

477 F. 2d 278 . 280 (5 th Cir. 1973) ; accord. H ys er v. Re ed, 318 F. 2d 225 (D.C. Cir. 196 3) 

(p er B erge r, J .) .

10 Com pare, Oeo rge v. United Sta te s, 196 F. 2d 445 (9 th C ir .) , cert, den., 344 U.S . 843 

(1 95 2) , w it h Uni ted Sta te s v. Seeg ar , 380 U.S. 163 (1 96 5) an d W el sh v. United Sta te s, 398 

U.S. 333 (1 97 0) .

I I I n issu in g ru les, th e Boa rd is directed to ut iliz e th e pr oc ed ur es se t fo rt h in 5 U.S.C.A. 

5 551 et se q .; ho we ver, th e Boa rd is in no wa y su bj ec t to th e oth er pr ov isio ns of th e 

A dm in is tr at iv e Pro ce du re A ct.

12 T hi s co nc lusion is in acco rd with th e Su prem e C ourt ’s in te rp re ta ti o n of th e cons cien ­

tio us ob jector clau se in O ilet te v. United Sta te s, 401 U.S. 437 (1 97 1) .

11 S ca rp a v. U.S. Bo ard of Pa role. 477 F. 2d 278 . 280 (5 th Cir . 1973 ) : accord., H ys er v.

Reed, 318 F. 2d 225 (D.C . Cir. 19 63 ).

u

 A cc or d, Mencnchio v. Os wa ld, 43 0 F. 2d 403 , 40 8- 09 (2d (Mr. 19 70 ), ce rt, den., 400 

U.S. 1023 (1 97 1) : Dorad o v. Ker r, 454 F. 2d 892 (9 th Cir . 19 72 ).

13477 F. 2d 278 , 282. Co mp are, M or ris se y v. Bre wer , 408 U.S . 471 (197 2) (rev oc at io n of 

pa ro le ).

18 I n fiscal yea r 197 2 ce rt ai n d is tr ic t co urt s re po rted wi de ly dis para te re s u lts :

M in ne so ta— 94 co nv icted : 47 su bs eq ue ntly im prison ed (5 0. 0% ) :

W as hi ng to n— 65 co nv ict ed : 31 su bs eq ue ntly im prison ed (4 7. 7% ) :

C al if orn ia (C en t. D is t. )— 168 conv icted : 51 su bs eq ue nt ly im prison ed (3 0. 4% ) ;

Cal ifor ni a (N or. D is t. )— 30 5 co nv ict ed : 55 su bs eq ue nt ly im prison ed (1 8. 0% ) ;

Michigan -—90 co nv icted : 5 su bs eq ue ntly Im priso ned (5 .5 % ).

So urce of data : 197 3 Se mi-a nn ua l Rep or t of th e D ir ec to r of th e A dm in is tr at iv e Office of 

th e U ni te d S ta te s Cou rts. Fi g. 24.

I t ha s of te n bee n ru mored am on g d ra ft re si st or gr ou ps th a t N ort her n C al ifor ni a was 

th e mos t le nie nt d is tr ic t. Th e abo ve fig ures ap pe nr to di sp ut e th is. Ho we ve r, th e di sp ari ty 

between belie f an d ac tu al st ati sti cs sim ply un de rsco re s th e ne ed fo r a un ifor m co or di na ted 

ap pr oa ch .

Also see New sw ee k, O ct. 1, 197 3, “ A K ind of Amne sty” , p. 34.
360

Senator Taft. Mr. Chairman, that concludes my statement and I 

will be happy to respond to any questions the subcommittee may have.

[Senator Ta ft’s statement follows:]

Stateme nt of Senator R obert T af t. .Tr.

Mr. Chairman and members of the subcommittee, I would like to commend you 

for holding these h earings and thank you for p erm ittin g me to appear before the 

subcommittee this morning.

The application of our Nation's selective service laws during the Vietnam war 

confirmed a great number of the apprehensions I had regarding the desirability 

of the continuation of compulsory military service. As members of this subcommittee are no doubt aware, a great number of inequities develoi>ed regarding the 

application of these laws over the last ten years, particu larly with regard to 

conscientious objection. Not only were legal stan dards changed in this area, but 

additionally there were significant variances in the way the milita ry -Selective 

Service System implemented throughout the country. Unfortunately , even with 

negotiation of the Paris peace agreement on January 27, 1973, and the successful 

tran sition to the concept of an All-Volunteer Army, many inequities and problems 

remain with regard to individuals who refused induction into the Armed Forces, 

or decided to unilaterally with draw from service after induction. To date, however, almost with unanimity, any discussion directed toward consideration of 

the plight of such individuals becomes entangled in emotional debate as to the 

propriety of United States military involvement in Soutlieast Asia.

I submit to this subcommittee tha t the issue to be considered is not whether 

draft resisters were righ t or wrong, nor whether the United States should have 

become involved in the Vietnam conflict. Enough bittern ess has already been 

generated in the discussion of these issues. Rather, consideratio n should be given 

to the issue of establishm ent of a practic al method whereby an estim ated 30,000 

individuals could return to this country or cease to be fugitives without cre ating 

furth er divisions among Americans. Understandably, there will be controversy 

generated by groups with inflexible positions on this issue, no m atter what policy 

is pursued, but. I am of the opinion th at a sizeable majority of citizens of this 

country will su pport constructive action by the Congress and /or the President on 

this subject. Particulaly, those of us who are elected officials, I believe, m ust be 

responsive to problems that have been created in this are a—these problems simply w ill not disappear, no ma tter how much many of our colleagues in the Congrss or officials in the executive branch may wish they would. In this regard, I 

would like to quote from a letter that Melvin Laird sent to Commander Ray R. 

Soden, Veterans of Foreign Wars of the United iStates, rega rding the question 

of a mne sty :

“Throu ghout my career of public service, I have learned to avoid absolute, 

dogmatic positions. Neith er the political system nor the judicial system of the 

United States works on “blan ket” and arbit rary approaches. Both recognize the 

vita l roles of (1) circum stances and (2) motivation in determ ining political or 

judicial solutions to our problems. As I have stated, we pride ourselves on adm inistering justice with mercy and understanding.”

Mr. Lair d goes on to state, and I quote :

“With respect to the question of a “blanket” or “general” amnesty, let me 

emphasize that I am now and alwa ys have been opposed to a sweeping general 

gra nt of amnesty. However, there are individual cases where the circumstances 

require th at justice provide for what some have termed “conditional amnesty.” 

I do not like this term and only use it for lack of a better description of an 

equitable approach to this difficult problem. It is my view that circum stance 

and motivation on a case-by-case basis, under our concept of justice, must be 

taken into account today when dealing with violators of our selective service 

laws. It is noteworthy that only a small percentage of these men have thus far 

been prosecuted by the Depa rtment of Justice, and in these cases widely differing pena lties have been assigned to individuals varying by jurisdic tion.”

Mr. Chairman, I would ask to have this correspondence that Mr. Laird has 

share d with me printed in its entirety in the hearing record as an appendix to 

my statement.

Mr. Chairman and members of the subcommittee, not only do I commend Mr. 

Laird’s approach to this problem, but I also endorse the concept of alternativ e 

service that is suggested in his correspondence. I have thought the concept of
361

altern ative service to be the most equita ble solution to this issue for some time 

and on December 14, 1971, introd uced legislation in the Senat e th at would have 

established such an approach. While no legislative action was tak en on my proI>osal during the 92nd Congress, my princ ipal objective was achiev ed as considerable natio nal discussion was generated on this issue. I believe such a 

discussion was helpful for the coun try as it focused the atte ntion of many 

Americans on the prac tical questions that are involved when a natio n makes a 

decision to require its young men to serve in a war.

I have again thi s Congress introd uced legislation th at would esta blish the 

concept of alte rna tive service for individu als who refused induction in the Armed 

Services. Joining me in the intro duction of thi s legislation, the Earn ed Immu nity 

Act of 1974, S. 2832, was Senator Pell of Rhode Islan d with cosponsorship of 

Senat ors Packwood, Biden, Haskell and Metcalf. I note th at elements of this 

proposal and the one I subm itted in the 92nd Congress are con tained in legislation 

pending before this subcommittee, including an almos t identical approach, H.R. 

13001, introd uced by Congressm an Robison of New York. I would note the alternativ e service proposals of Congressman Koch and Congressman McCloskey. 

(H.R. 674, Koch and H.R. 10979 and H.R. 10980, McCloskey.)

S. 2832, similar to proposals before this committee, would authorize indiv iduals 

who violated the selective service laws between August 4, 1964, the date of the 

Gulf of Tonkin incident, and Janu ary 27, 1973, the date of the Pa ris peace agreement, to apply for immunity from prosecution and punishme nt up to one year 

after the effective dat e of the act. Such appli catio n would be subm itted to an 

Immunity Review Board pat tern ed af te r the procedure implemented by P resident 

Trum an in 1946 after World Wa r II. This Boar d would be composed of five 

members appointed by the Pres iden t with the advice and consent of the Senate. 

Of the five members, four would be n omina ted by the Pres iden t from individual s 

recommended by th e m ajority and minor ity leade rs o f t he Senate an d the Speaker 

and minor ity lead er of the House. The dur atio n of the Board would be for four 

years with th e P resident ap point ing the chairman.

The Board would be auth orized to only review violatio ns of the Military 

Selective Service Act and would be empowered to gra nt immunity upon the 

completion of altern ative service of up to two years in the Armed Forces or in 

public or privat e service contributin g to the national health, safe ty or welfare. 

Indiv iduals serving prison sentences for crimes unre late d to selective service 

violatio ns would not be eligible for such immunity, nor would indiv idua ls under 

indic tmen t for any offense un rela ted to the act. Examp les of c ontem plated public 

service would be two year s in the Peace Corps or VISTA with compensation at 

a level to provide a standard of living compa rable to service in the Armed 

Forces at the lowest pay grade. The Board would not be perm itted to denjT immunity to any qualified indiv idual and would be given discre tion as to the 

length of alt ern ative service, not to exceed the two year s require d. Each individual case would be reviewed on its own merits with the Board specifically 

authorize d to consider miti gati ng circu mstances with rega rd to the service 

requirement.

Fir st, the Board could consider inaccurate inte rpr eta tion of the act by an 

indivi dual at the time he committed the violation . Second, the Board could consider circum stance s where the applica nt could have qualified for classification 

as a conscientious objecto r unde r the decisions of the United States Supreme 

Court prev ailin g on Ja nu ary 2 7,19 73.

To illu strate, the Supreme Court dur ing the Indoch ina period grad ually 

broadened its definition of conscientious objections with the case of Welsh v. 

United States, 398 U.S. 333, decided on Jun e 15, 1970, introducin g a significant 

change in the law. Before that decision, indiv iduals seeking conscientious objector sta tus had to raise the ir objection in relation to their belief in a Supreme 

Being. The Supreme Court in Welsh ruled th at a belief in a Supreme Being was 

no longer require d, and th at other deep felt i>ersonal views could suffice. Obvious 

inequities became evident. For example, in one family, two brot hers might have 

held the same deep felt opposition to war not based on religiou s convictions. The 

elder son, who l)ecame draft eligible before the Welsh decision, could not have 

been classified as a conscientious objec tor and might have gone to prison or into 

exile. His younge r broth er, holding exactly the same views on war, could have 

become a conscientious objector. He would not be a criminal, and could be lawfully serving h is co untry in alte rna tive service.

Third , the Board could consider circumstances where an app lica nt’s immediate family was in desp erate need of his perso nal presence for which no oth er 

sub stitute could be found, and such need was not of the app lica nt’s own making.

31-658 0 - 7 4 - 2 5
362

Fourth, consideration by the Board could be given to the fac t th at the applican t demonstra tes a lack of ment al capac ity which might have rendered his acts 

less tha n willful. It is entirely possible th at the re are groups of men of low 

mental capacity who, through peer pressure or otherwise, took action which, 

upon full examination, provides a basis for miti gati on of the length of service.

Fif th, the Board could consider wheth er the appl icant has in the past, or is 

curr ently , subject to judi cial sanctions for committing offenses for which he 

seeks immunity.

Sixth, the Board would be empowered to consider such other circum stances as 

would be consis tent with these I have alrea dy enume rated. My proposal, however, 

specifically fo rbids reduc tion of the maximum term of service t o those individuals 

whose sole motivatin g fac tor was selective opposition to the Vietnam war. Such 

individuals, w hile n ot disqualified from se curing immunity, canno t use t ha t facto r 

as the basis for any reduction in the term, since it has never been a basis for a 

similar action by any of the dr af t regulations. On this point I would refe r the 

subcommittee to Gillette v. United States, 401 U.S. 437, decided in 1971.

As I have outlined, the concept of altern ativ e service th at I have proposed 

specifically excludes deserters. I recognize the app aren t inequities th at this 

approach may raise on a curso ry examination of this issue. Upon prot ract ed 

reflection, however, I have concluded th at it would be unwise to include such 

indiv iduals in the altern ativ e service concept, as dese rters are covered by an 

entirely different legal system that is inextricably inte rtwi ned with considerations of mili tary descipline. Indi vidu als who deserted from mil itary service, pa rticu larly those who left functioning combat units , had a fa r more disru ptive 

impact on our Nati on’s defense i>osture than indiv iduals who refused induction. 

Sta tist ics broug ht to my atte ntio n by the Departm ent of Defense suggest that 

less tha n five percent of the individual s who deserted dur ing the Vietnam conflict did so for ideological opposition to the war and as to indiv iduals in this 

category gre at flexibility was administered to constr uctiv ely resolve individual 

cases th at is not to suggest that perha ps the subcommittee should not fur the r 

examine this area as there may be inequ ities that have not been satis fact oril y 

resolved.

The othe r broad objection per tain s to the concept of alt ern ative service itself. 

Why not a blanket amn esty ? Such an approach in my opinion is too broad and 

would include individual s who did not have deep moral convictio ns aga inst war. 

Form er T rum an Board member J ame s F. O’Neil’s stat eme nt to this subcommittee 

makes this point very succinctly. I would caution , however, th at the Trum an 

Board procedures certa inly could be improved upon. Fu rth er, as I stat ed at the 

outset of my statement, I do not believe this issue should, or can, be resolved on 

the question as to correctness of United Stat es mil itar y involvement in South ­

east. Asia. The mili tary Selective Service Act was in effect at the time of the 

Vietnam conflict and th at fac t cannot be ignored, no ma tte r how stron g one 

may object to the premises upon which it is based. The proper role I would 

suggest for any individual who opposes a law is to use every legiti mate peaceful 

means a t his disposal to change it and, if his e fforts are unsuccessful, be prepared 

to make a choice from the altern ativ es that he is then faced with. To simply 

sta te th at any individ ual is above the law because of deep-felt views of principle, 

is to suggest a society with out any order or meaning. The concept of altern ativ e 

service is not punitive. It is offered a positive context, for example, service in 

VISTA or the Peace Corps. I would emphasize th at no individual would be forced 

to make such a commitment to serve, it would be an ind ivid ual’s own choice. 

Such service would be cons isten t with the legal obligatio n th at resiste rs are 

faced with and, in essence, would simply provide another alte rna tive to permit 

th at ob ligation to be fulfilled.

Mr. Chairm an, before concluding my statement, I would like briefly to comment to two issues which h ave been raised in the hearings to date.

Fir st, I noted w’ith inte res t testim ony tha t rejected not only unconditional 

amnesty, but also the concept of altern ativ e service. The general premise of this 

testimony, as I understand it, is that individual s who have violated the mil itar y 

Selective Service Act or deserted mus t be requ ired to pay a crim inal i>enalty for 

violat ing the law. I would sugges t t o this subcomm ittee th at a large percenta ge 

of such individuals have in the pas t been offered an alt ern ative other tha n a 

criminal penalty. Many des erte rs have been perm itted to rejoin the ir units with 

only a reprimand. Res isters have not been prosecuted if they agree to enlis t in 

the Armed Services. These approaches had been the i>olicy of the Jus tice and
363

Defense Depa rtments before the expiration of the dr aft. I quote from a response 

I received in November of las t yea r from Ass istant Attorney General Pete rson 

rega rding t his subjec t:

"It was our policy to allow such a man, in the absence of agg rav atin g circu mstances, bo remove Ills delinquency under the Military Selective Service Act by 

subm itting to induction processing and to auth oriz e the dism issal of his indictment upon successful completion of induction. Th at policy was term inated on 

July 1, 1973, because of the exp iration of the induc tion aut hor ity on th at date.

In our view, that policy was beneficial to all concerned for the reason th at the 

inducte e would render valuable service to ou r co untry for a period of twenty-four 

months and lie would have th e sat isfa ctio n of havin g fulfilled his service obligations. On the othe r hand, men convicted and sentenced for violation of the Act 

perfor med no worthwhile service of any kind and, in most instances, were per ­

mitt ed to retu rn to the ir normal way of life in a considerably sho rte r period of 

time. Dor example, in fiscal year 1972, th e average term of impris onment imposed 

for dr af t law violatio ns was 36.2 mo nth s; however, the average act ual time 

served in custody was 9.1 months. Moreover 1,178 of the 1,643 defe ndan ts convicted were placed on probation by the courts, wit h the res ult th at less t ha n onetliird of the men convicted received a prison sentence.

Subsequent to Jul y 1, 1973, i t was our policy to inform a d ra ft delinquent prio r 

to indictm ent th at he was in violation of the law and prose cutive action aga ins t 

him was c ontem plated unless he were w illing to correct his delinquency by en listing in the United States Army. In th at event, consideration would t hen be given 

to permitting him to purge his violation with out being subjected to crim inal 

changes. Tlia t policy has been abandoned, however, because the Dep artm ent of 

Defense advised us tliat it would not accept for enlistment men who are in violation of the dr af t law, whethe r unde r indictment or not. We were recentl y 

informed th at the enlistmen t policy was reconsidered, at our reque st, within the 

Departm ent of Defense and by the Secre tary of Defense, but it was concluded 

th at it Khould continue in effect. Since tliat decision could place a sub sta ntial 

prosecutive burden on United Stat es Attorneys throug hou t the country, as they 

no longer hav e a viable alt ern ative to offer the defe ndants other than prosecution, 

we ar e again askin g th e Departm ent of Defense to reconsider this mat ter.

Unfortun ately , as Mr. Peters on stat es, the Dep artm ent of Defense has refused 

to continue such a policy, but the point is th at altern ativ es other tha n criminal 

sanctions have been a pa rt of this country ’s policy and the concept of alte rna tive 

service is not a new radical approach, especially when supplemented with the 

conscientious objection altern ativ es alre ady contained in the law. In the general 

context of Jus tice Departm ent policy on this issue, it is also interestin g to note 

the las t par agr aph I quoted of Mr. Pete rson ’s let ter pertain ing to the burde n of 

proscuting dr af t resiste rs throughout the country. Sta tist ics from the 1973 semiannual repo rt of the Director of the Adm inist rativ e Office of the United States 

Courts would indi cate t ha t this burden on the Jus tice Dep artm ent has been tra ns ­

lated into a very uneven approach of prosecution with the determin ing fatc or 

quite often being the geographical region of the coun try th at an indiv idual is 

from as to the dispositio n of the case. For example, duri ng F.Y. 72 only 1 of 

Ohio’s 218 defendan ts in selective service cases served a prison sentence compared to Minnesota with 94 convictions (47 of which resulted in imprisonm ent) 

out of a tot al of 141 d efendants.

Mr. Chairman, I ask th at the correspon dence I have had with the Departm ent 

of Jus tice and Defense regarding Government policy towa rd dr af t resi ster s be 

printed in the hearing record as an appen dix to my state men t. I also ask that 

a chart from the 1973 semi-an nual repo rt of the Dire ctor of the Adm inist rativ e 

Office of the United States Courts showing the disposition of defe ndants charged 

with Selective Service Act violations be prin ted in the hea ring record as an 

appendix to my statem ent.

The oth er comment I would like to make with rega rd to previous stat eme nts 

at these hearings per tain s to the stat ement of the Departm ent of Justice. While 

it may be a close question, I respectfully must disag ree with the Dep artm ent’s 

conclusion th at the Congress lacks the cons titution al authority to legislate in 

this area.

The re can be no question th at Congress has the constitu tion al autho rity to 

enact legislation permitting certain classes of individu als to obta in immun ity 

from crim inal prosecution. It is clea r that, just as the Preside nt may gra nt 

reprieves and pardo ns to partic ula r individual s, Congress may immunize a gen-
364

era l class of individual s from prosecution. For example, in 1865, Congres directed 

the Pres iden t to issue a procla matio n announc ing a jiardon for all dese rters who 

retu rned to the ir posts within sixty days.

This legislat ive power of immunity has also been exercis ed numerous times 

where it has been considered necessary to obtain testimony in connection with 

criminal investigations. The responsibility to determ ine which persons should be 

gran ted this immunity li as variou sly been placed in Fed eral agencies, prosecutors, 

and congressional committees.

Congress also has the undisputed power to modify the term s and conditions 

of judi cial sanctions imposed on those convicted of crimes. This author ity has 

been delegated to the Federal Board of Parole, gra nting th at Board broad discretio n in determ ining wheth er it should mitigate or alt er the form of punishment imposed. I would ref er the committee to title 18, sec. 4201 of the United 

States Code, “ by language of (th is st at ut e) , the Board of Parole is given absolute 

discr etion in matters of parole.” The author ity exercised by th e Board of Parole 

is probably the most common use of our legisla tive power of immunity.

The duties and powers of the Immunity Review Board th at would be esta blished by S. 2832 and its companion measures in the House would par tak e of all 

three of the foregoing examples. This Board would be empowered to deal with 

all members of the specified class of persons to whom Congress has extended 

this conditional offer of immunity. The Board would prom ulgate rules and 

regula tions, and pu rsu ant to them, consider the merits of each individual case. 

Fu rth er, the Board would then offer appr opria tion conditions of service to each 

applicant, the fulfillment of which shall entitle th at indiv idual to immunity.

Mr. Chairma n, I ask th at a copy of the legislation I have proposed, S. 2832, 

and a legal memorandum prep ared by my staff sub sta ntiating its constituti onal 

valid ity be included in the hearing record as an appendix to my statement.

Th at concludes my statem ent and I will be h appy to respond to any question s 

the subcommittee may have.

Mr. Kastenmeier. Thank yon, Senator Taft.

T would like to commend you on a most excellent statement and 

proposal. Although T know that your proposal falls short of what 

those who seek unconditional amnesty would ask. nonetheless it does 

constitute a well thought out and a constructive step and I congratulate you for it.

T would like to discuss just one or two questions. You have selected 

quite carefully, apparently, the word “immunity” rath er than “amnesty” or some other term. And while you did indicate in your statement that you did not particularly like the term “amnesty” or at least 

“conditional amnesty.” I am wondering whether it was for that reason 

or because, as a constitutional basis, “immunity” can be better provided for by the Congress than something which may be closer to a 

pardon ?

In other words, what was the motivating factor for selecting the 

word “immunity” in your legislation ?

Senator Taft. Both of those considerations were in our minds when 

we decided to make this change. Senator Pell and I discussed this issue 

at some considerable length.

I think that the word “amnesty” has invoked in the minds of many 

individuals the concept of absolute amnesty.

Our intent is to provide for conditional service. The prior legislation th at we introduced, did use the word “amnesty” and it seemed to 

invoke a reaction from people that no matter how much we explained 

the requirement of alternative service, the general reaction was that 

we had proposed an unconditional amnesty.

Mr. K astenmeier. On Frid ay we received evidence of large numbers of people who are adversely affected in one way or another in 

terms of class.
365

Principally-, your approach affects these who are guilty of selective 

service violations. How many individuals would be affected by your 

legislation if enacted. Senator Taft ?

Senator Taft. Our staff analysis, as of the summer of 1973. estimated that at least 18.5(X) individuals were out of the country due to 

resistance to the draft. It is difficult to tell how many of those might 

be deserters.

The Canadian Embassy just recently provided us with a cumulative 

figure for the first 9 months of 1973. of 15,598 men who are in Canada 

either because they were or thought they were in violation of selective 

service law or were deserters.

Of course, the most difficult number to ascertain is the number who 

are in this country. Facts or figures are not available for this group.

Our best estimate for resisters remains around the 30,000 figure.

Mr. Kastenmeier. Those 30,000 are both here and abroad and they 

presumably would come forward and comply ?

Senator Taft. I would think some of them would.

Mr. Kastenmeier. Of those who would, some would fall within the 

guidelines for positive determination by the Immunity Board, and 

some would not?

Senator Taft. No; that is not correct. Our feeling is if they are in 

violation of the selective service law. regardless of the reason for being 

in violation, they would be eligible for alternative service. The period 

of service in individual cases would be based upon the circumstances 

of individual cases and could be reduced by the Immunity Review 

Board.

Mr. Kastenmeier. I see.

Senator Taft. The mitigating circumstances I have outlined in my 

statement would be applicable with regard to reduction of service.

Mr. Kastenmeier. This is a difficult question and it is a question of 

political judgment. Do you think that the Congress would pass a bill 

dealing with either some form of conditional amnesty or immunity, or 

unconditional amnesty?

Senator Taft. I do not think an unconditional amnesty bill would 

be adopted. I am not sure of the partic ular type of legislation that we 

have proposed.

It seems to me that there would have to be a good deal of an educational process on this issue and I commend this committee because I 

think that bv having these hearings further public congressional 

understanding will be promoted.

Mr. Kastenmeier. Thank you. The gentleman from New York, Mr. 

Smith.

Mr. Smith. Senator Taft. I too want to welcome you here this 

morning as one of the witnesses in regard to this question, which I 

think our country must review and make some decisions about.

I think, as I remember it. you were one of the early congressional 

sponsors of proposed legislation in this field ?

Senator Taft. That is correct, in December of 1971. The proposal 

I introduced was the first alternative service proposal in the Congress.

Mr. Smith. And unless I am mistaken. I think. Senator, your original proposal called for a minimum—I think it was for 3 years of 

alternative service as a requirement for anyone who is to get earned 

immunity. Is tha t correct ?
366

Sena tor Taft. Tha t is correct. Mr. Sm ith.

Mr. Smith. And yon have now decided ap pa rently th at the ma ximum o f 2 yea rs would satisfy the requ irem ents—well, not the requir emen ts of the selective service law of course but pe rhaps the req uir emen ts of conscience?

Senator Taft. Y es; the re were a numb er of fac tor s th at led to th at 

decision.

I would say that one of th e ones t ha t weighed most hea vily in ar ri ving at that decision was the fac tua l situation with reg ard to those who 

have been conv icted in violatio n of the dr af t law and the penalties 

imposed upo n them. In a gre at number of these, ind ivi duals are not 

going to prison , and in cases where impriso nment is imposed the 

average is a bout 9 mon ths.

We felt in balanc ing that facto r off again st alt erna tiv e service, a 

reduction in t he term of service wou ld be equitable.

Mr. Smith. As T un derst and your proposal, the Review Board 

would review each ind ividual case but would allow immu nity with 

alt ern ati ve service only if the ind ividual applying was in fac t, or 

should have been, recognized as a leg itim ate conscientious objecto r 

under the selective service law ?

Se nator Taft. No; I would like to correct th at impression. Any 

dra ft evad er who came in and a vailed hims elf of the provisions o f t his 

proposal af te r it becomes law, would be entitled to immu nity if he 

agreed to a period of service.

Mr. Smit h. Even if he were a selective c onscientious o bjector against 

this pa rticul ar w ar?

Se nator T aft. Y es; no matter wha t the s itu ati on was he would still 

be entitled to the alt ern ati ve service. How ever, if certa in mitiga tin g 

con ditions were involved which are described in th e b ill, the Imm un ity 

Review Bo ard could reduce the period o f service. It specifically could 

not tak e into con sideration selective objection to the Vie tnam war in 

red ucing the 2-year pe riod of service.

Mr. Smith. But a pers on who was a dr af t evader because of his 

selective objection to th is V ietn am service, he could still apply for such 

immu nity, and with a 2-year period o f volu ntee r service, get it?

Se na tor Taft. Th at is corr ect. Tf he qualified on any of the oth er 

bases pro vided for in the law in which there could be a reduction in 

th at period, then he could still qualify for reduction of the period.

Mr. Smit h. F or instance, i f he were a selective conscientious ob jector 

to the Vietnam wa r and lie had a very difficult fam ily con dition th at 

required his presence, tha t latter one would be a gro unds upon which 

the Bo ard could reduce the 2 years ?

Se na tor T aft. Th at is correct.

Mr. Smit h. T ha nk you, very much.

Mr. Kastexmeif.r. Th e gen tleman from M assa chusetts, Mr. Dr ina n.

Mr. Drin an. T hank you, very much. Se na tor T af t, and I comm end 

you fo r ta ki ng the lea dersh ip in th is area.

I am somewh at tro ubled by the un derly ing philosop hy of S. 2832. 

You yours elf enunc iate d it on p age 2—th at you wan t to, i f at all possible, forge t every thing that has tr an sp ire d.

I can understand how you wa nt to do th at, but I ’m not c ert ain t ha t 

the underly ing policy shouldn ’t be faced up to and th at it can ju st be 

pushed in to the bac kgroun d.
367

Ad dition all y, let me ask you some specific questions about the bill.

Can th e Bo ard cre ated by th e legi slation reduce the time of alte rnate 

service to zero or to 10 minutes?

Se nator T aft. Yes, the Bo ard could eliminat e the service req uir ement i f the circums tanc es wa rra nte d.

Mr. Drin an. Is th at entire ly c lear in the bill i tse lf ?

Senator T aft. Yes, I t hi nk so.

Mr. Drin an. L ike M r. Sm ith , I ha d tro uble in this reg ard, w ith the 

exclusion of selective conscientious objectors. I can see your reason ­

ing here. Bu t once again this goes back to the centr al question. These 

people thou gh t th at the war was in fact a mis take or imm oral, the n 

you are say ing in effect th at we sho uld ignore th at and the y should 

still get the 2 years. A nd you p ropose no red uction.

Now, do you think the Gillette case was decided correctly t hat th ere 

is no selective conscientious objec tion ?

Senator T aft. Yes.

Mr. Drin an. All churc h bodies in th is country say it was wro ngly 

decided, and the re sho uld be a pro vision in the law to th at effect. It 

may be th at Congress would hav e to supplem ent the law.

Wo uld yo u vote fo r a law th at gives immu nity to selective conscientious objecto rs?

Se nator T aft. No, I do not believe I could su pp ort th at app roach.

Mr. Drin an. W hy ?

Se nator T aft. I do no t believe a Sele ctive Service System based on 

that princ ipl e could work. I would sav th at I hav e long been one who 

has adv ocated a volun tary Army and have opposed selective service 

as such, unless in a case of absolute n ati onal necessity.

If is becomes necessary to have a Sele ctive Service System , you 

can not have an effective pro cedure with a selective objection to a par ­

tic ular war.

Mr. Drin an. Very few actu ally in all o f Am erica’s histo ry hav e tri ed 

to op t out. But Senator , would you say th at by refusin g to vote for a 

bill th at e xten ds conscientious objection to selective objecto rs, you are 

in effect giv ing a prefere nce to people who think by reason of their 

religious convictions or paral lel convictions th at all wars are wro ng?

Se nator T aft. No, 1 th ink t hat is up to th e Im mun ity Review Boa rd. 

Tha t ce rta inl y is a facto r they can co nside r.

Mr. Drin an. B ut th e pre sen t law gives a preferenc e to Quake rs and 

oth ers who think th at all war is wrong, does it not ?

Senator T aft. A ny ind ividual with obje ction to violence or wa r in 

general w ould be qualified.

Mr. Drin an. W ell, they must believe th at all war s are wrong and 

not merely one w ar is wro ng, and th at is a pa rticul ar religious doctri ne.

Se nator T aft. I think you have gone beyond wh at the Gillette case 

says. My un de rst an ding is th at the case takes a position th at re ga rd ­

less of you!- religiou s belie f, th at if you were again st all wars and 

again st violence, th at you may br ing this forth and qu ali fy for conscientious objection.

Mr. Drin an. All rig ht, but the re are bills filed in the Congres s in 

both bodies th at would ove rrule the Gillette case. And it seems to me 

we cannot continue to say th at only those oppo sed mo ral ly to all war s 

should get this imm unity.
368

On one other point, Senator, at page 8 you cite Department of Defense statistics which allege that less than 5 percent of the deserters 

had ideological differences with the Vietnam war. Is there any careful 

study by the Department of Defense on this rather crucial point?

Senator Taft. The. Defense Department has made studies. Now, 

whether they are adequate or not, 1 do not know. I have not gone 

into great detail on this issue because we were not dealing with the 

deserter question.

Mr. Drixax. I know they are not within this particular legislation.

Senator Taft. Right.

Mr. Drixax. But is it really true, as you state on page 10, that a 

large percentage of such individuals have in the past been offered an 

alternative other than a criminal penalty; that they have been given 

the opportunity to come back into the military service?

Senator T aft. Over the years, that is correct. As I indicated, it is not 

true now.

Mr. Drixax. You suggest th at they haven't been treated th at badly, 

but they never get the GI bill, and they get a dishonorable, or less than 

honorable, discharge if they do return.

Senator Taft. That is not true as a general rule.

Mr. Drixax. It depends on who takes them back, of course, and 

what he reports, but I have cases of quite a few constituents who have 

gone back after they were AWOL. They went back thinking that all 

of tha t has been rectified, but then they end up with a less than honorable discharge.

Senator Taft. Let me comment for a moment there for the benefit 

of the committee generally. I think the committee in its investigations 

and study might properly go into the question of deserters and of the 

provisions of the Uniform Code of Military Justice relating to deserters. This question, however, involves different policy considerations than those involved with resisters.

Mr. Drixax. On page 12 you stated the Department of Defense 

policy of refusing to accept enlistment of men who are in violation of 

the draft law, whether under indictment or not.

Refusing to take someone even though the indictment against him 

has been dismissed, is that illegal in your judgment ?

Can the Department of Defense refuse to take a person who volunteers for the military after the indictment has been dismissed?

Senator Taft. I think it is an open legal question. The voluntary 

Army concept would obviously permit flexibility. I do not think you 

can discriminate against an individual, however, who has had an 

indictment dismissed.

Mr. Drixax. We might have a case of somebody trying to volunteer 

for the military and asserting he has the right to be accepted. It 

would be an unusual case I think.

Senator Taft. I welcome your comments that the Department of 

Justice was wrong here on Friday and I would hope that you will 

bring your influence to bear upon former Senator Saxbe who is now 

the distinguished Attorney General. I’m sure that your views will 

carry a good deal of weight with your former Ohio Senator because 

I'm afraid we gave the Department of Justice a rather bad time the 

other day.
369

On one last point, Senator, dealing with earned immunity. I have 

a little trouble with that euphonism. Those people who have earned 

immunity, would they get the GI bill and housing benefits and the 

right to go to VA hospitals under your legislation?

Senator Taft. No,

Mr. Drinan. That is categorical in your opinion?

Senator Taft. Yes.

Mr. Drinan. I have no other questions.

Mr. Kastenmeier. Mr. Mezvinsky?

Mr. Mezvinsky. I too want to thank the Senator. I was interested 

in his comments in response to the chairman as to the educational 

process that may have to be set in motion in order for us to try to pass 

any kind of legislation. 1 also want to make it clear, and I think I 

understood it, that without question you disagree with Justice Departm ent’s position as to the prerogative of Congress to act in this 

area, is tha t right?

Senator Taft. Very definitely, yes.

Mr. Mezvinsky. There is only one issue I would like to discuss. You 

have stated this morning that conditional immunity is not punitive, 

but those th at testified Friday came out with a different interpretation. Would you care to elaborate as to why conditional immunity 

would not be punitive or a kind of servitude for those tha t would 

find themselves coming under the guidelines of your particular piece 

of legislation?

Senator Taft. I suppose it is perhaps overstated in saying it is not 

punitive in any sense. It is true tha t the individual agrees to serve 

voluntarily without any pressure. However, there is a period of service required and any service I suppose, if it is required because the 

man had violated the law might still be considered as punitive. I did 

not feel it was in writing the statement, but I recognize there is a requirement of service in order to qualify. However, the man makes the 

choice himself as to whether or not to avail himself of the provisions 

of the bill.

Mr. Mezvinsky. Thank you. Senator. I appreciate your contribution to this most difficult area. Thank you.

Mr. Kastenmeier. May I ask one more question. On page 13 of your 

statement you alluded to the uneven approach of prosecution by region 

citing the case of Ohio and of Minnesota. Since this subcommittee is 

also concerned with courts and the administration of justice. I wonder 

if you know why this discrimination exists in the particular case you 

cited?

Senator Taft. I do not know. I th ink it is a matter of the case load 

and investigatory load and the general attitudes in the particular 

judicial districts around the country. I think it does point out an area 

that is very important and that Judiciary Committees, both House 

and Senate, should look into it because T think that nothing could 

undermine the entire legal system more than to have forum shopping 

insofar as this type of case is concerned.

Mr. Kastenmeier. This subcommittee will look into that. It will be 

very interesting.

One other final question. In your judgment do you think that as 

time passes the country is more willing to accept some sort of initiative 

to mitigate the problem that gives rise to these hearings?
370

Senator Taft. Yes. Let me say, however, tha t I interpret the reaction 

of the country as coming from an increased understanding of the fact 

that there is an alternative service requirement in these projections.

I do not know tha t the country's attitude has particulary changed 

on the question of absolute immunity. I detect there still is a rather 

heavy majority against unconditional amnesty.

When I first made my proposal in December of 1971, there was a 

poll taken by Newsweek magazine that indicated a majority of the 

country was in favor of granting immunity with a condition of a 

period of public service.

I think it is more a matter of getting the word through as to what 

you are thinking of doing than it is perhaps any basic change in 

attitude.

Mr. Kastenmeier. Thank you, Senator Taft. You have been very 

helpful this morning and we appreciate it.

Senator Taft. Thank you.

Mr. Kastenmeier. Do you have another question?

Mr. Drinan. One point, Senator. Going back to the question that 

you say your bill specifically excludes deserters. In a certain sense the 

argument is loaded, is it not, by using the term “deserter” ?

Senator Taft. Yes.

Mr. Drinan. There are many people who are morally late bloomers. 

They got into the service and then realized the consequences of their 

action. There is very limited machinery, sometimes no machinery, for 

them to leave the service with permission.

And you simply put them into a category as “deserters.’’ Do you 

think that that loads the discussion ?

Senator T aft. I t may and I would sav this. That issue and that word 

is not used in any way in the legislation that we are talking about 

here. I t is just an easy reference to those who are not covered under 

this bill, who are accused of some violation in connection with their 

duties in the military. Actually a deserter is one under the military 

definitions currently used, as I understand it. and used throughout 

this period, who is AWOL for more than 30 days. If someone is 

AWOL for more than 30 days they are classified by the armed services as a deserter and may be tried if charges are preferred on that 

basis.

We made an inquiry a couple of years ago in tha t regard as to the 

numbers we are talking about and received a figure for a 5-year period 

during the Vietnam conflict that there were as many as 350,000 who 

fitted in that particular category. However, all but some 30,000 had 

been processed one way or another. And I presume that quite a few 

thousand more have been processed in the meantime. I do not have the 

up-to-date figures.

Mr. Drinan. Senator, as you know there were several thousand individuals in that category who protested against the war. that did not 

want to go and there was no real way for them to have their day in 

court. I recall that I l)ecame involved, liefore I was a Congressman, 

with an individual who had that particular moral problem. I went 

all the way to the Secretary of the Navy—he was in the Marines— 

and it came down to the fact that he was going to be court-martialed 

in the next week and he was going to use his conscientious objection 

as a selective conscientious objector as a Roman Catholic and so the
371

Secretary of the Navy gave him a disposition. But not everyone has 

lawyers from the American Civil Liberties Union, and there are 

hundreds of thousands of people who will get no relief under your 

biH.

You say there is an apparent injustice, but is there not a real 

inequity, too?

Senator Taft. I think there may well be inequity. There is inequity 

in any military situation, no question about it.

I mention in my statement that this is an area that I think the 

committee might well want to examine.

Mr. Drixax. Thank you very much. I hope again you work on Mr. 

Saxbe. Republicans from Ohio always agree on things.

Senator Taft. Not always.

Mr. Kastexmeier. The committee expresses its appreciation to you, 

Senator Taft.

It is a privilege for the Chair to greet a very distinguished public 

servant from my part of the country, from the State of Wisconsin. 

He is the former Secretary of the Army and now president of the 

Sentry Corp.. Robert Froehlke.

Mr. Froehlke, we are most pleased to have you here, and you may 

proceed.

TESTIMONY OF HON. ROBERT F. FROEHLKE, PRESIDENT OF THE 

SENTRY CORP. AND FORMER SECRETARY OF THE ARMY

Mr. Froehlke. Thank you very much, Mr. Chairman. Mr. Chairman 

and members of the committee, I appreciate your invitation to appear 

and give my opinion on amnesty. At the outset, I should state that the 

subject of amnesty like so many other important issues that 1 have 

faced in both business and Government defies a categorical rightness 

or wrongness. Amnesty is much like the issue of U.S. involvement in 

and departure from Southeast Asia. Only those who are absolutely 

positive of the rightness of their position are wrong.

The fact that he is not sure of his position will not, and I believe 

should not, deter anyone from testifying before your committee. Obviously, it has not deterred me. We must rely on our personal values, experience, and just plain instinct. Obviously, to refuse to take any position until one is absolutely sure he is right is at best naive and at worst 

cowardly.

My own values and experience—but mostly my instinct—tell me 

now is the time to begin to discuss and then act on amnesty. At the 

same time, and very frankly in an unconfident way, I hastily add that 

my position could be dead wrong.

But, then, it is not for me but for you Congressman to decide who is 

right or wrong. And that I guess—I presume—is why Congressmen 

have hearings.

Permit me to begin by giving mv views as to what amnesty is not.

Amnesty is not a liberal rallying point. I am a moderate, as are 

most Americans who must ask for amnesty before it becomes a reality. 

Putt ing a liberal tag on amnesty might glamorize the issue, but it will 

most certainly dim its political future.

Amnesty is not an “antimilitary” issue. I was, am, and will continue 

to be promilitary. as are most Americans. Most Americans respect the
372

military and desire th at their cou ntry rem ain militaril y stro ng. To 

cate gorize amnesty as an tim ili ta ry does the mili tary a diss ervice and 

again hur ts the cause of amn esty in th e p olitical a rena .

Am nesty is n ot “anti adminis tration.'" Ad mi ttedly , m any th ou gh tfu l 

and well-meaning ind ividuals in this ad minist ratio n oppose amnesty. 

Conversely, others, like myself, were mem bers of the admi nis tra tio n, 

are p roud of it, and fav or a mnesty. Th e same difference o f o pinion on 

this issue can be fo und in previous a dm inistrations.

Am nesty is an act th at only a strong, co nfident, an d ju st nation can 

bestow. You can not dem and amnesty. You cannot threaten amnesty. 

Am nesty is giv en.

Th e insecure, the mean, the confused cannot ever gr an t amnesty. 

Th ere fore, the fact th at amn esty is bein g discussed augers well for 

America.

Th e n um ber of people involved w ith am nesty is subject to wide v ar iance. Some say 5,000; oth ers 30,000 or 100,000. I sugges t over 200 million could and should be involved. There are 200 million Am ericans 

doing a p rou d, generous, and kin dly a ct o f besto win g amnesty.

Why am nesty and why now ?

Wh en serving as Secre tary of the Army , I oppo sed amnesty. The n 

most of our young men were obeying the law and repo rti ng for the 

dr af t. Some were bein g dr af ted and were fig hting a nd were dy ing in 

Vietnam .

A t th at tim e, we cou ld not say those disobeying t hat dra ft law and 

fleeing fro m A merica: “Come home, all is fo rgi ven.”

Bu t, why now amn esty for them? Am nesty now, first of all, because 

the dra ft and the kil lin g is over.

Am nesty now because we need to begin me nding in every way possible the heartb rea k and th e wounds left by th at war. 1 am not prepa red 

to say Vie tnam was righ t or wron g. I will let the his tor ian s do that. 

How ever, it is clea r that, rig ht or wrong, Vietn am deep ly hu rt 

America.

Am nesty now because it is Am erica’s youth who are involved, and 

Am erica has always shown mercy and restr aint with its young people.

Th ere are two p rim ary consideration s which will dic tat e th e pa rameters of any workable amnesty. On the one hand, thi s cou ntry will 

someday again be fac ing a dr af t. In dev eloping an amnesty pro gra m, 

no thing sh ould be done which would make a futur e dra ft unworkab le. 

I suppose it could be arg ued th at even talking about any amnesty 

imposes some burde n on a fu ture dr aft. I think not, but if t his is the 

case, 1 would still a ccep t because the h igher p rio rity is th e op po rtu nity 

to heal the hu rt.

On the other hand, we must constant ly bear in mind th at all those 

po tential ly involved in amnesty have one th in g in common—the y were 

young. They have mad e a mistake, in my opinion, a serious mistake, 

but they are youn g. There fore, any amn esty pro gra m must not be. 

appro ached from vindictiv eness. But ra th er from the s tan dpoin t of a 

ju st and generous nation dea ling me rcifully with a relativ ely small 

num ber or yo ung peop le who made a serious erro r.

Those po ten tially elig ible for amnesty can be div ide d into two dis ­

tin ct gro ups—those who did not ente r m ili tary se rvice a nd evad ed the 

dra ft and those who entered military service and deserted. The two 

grou ps must be trea ted separately.
373

I hav e co ncluded th at all dra ft evaders s hou ld be giv en bla nket c ondit ional amnesty. I rea dily concede th at it would be “n ice” if we w ould 

only g ra nt am nesty to those who fled fo r mo ral reason s an d n ot to those 

who fled for selfish reasons. Un fo rtu na tely, in my o pin ion, i t is impossible to determ ine intent . There for e, the amn esty fo r dra ft evaders 

mu st be b lanket.

The amnes ty must be con dition al. Not n ecessarily because we wa nt 

to pu nish thfose who ran. Ra ther because th ose who r an ha ve n ot as yet 

ha d an op po rtu nity to serve th ei r country like those who stayed and 

served. There for e it is o nly ju st a nd reasonable th at the first act upon 

re turn ing to th ei r country sho uld be service to th at co untry —as an 

obligation and a privi leg e; no t punishment. (I rea lly see very lit tle 

reason to arg ue abo ut the me rits of a conditio nal versus an unconditio nal amn esty. Since leavin g as Secre tary of the Army , I have had 

op po rtu nity to travel throug ho ut the Un ite d Sta tes , and talk and 

debate with any numb er of groups on the sub ject of amn esty . P ra gma tically, it is my opinion th at the Am erican people would un de r no 

circums tanc es allow amn esty of an uncon dition al varie ty to ever be 

enacted by Congress.)

Service to t he country should not be limited to the military. I t should 

certa inl y include the m ilitary bu t sho uld be as broad as service t o fellow man can possibly allow. It certa inl y would include proje cts like 

VIS TA, Peace Cor ps, hospitals and chu rch work.

Th e len gth of term to be served would have to be determi ned by 

Congress. I th in k the key con sidera tion sho uld be how long is it necessary to serv e in order to pe rfo rm a useful service. Vindictive ness 

should not enter into the con sideration. In the pa st I have ind ica ted 

th at I would be satisfied with 3 mo nth s se rvice if some dut ies cou ld be 

fou nd where useful service c ould be p erf orme d in th at length o f time. 

I chose th is relativ ely short per iod of tim e in an at te m pt to ind icate 

th at vindictive ness should not be influencin g. I confess th at the only 

possible are a where I can come up with useful serv ice in th at s ho rt a 

period of tim e would be in volun tee ring for medical exp eriments at 

gr ea t per son al risk. I hope there will be oth ers and there may very 

well be others.

Pe rh ap s the least controversial gro up elig ible fo r amnesty is the 

dr af t eva der who was sentenced and is servin g in prison . I daresay 

thi s is civil disobedience at its best. Clearly these should be. granted a 

full pardo n and t he ir service in prison should be co nsid ered service to 

cou ntry.

Th e deser ter is a fa r more complicated problem and I have n ot been 

able to come up with a solu tion that, com pletely satis fied me. These 

facts d ictate th at it is a differe nt s itu ati on than the civilian who evaded 

the dr af t. One, the deser ter is sub ject to the unifo rm code of military 

justice. Two, it was not uncommon for the desertion to occu r af te r 

comm itting a criminal act.

Fo r the time being I have concluded th at the de ser ter must be trea ted 

on a case-by-case basis. A board must be cre ated t ha t would look at the 

deser ter’s tot al record in a non vindictiv e and generou s manner. Ho wever, amnesty shou ld be a pplied only to an act of desertion and no p rior 

or subseque nt cr imina l acts.

Is amn esty re ally possible?

I t is, and there are several encoura gin g signs pointing t hat way.
374

The first sign, of course, is t hat the dial ogu e has begun. Amnesty is 

being considered here in the Congress and in variou s other foru ms 

across the land . This mu st continue.

An other sign is Am erica’s his tor y of forgiven ess. In less than 30 

years we have forg iven our for me r enemies—G erm any and J ap an . We 

are now expen din g untold political energy and ma ter ial resources 

str iving to ma intain a semblance of detente with China and with 

Russia. If we will forgive, and we s hould, e nti re nations and hundred s 

of million s of “enem ies,” then can't we co nsid er forg iveness, reha bilitatio n and rein statem ent o f on ly a few thousa nd of ou r brot hers?

But of the gr eates t encouragement is th at A merica is a st rong nat ion 

of str on g, confident and just people who have long demo nst rated a 

capacity to forgive and forg et. These peop le would conside r amnesty.

The meek, the mean, th e insecure cannot forgiv e and forg et. Inste ad, 

they would dem and rec rim ina tion, ind ulg e in divisiveness, wallow in 

self-flagellation. Th eirs is to counterattack again st those who turned 

and ran when the N ation needed them. T heirs is to pun ish, a nd p unish 

again , the men who wronged them. These peop le would not consider 

amn esty , but they are not Am erica’s people. So, I am enco uraged.

Yes, America can gr an t amnesty. Bu t should America forgiv e and 

forget ?

We should not forg ive and forge t if our reason for doing so is to 

cleanse our soul from im moral acts.

We should not forgive and forge t if our reason for doing so is an 

attempt to return to this country “th e best who left.”

But we should forg ive and forge t if amne sty will h elp heal the h ur t 

this N atio n has suffered. America has been b adly hu rt this last decade. 

Tha t is a fac t an d no a mou nt of blam e-placing on in div idu als or gr oups 

will help heal th at hur t.

(L et me paren the tic all y here sta te th at some pro am nes ty people, 

I believe, are hu rtin g the cause because I believe any att em pt to combine determination of gu ilt for the hu rt with the cause of amnesty 

will, in my opin ion, doom amn esty. The re are jus t too man y candidates resp onsible for the dam age—and here I suppose I c ould include 

myself alth ough I do not think so—who would feel an obliga tion to 

oppose the guilt- pla cin g.)

Unquestion ably Vietnam ha s compounded th is Na tio n’s sorrow s over 

the last decade. Thus, isn ’t it a uniq ue op po rtu nity befo re us tod ay 

th at we m ay use amn esty as an agent to heal the hu rt?

An unwelcome alt erna tiv e would be for America instead to indulge 

in vindictiv eness. But, th at could only punish America more than 

Am eric a has alr ead y been pun ishe d. Alrea dy I see a direct c orrelation 

between the continuing turmo il within the Nation and our present 

ha rdlin e sta nd on amnesty. Th e Presi dent said long ago, “We need a 

renew al of the sp iri t to meet the crisis of the sp irit of our country .” 

Is not forg iveness a v ital fun ction of the spiri t ?

Is the re a more noble deed th an for a s trong, forgiving Ame rica t o 

say to those who lef t, come home now? I think not.

Ha s the re been a time when Am erica needed more a pro fusion of 

noble deeds? I think not.

In conclusion, gentlemen, let me sh are with you an observatio n from 

my scores of con vers ations and d ebates on this issue. It is that it might 

well be impossible for those most dir ectly involved in Vie tnam to ap-
375

proach amnesty with objectivity and without allowing emotion to influence their position. The dra ft avoiders and deserters on one hand 

and the bereaved mothers and widows, veterans or professional soldiers 

on the other hand might well, and very understandably, look at amnesty from a very personal perspective.

I understand and respect this fact. From their personal perspective, 

as each views the issue, their individual conclusions are right and just.

I suggest, however, that most Americans can and should look at 

amnesty from a much broader perspective. Those who have been less 

affected by Vietnam can and should approach amnesty from the 

broader perspective of what long lasting effect could it have on America ; what long lasting effect will it have on America.

I compliment you for holding these hearings now and thank you for 

the privilege o f appearing before you. Hopefully what has transpired 

will inspire some of the dispassionate and the disinterested groups 

among us to judge amnesty. But, not because there is a wrong to be 

righted. But because amnesty is the opportunity to begin healing the 

hurt that goes far beyond Vietnam itself.

America today needs its unifying and healing cause.

And if the Good Father will forgive me for moving into his area, a 

Sunday ago the scripture at our church I thought was very appropriate and describes the kind of climate which will bring about amnesty. 

I would like to end with a quote from chapter 6, verse 8 of the Phillips 

translatio n:

You know well enough, O people, what is good '.

For what does the Lord require from you,

But to be just, to love mercy,

And to walk humbly with your God ?

Thank you.

If you have any questions, I would be more than happy to answer 

them if I can.

Mr. Kastenmeier. Thank you, Mr. Froehlke, for a most relevant 

statement.

I am impressed with the notion tha t we have in past wars, as you 

pointed out, forgiven our enemies. Perhaps we ought to forgive our 

sons. You mentioned Germany and Japan. And without intending to 

heap any additional criticism on the White House, because there is 

more than enough to lavish upon the White House these days, I would 

say tha t I remember a year ago that the administration had proposed 

a program, which never came about, to aid North Vietnam. I f not an 

act of forgiveness, this was at least a very generous act.

While it never came about for various reasons, nonetheless, it would 

suggest that if we were capable of such an act, we might indeed be 

capable of forgiving those who were affected otherwise by Vietnam. 

Would you not agree ?

Mr. F roehlke. I would not rule that out. I think it is practical to 

‘‘forget about it for the moment,” just as I would have said at the conclusion of World War II, “forget about it,” when I thought of Germany and Japan. But I think now those of us looking back will agree 

that it was a generous act, and it was, from the selfish interest of the 

United States of America, a wise act.

Mr. K astenmeier. Senator Taft also proposed some form of service 

although in a somewhat different form than yours. One of the argu-
376

ments that is r aised to t he no tion th at these men ought now t o be given 

an op po rtu nity to serve th eir country is th e fa ct th at o ver th e pa st 10 

yea rs so many have not served. Pe rhap s they wer en’t g iven the o pp ortu ni ty or perha ps they a voided service leg ally.

Th is ine quity is pointed out by many to sug gest th at perha ps we 

need not require of these people a specific ter m of service because as 

they suggest, so m any ot her s were n ot asked to serve or avoided service 

legally.

W ha t is yo ur comm ent on t hat analysis ?

Mr. F roehlke. My comm ent is I agre e th at m any did not, t hrou gh 

wh at I think was a very un fa ir d ra ft law. How ever, there were many 

who were selected th roug h th at dra ft law a nd tho se who were selected 

and served, I believe did not serve out of pun ishme nt.

I hav e a da ug hter who is going—o r hope s to go—into the Peace 

Cor ps. I can assu re you she is not looking upon th at as her 2-year 

pun ishment. She looks at it as a ‘2-year op po rtu nity and a real 

priv ileg e.

So, yes; man y did not serve t hro ugh lega l means. However, I think 

those th at did , do n’t, feel th at they were bein g punish ed.

Mr. K astenmeier. I th an k you fo r your state ment and I yield now 

to the gen tlem an from Massa chusetts, Mr. D rin an.

Mr. Drin an. T ha nk you very much, Mr. Secre tary. And I forgiv e 

you fo r moving into my are a of theology, as you might say, except T 

hope th at your theology can improve. I ’m af ra id I don’t un derst and 

you r theo logy here on page 7. I t seems to me you dismissed t he basic 

reasons why we should have amnesty.

You say, “We should no t forgiv e and forget if our reason fo r doing 

so is to cleanse our souls from imm oral acts.” I th in k th at w ould be a 

good reason.

Then you say, “We should not forgive and forget if o ur reason for 

doing so is an attempt to return to this country the best who left.” 

And I thi nk th at is an oth er good reason.

An d the only reason you give validation to is “Wre should forgive 

and forget if am nesty will help heal the hu rt th is Na tion has s uffered.” 

An d T am not oppo sed to th at , but T suggest th at is less hon orable 

than some of th e othe r motives.

Ad ditio nally , Mr. Fro ehlke , T was very surpr ise d to note in your 

statem ent on page 2, t hat you state, “Conversely, oth ers, like myself 

were members of the admi nis tra tio n, are proud of it and fav or am ­

nesty .” Now, can you me ntio n some others?

Mr. F roeiilke. I can m ention specifically Mel La ird .

Mr. Drin an. Wo uld you adm it by yo ur testim ony th at th e Dep ar tment of J us tic e is wr ong and t ha t Congress can legisla te in th is area ?

Mr. F roehlke. T am a lawyer, bu t I have n’t pra cticed in 20 years, 

and theref ore T d on ’t wan t to hedg e, but T d on’t wa nt to stick my legal 

neck out. And fra nk ly at this stag e I don’t th in k it is too im porta nt. 

T thi nk the prim ary pur pose o f t his committee a t this stag e is to bring 

the facts before the Am eric an people.

Ag ain I don’t t hi nk the Am erican pub lic is y et rea dy for amnesty. 

He aring s such as th is should p rep are th e way. I t is an im po rta nt issue, 

bu t even if it is finally decided th at the Congres s cannot act, I th in k 

these hea rings will serve a ve ry valu able purp ose.
377

Mr. Drixax. Recent polls ind icate th at they accept it. It is pretty 

even. It’s 45 to 43 in fav or o f some sort of amn esty . AA h y do you say 

they ar e not ready for it ( 1 h eard th at 3 years ago.

Mr. F roeiilke. This is also very person al, but my own poll and let ­

ters 1 have received, from those I get are f ar more anti than pr o.

Mr. I )rix ax. So do I. but tha t doesn’t pro ve any thi ng .

Mr. F roeiilke. Presby ter ian s’ and Catho lics can get tog eth er you 

see.

Mr. Drix ax. On page 3. Mr. Secre tary. I have a little trouble with 

yo ur assum ptions at the bottom of the page. A ou say. “On the one 

hand this c ountr y will someday again be fac ing a dr af t. In develop ing 

an amnesty prog ram no thing sho uld be done which would mak e a 

future d ra ft unworka ble .”

Yo ur assum ptions here are very curiou s and I have difficulty 

figuring this out. You assume, I would assume, th at young men are 

not patrioti c. Tha t if we had a war th at was a good Avar they w ouldn ’t 

go and we cann ot erode their responsi bility or, second, you could say 

that the U .S. Go vernm ent is g oin g to enter fu rthe r war s in which the 

peop le do n’t believe and th at we have to have this pow er of coercion 

and we ca n’t weaken it, or you can say the Un ited State s can not toler ­

ate too man y conscien tious ob jectors a nd we should n't encourag e them.

It seems to me the entire assumption sh ould be on the ot her foot, an d 

th at t he Governme nt sho uld have to prove to the people th at a future 

Avar is a jus t Avar. I believe we sho uld resolve doubts in th ei r fav or if 

that hap pen s. They are the people who have a sense of m ora lity and it 

seems to me we should resolve th at if they say, “ I am not going to 

believe th at t his is a good Avar simply because my Government says it.

In the light of t ha t, why do you uoaa’ say that* “I suppose it could be 

arg ued th at even talking abou t any amn esty imposes some burde n on 

a fu ture dra ft .” ?.

In oth er Avords. you are saying. “D on’t encourage the c onscientious 

obje ctors too mu ch; Ave don 't need that ty pe ; Ave wa nt a dr af t th at is 

workable.”

Mr. F roeiilke. Well, you are p ut ting Avords in my mouth .

Mr. Drix ax. These are assumption s, not w ords.

Mr. F roeiilke. Peo ple, good peo ple ,conscientiou s people oppose an y 

amn esty because the y say th is Avill encourage future peop le, selfish 

people, to avo id serving. An d my rep ly is rig ht along your lines, Mr. 

I )rin an, th at I h ave enough confidence in the young people of America, 

of any age, tha t if the issue is rig ht, they will serve as th e v ast majo rity 

did in the Vietnam conflict.

HoAvever, I do point out th at we sho uld not in any amnesty issue do 

an ything th at Avould ind icate th at they're real heroe s because I do 

thi nk , first of all. I disa gree with th at and second. I do think it would 

enco urage the selfish. And amongst us we ahvays ha ve and alw ays will 

have some selfish people Avho will use th at to ration alize ru nn ing the 

next time no m atter how Avorthy the cause.

Mr. Drix ax. Do you think th at Congress should pass a law th at 

Avould reverse the Gillette case and alloAv selective CO ’s too?

Mr. F roeiilke. I am a long Avays aAvav from th at. I th in k not, but 

I Avould really just from a sta nd po int of n ot being an expert, not like 

to an swe r th at. I'm in clined t o say no th ough.

31-658 —74------20
378

Mr. Drixax. Why do you say at the top of pag e 4, catego rica lly, 

th at thes e people have mad e a serious mis tak e? By wh at mo ral ity do 

you say th at ? W hy do you come out so str ong on tha t ?

Mr. * Froehlke. I ha sti ly add ed from th ei r sta nd po int many of 

them o bviously felt they did w hat they ha d to do.

It is str ictly from my own personal and very pre jud iced point of 

view. I believe the y mad e a mistake, but th at is Bob Froeh lke spe aking. T certa inl y do n't want to jud ge them from a m oral sta ndpoint .

T th in k fro m a stan dp oint of a social scie ntis ts, from hopefully a 

stu dent of government, the y mad e a mistake . I do not address the 

mo ral issue.

Mr. Drix ax. Mr. Secre tar y, I happene d to hear you on the rad io 

this morning. As I heard it, it seemed th at you were ma kin g a 

serious mistake when you used the old clich e th at , “f or every one of 

thes e people who resiste d or dese rted someone else ha d to go.” Th at 

does no t take in to account, in my judgm ent, th e la rge num ber of people 

that, the chair ma n m entioned, maybe 10 million or 15 million, who were 

fortu na te enough to go to college and pile defer me nt upon d efe rment 

and get throu gh law school.

Mr. F roehlke. I f T might add the re, t he Re po rte r th at was ask ing 

the question asked the question about, “I s it not tru e th at fo r every ­

one who ran someone else ha d to serve,” and I believe my rep ly was, 

“Yes, I guess th at is tru e. ”

T di d n ot raise it. As I say, he raised it.

Mr. Drix ax. But it real ly isn ’t tr ue, is it ?

T hat isn’t in your testim ony , Mr. Secre tar y, and so th at may 

be un fair.

A t the top of page 5 you say that the Am erican people “would under 

no circumstance allow amnesty of an unconditio nal varie ty to ever 

be enacted by Congress,” yet Senator T af t's pla n pro vided for that.

An d if the Com mittee of Five on the prop osed Am nesty Review 

Bo ard so decided , th ey could give tot al amnesty wi tho ut any a lte rnate 

service to 99 percent o f the people. Wo uld you be opposed to th at ?

Mr. F roehlke. I person ally feel under Se na tor T aft ’s hill, and the 

lit tle I have stu died it, it is acceptable to me.

I suggest, and you are the pol itic ian s and I am not, bu t T would 

sug gest th at in mv opinion America isn't rea dy for th at yet. And T 

wou ld hate to see the amn esty issue fal l because we tak e too ha rd a 

stand.

Mr. Drix ax. You say. Mr. Secr etary, th at the first thi ng these people 

sho uld do upo n retu rn ing to th eir country is to perfo rm an act of 

service to th eir coun try and th at they should assum e it as a privile ge 

and not as a pun ishme nt.

W ha t do you say to the overwh elm ing nu mb er of people who are in 

Ca nada or elsewhere, who totally disagree and say th at the v alread y 

have served th eir country by going into exile, by rai sin g this moral 

question? Thev feel in all candor th at yo ur approach is really very 

patro niz ing . R ightly or wro ngly, th at is th ei r po sition.

Sup pose th at un de r the law th at Se na tor T af t prop oses and th at 

you propose in effect and princ iple. Mr. Secre tar y, th at the problem 

is not solved because the peop le who are dema nding amn esty think 

entirely differently?
379

Mr. Frohlke. I would have two comments. First of all. they are 

directly involved and from their perspective they perhaps look at it 

as punishment. My first point would be I don’t feel that way and I 

hope that they would not.

Mr. Drixax. But suppose they do ?

Mr. F roehlke. My second point, if they do look upon it as punishment, 1 don't think 2 years in the Peace Corps or 2 years working for 

a church or working for a hospital, if it is punishment, is a very great 

punishment. And I guess 1 would very pragmatically say if a young 

man is not willing to then subject himself to tha t 2-year service, he 

doesn't want very badly to come home to his family and to his country.

Mr. Drixax. But thousands of them are already at home under indictment or underground, what about them ? Suppose they say “Listen, 

J don't want to do service. I will just get into some make-shift job and 

that is what it will be” because Senator Taft's bill say they can't take 

a real job; they can't exclude a Vietnam veteran or a veteran from 

being employed. So it is a make-shift job. Anti suppose they say “This 

is a pretense of those people who still think that this war was a good 

war” ? I assure you th at the overwhelming number of people who are 

asking for amnesty feel that way.

Are you possibly proposing a law that is not going to resolve the 

problem at all ?

Mr. F roehlke. I would think obviously that it is useless to propose 

a law that would not accomplish anything.

Mr. Drinan. Right.

And what makes you think you are proposing a law or Senator Taft 

is proposing a law that will serve anything ?

Mi-. F roehlke. Because from my perspective we are not punishing. 

From my perspective we are being reasonable in saying serve your 

country in some worthwhile capacity. And I think, although I have 

no way of proving it, th at most reasonable in saying serve your country 

in some worthwhile capacity. And I think, although I have no way of 

proving it, that most reasonable youngsters who left will under those 

circumstances return and perform useful service to their fellow man.

Mr. Drixax. Do you have any indication of that ?'

Mr. F roehlke. Xo.

Mr. Drixax. Xo?

Mr. F roehlke. Xo.

Mr. Drixax. Do you think that Senator Taft might have any indication tha t even 5 or 10 percent of those who are in this category 

would in fact take advantage of his bill ?

Mr. Froehlke. I do not know.

Mr. Drixax. Thank you, Mr. Secretary.

Mr. Kastexmeier. The gentleman from Xew York, Mr. Smith.

Mr. Smith. Thank you, Mr. Chairman.

Thank you, Mr. Froehlke, for coming here and giving us the advantage of your thoughts and feelings in regards to this matter and I 

think, as a former Secretary of the Army, your observations are perhaps in a little different category than most of us.

I think Father Drinan covered most of the things I wanted to ask 

you about, but I was particularly interested in your feelings tha t the 

American people would not now accept an unconditional amnesty, 

tha t is, general amnesty without any conditions attached to it.
3S0

Is that correct ?

Mr. Froeiilke. And it is my own political gage, and that is very 

subjective and perhaps very prejudiced, but as I read it, it comes 

through loudly and clearly to me that if we are going to have a form 

of amnesty in the months ahead, it must be of a conditional variety.

Mr. Smith. Air. Froehlke, thank you for your help in the dialog, 

which has been started here in this committee. Thank you very much.

Mr. Kastenmeier. I would like to say in conclusion that 1 appreciate most deeply your testimony and I would say notwithstanding 

the fact that your position may not be approved by all applicants of 

amnesty, that if indeed the Congress-----

Mr. Froeiilke. May I in terrupt there ?

My position—and this is the problem with the man in the middle—it 

really is not agreed to by anybody on the right or on the left.

Mr. Kastenmeier. I appreciate that. And 1 believe that if the Congress or the Federal (iovernment does in the future move forward in 

this area, I think it will be due to your position and others like you.

I want to thank you very much personally for the courage you had to 

come out and take the position you have. I compliment you for it.

Air. Froeiilke. Thank you very much.

Air. Kastenmeier. I appreciate your appearance and the position 

you have taken.

Air. Froeiilke. Thank you.

Air. Kastenmeier. I would next like to call I)r. AV. Sterling Cary, 

president of the National Council of Churches of Christ in the United 

States of America.

Dr. Cary.

TESTIMONY OF DR. W. STERLING CARY, PRESIDENT OF THE NATIONAL COUNCIL OF CHURCHES OF CHRIST IN THE UNITED

STATES OF AMERICA: ACCOMPANIED BY REV. RICHARD KILLMER, DIRECTOR OF SPECIAL MINISTRY, VIETNAM GENERATION,

AND MEMBER, NATIONAL COUNCIL OF CHURCHES STAFF: AND

E. WILLIAM D. GALVIN, JR., EMERGENCY MINISTRY ON CONSCIENCE AND WAR. UNITED PRESBYTERIAN CHURCH

Dr. Cary. Mr. Chairman, I have the Reverend Richard Killmer, 

Director of our Special Ministry, Vietnam Generation, and a member of the National Council of Churches stall', with me to answer 

technical questions.

Air. Kastenmeier. AVe are pleased to greet him as well, Dr. Cary.

Dr. Cary. Mr. Chairman and members of the subcommittee, I am 

AV. Sterling Cary, president of the National Council of Churches of 

Christ in the United States of America.

The National Council of Churches is a federation of 31 Protestant 

and Orthodox Christian communions in the United States whose aggregate membership totals approximately 42 million persons.

1 do not purport to speak for all members of the communions constituent to the council. I am speaking for the governing board of the 

National Council of Churches, its highest legislative body, which is 

composed of 340 members selected by member churches in proportion 

to their size. It is this body which determines the policy positions on
3S1

the basis of which the council seeks to fulfill its ma ndate “to stu dy 

and to speak and to act on con ditions a nd issues in the Nation and the 

world which involve moral, eth ica l, and sp iri tual principles inhere nt 

in the C hristian gos pel.”

At the outse t, Mr. Ch airma n, I want to express our gr atitu de to you 

and the othe r m embers of this subcom mittee for co nduct ing these h earings at this time. Du rin g earlier period s o f the his tor y of ou r country, 

it was the executive who took the in iti ative in g ra nt in g amnesty. Ho wever. th at initiative has not been forthcoming in recent times. There 

was only a very lim ited amn esty af te r Worl d W ar II . none af te r the 

Korean war, and none so fa r for the Ind ochin a war.

In fact, a distinguish ed gro up of religious leaders have found it 

impossible even to obtain the op po rtu ni ty to discuss the subject with 

the present Executive. Fo r nearly 3 m onths they have sought a meeting with the Pre sid ent. Th e Whit e House response to me was “H is 

schedule is such th at a time is not foreseen when he can meet with 

them.” There for e, it is rea ssuring to us to see the Congress take the 

initiativ e on a matter which we feel is of crucial importanc e to society.

The solemn fact we must face toda y is t ha t we a re not “one Nation 

ind ivisible.” Division and separat ion exist across Am erican society, 

much of it is born of the war in Ind ochin a, the longest war in the 

his tor y of the United Sta tes. T he wa r has d ivided families an d friends. 

It has contr ibu ted to polar iza tio n between races, classes, age gro ups, 

and those with varyi ng lifestyles.

Wh ile the whole Nation h as been affected by dissension over the w ar, 

two gro ups have suffered especially—those who served and those who 

resisted participa tio n. I ap pe ar before you tod ay to support amnesty 

for those who have resisted the war. However, I am con strain ed to 

express, i f b ut briefly in this pa rti cu la r f oru m, ou r a bid ing concern for 

oth ers in ou r society who suffered because of the war.

These victims of the wa r include the fam ilies of men who died in 

Ind ochin a, those who ret urned wounded and disa bled and their families, those who were taken priso ner and those still missing , and their 

fam ilies . Then the re are the more than 7 million other vetera ns of the 

Vie tnam era. They do not rep resent a cross section of U.S . society 

because military manpower pro cur em ent du rin g the Vietn am era was 

selective by race and class.

Many white, mid dle class, and edu cated men were exempted or d efer red , and as a consequence, those of non white and poore r economic 

bac kgrou nds filled a d isp ropo rti on ate sha re of the ran ks of the Arm ed 

Forces. Thus, man y of the problem s bein g experienced by Vietnam 

era vet era ns are fu rthe r com plicated by th ei r bac kgrou nds—a pp roximately 20 perc ent of them ret urn wit hout a hi gh school edu cation, and 

too m any have l ittle to offer the job ma rke t.

The Nation is not using its resources to meet the needs of veterans 

as substantial ly as it did af te r Worl d W ar II . Because of the contro versial na ture of the war, veterans and th eir special needs become 

an unwelcome rem ind er to a n ation seeking to forget Vietn am.

The dynam ics which flow fro m such a tentati ve relati on ship ap ­

pa rently contr ibu te to such problems as under usa ge of the GI bill, 

une mployment, drug usage, and emotional difficulties. If we are to 

accomplish tru e reconciliation in ou r country, Gov ernment and the
382

institution s of society mu st pro vid e an ade qua te response to the Vietnam veteran and his needs.

The National Council of C hurche s h as sought td serv e a nd m iniste r 

to those affected by the wa r, throug h a prog ram call ed Spe cial Ministries/ Vie tnam Gener atio n. The firs t th ru st of the prog ram in 1970 

minis trie s to resisters, exiles, and th ei r fam ilies, no t o nly in th is country , but in C anada an d Sweden as well.

We have no desire to engage in a “numb ers gam e’’ with those who 

seek to minimiz e the size of the problem and reduce huma n tra ge dy 

to figures on a page. How ever, based on 4 years of work in Canad a, 

we can assure this subcomm ittee th at the re are aro und 35,000 U.S. 

exiles in th at coun try alone.

Since mid-1971, our Special M inist rie s/V iet na m Ge neration pr ogram has also worked with local and regional chu rch bodies in this 

country to help them assist Vietn am ve teran pro jec ts responding to the 

needs of those return ing from Indoch ina. In addit ion to working on 

edu cational, employme nt, and h ealth needs, some of these projects have 

been focused on the special tra um as of those veterans who are in priso n 

or ca rry the add ed handicap of an oth er- tha n-h onorable disc harge. 

There for e. Mr. Ch airma n, we do not solic it the concern of the Congress for these men from a position of splend id isolati on bu t out of 

firs t-hand acquaintance with the ran ge of problems the y and their 

fam ilies face each a nd every day.

In a polic y statement e ntitled “H ealin g the D ivis ions o f th e N ation” 

ado pted in December 1972, the National Council of Chu rches gover ning boa rd expressed its concern for all those adv erse ly affected by the 

war. On the subject of amnesty, it said, “We view amn esty not as a 

matter of forgiven ess, pardo n, or clemency, but as a ‘blessed act of 

oblivio n,’ the law's own way of u ndoin g what the la w its elf ha s done.”

To whom besides a long -suffering, divided Na tion, should amnesty 

be gra nted ? In its statem ent, th e go verning b oar d sug ge sts:

Gen uine reconc iliation dem and s th at amn esty be g ranted to all who 

are in legal jeo pardy because of the war in Ind och ina . T he only exception would be fo r those who have com mitted acts of violence again st 

persons, and even these cases shou ld be review ed ind ivi duall y to de ter ­

mine if amnesty is ap prop ria te.

Such amn esty wo uld includ e:

(а) Dra ft resiste rs and des erte rs who have exiled themselves to 

oth er countries;

(б) Those cu rre ntl y in prison o r military stockade, those on prob ation, those who have served th eir sentences, and those who arc subje ct 

to prose cution for violation s of the dr af t or m ilitary la w ;

(c) Dra ft resiste rs and deserters who have gone un de rgroun d to 

avoid pro sec ution:

(<7) Vietn am -era veterans with less -tha n-hono rable discharg es: a nd

(c) Tho se who have com mitted civ ilian acts of resistance to th e w ar, 

or are bein g prosecuted u pon alleg ations of the same.

The tra di tio na l way to deal with those in legal jeo pardy to whom a 

nation would e xtend compassion is an amnesty—the non prosecution of 

the law fo r certa in violations b y a class of p ersons and the expungin g 

of the effects of the law fo r those charg ed with certa in crimes. It is 

gran ted not because the Government agre es with the political and 

moral positions o f th ose affected, but because it is in the natio nal interest. I t is forgetting, not forgiv ing .
383

The Na tional Council of C hurche s supp orts amn esty because:

1. I t is a necessary firs t step towa rd healing and reconciliations. 

Ab rah am Lincoln gran ted amn esty, even tho ug h the idea was un po pul ar with many , because it was necessary to b rin g th e cou ntr y togeth er. 

1 fe knew it would bring reconciliation in the long run and was re quired 

if the No rth and S outh were ever to be reunited.

2. The imprison ment of persons in lega l jeo pardy for follow ing 

conscience ra th er th an law does not serve the Na tio n in any p roductive 

way. It is not reha bilitative —persons are not g oin g to have their consciences change d throug h inc arc era tion. It is not a d eterrent. If there 

were a trul y defe nsive war or if anoth er n ation were t ru ly in need o f 

our support , many of those who would cu rre ntly be affected by an 

amn esty would parti cipa te. Im priso nm ent is sim ply punis hm ent—a 

fu rthe r vis itation of the traum a caused by the war upon those who d id 

not mak e th e decisions abou t our inv olvement in tha t conflict b ut must 

ca rry the burd en of those decisions.

3. We need to have those who would be affected by amnesty play an 

active role in our society. We need their skills and insigh ts. We need 

th eir expression of conscience, their com mitment to the unive rsa lity 

and interdepende nce of persons.

4. As Ch ris tia ns we are called to be reconcilers, to be open to G od ’s 

new and co nti nuing c reation , to have and teach compassion, and seek 

an end to vindictiveness.

The Na tio nal Council of Chu rches supp orts a unive rsa l amn esty 

becau se:

1. Th e basic difference between des erte rs and dr af t resiste rs is only 

a m atter of tim ing .

2. Those with oth er- tha n-h onorable discha rges are ba rre d from 

many jobs and ma ny can not receive assistance from the Ve terans' 

Ad mi nis tra tio n. No worth y natio nal purpo se is serv ed by dema nding 

continuation of this s tigm a.

3. Th e healing, un ify ing pur pose of amn esty can be realize d only 

by exten ding it to all those in legal jeo pardy because o f the war. B ar ­

ring one gro up or a no ther from a n amn esty would only d ram atize the 

division which th e w ar h as created in our society.

The Na tional Council of Chu rches supp orts an unconditio nal am ­

nesty becau se:

1. Case-by-case review is impra ctical if n ot impossible . Wh o amo ng 

us is qualified to probe the conscience of anoth er, to jud ge mo tiv ations when society asks its young men to forge t the y have been ta ug ht 

“Thou shalt not kill.” As the National Council of Churche s govern ing 

board said in its s ta te m en t:

God alone knows what act ually motivat es the action s of persons, and 

few act fo r one re ason alone. There for e, we feel it unwise to attempt to 

jud ge the motives of those to be given amn esty , ju st as we do not 

pres ume to jud ge the motives of those who were in the A rm ed Force s.

2. Conditio nal amn esty is sti ll punis hm ent—pu nishm ent which 

serves no useful purp ose. Since it seeks to c onform the dic tates of conscience, it wou ld be ne ith er reh abilitat ive , no r a deterren t.

3. A conditio nal amn esty wou ld postpone, pe rhaps des troy, the 

hea ling and unifying value of amnesty.

Mr. Ch air man, the bitterness of the wa r years lingers on ; yet . we 

detect a hu ng er for healing in this country. Some say th at ail those
3S4

who are or feel sep ara ted from society because of the w ar sutler voluntarily. Th is, of course, is not tru e. So we plead tod ay fo r those who 

suffer—but also for ourselves, our life tog eth er, our Nat ion. A un iversal and uncon dition al amn esty would be a clear and simp le act 

which could begin to unite us and signal ou r desire to live at peace 

with one anoth er, to build ra th er tha n divide. Even as the re is a n end 

to war—may th ere be an e nd to suffering.

1 urg e this subcomm ittee to begin the process of reconciliation .

And again 1 would like to express our apprec iation to you fo r ta king 

the initiative in ma kin g it possible for a natio nal dia log aro und tin* 

issue o f amne sty to begin.

Mr. Kastenmeier. Thank yo u. D r. C ary.

W ith ou t objection, the policy statem ent of December 2,197 2, of the 

National Council o f Churche s of Christ attach ed to your statement will 

be made a p art of the record.

| The document r efe rre d to above foll ow s:]

National Council of Churches of Christ in the U.S.A., Policy Statement

on the Indochina War: Healing the Divisions of the Nation

(Adopted by the General Board, December 2, 1972)

The war in Indochina lias brought great destruction to thre e nations of Southeast Asia. Hundreds of thousands of persons have been killed, wounded or made 

homeless: the cultures have been disrup ted; the landscape has been destroyed. 

The people of the United States must work for the rebuilding of Indochina, and 

the churches must take a sacrificial part in the reconstruction. But in this sta tement we will consider the ha rm which has recoiled upon this nation and its people.

The war in Indochina, the longest in the histo ry of the United States, has also 

rent the fabric of American society. President Lincoln, responding to the hurts 

and disjunctions of another conflict, called upon the people of America to “hind 

up the natio n's wounds.” Tragically , the atte ntion of the nation was too soon 

diverted from this task. Recrimination and injustice consequently lasted for an 

entire century. There is the danger tha t the American people will he similarly 

diverted today from the task of healing the nation.

The crisis of the wa r in Indochina is fundamentally one of conscience. Some 

Americans thought the war jus t and necessary, while others thought it an immoral and trag ic mistake. Likewise, some young men served in the armed forces, 

while others resisted participation.

These differences have not alway s been accepted as permissible divergences of 

public opinion or even as legitimate exercise of conscience. Instead they have 

led to slander, recrimination, and the accusation that the basic ideals of the 

natio n have been forsaken.

Consequently, families and friends have been divided by differing opinions on 

the conflict. For example, it is not unusual for parents to have one son who fought 

in Indochina, while another emigrated to Canada. Almost every aspect of American life has been affected by dissension over the war. The divisions between races, 

ethnic groups, age levels, and life styles have been widened as a result of it.

Not only has the whole nation suffered from division over the war. but those 

who served and those who resisted participation have especially suffered. Over 

55,000 Americans have been killed in Indochina. Over 400 have been prisoners of 

war, held in North Vietnam—some for a very long time.

The veterans of the Vietnam era have also been hurt. Because the Selective 

Service System exempted and deferred many white, middle-class and educated 

men. those of non-white and lower economic backgrounds filled a disproportionate 

share of the ranks of the armed forces. Consequently, many of the problems of 

the veterans of the Vietnam era result from the ir backgrounds—approximately 

20% of them return without a high school education and the ir unemployment 

rate is substan tially higher than for others in the same age bracket.

The natio n is not using its resources to meet the needs of veterans as substantially as it did after World War II. Many Vietnam era veterans are therefore 

hu rt, fru strate d and angry because not only is their nation not showing gratitu de 

toward those who served, hut it also appears to he ignoring and rejecting them.
38 .5

De ep sc ar s were also inf lic ted on thos e wh o believed th e w ar im moral an d 

refu sed to part ic ip ate in it. Ov er GO,(MM) pe rso ns, bo th d ra ft re si st er s an d de se rter s, 

have become ex ile s in ot he r na tio ns . More th an 100,000 men ha ve been pros ec uted 

fo r d ra ft violations . Untold nu mbe rs of d ra ft re si st er s an d des er te rs ha ve gon e 

un de rg ro un d to aovid pros ec ution. Alth ou gh mo st ha ve re tu rn ed , or ha ve been 

ca pt ur ed , ov er 330,000 me mbers of th e arm ed forces de se rted du ring th e Viet na m 

er a.

Mb re th an 300,000 Viet na m er a ve te ra ns ha ve rec eive d less -tl ian- ho no rabl e dis ­

ch ar ge s, a stigma they wi ll he ar fo r th e re st of th eir liv es. Som e ha ve been convicte d by co ur ts m art ia l fo r crim es which would he con side red felonies by civilia n 

co ur ts, hu t th e ac tion s of th e ov erwhe lm ing m aj ori ty wo uld eit her he misde m ea nor s or would ca rr y no pe na lty at all in civi lia n life. Th e m ajo ri ty of les s-t lia nho no rable di sc ha rg es re su lt no t from th e decis ion of a court s m ar tial , hu t by the 

or de r of a co mman ding officer. H ad the se m en an d women no t been in th e m ilitar y 

service , th eir reco rd s wo uld not ha ve b een p er m an en tly m ar re d by th is i m pu ta tion 

of wrong-d oin g.

At th is tim e of na tion al di st re ss , we shou ld remem be r th a t God is ou r final 

ju dge; li e alo ne is Lo rd of the con scienc e. We wi ll st an d at th e la st aw ai ting I li s 

ju dg m en t an d ne eding His mercy. Our hu man syste m of ju st ic e is not desig ned 

to se par at e the righ teou s fro m the unr ig ht eo us in an y such final sen se, hu t 

me rely to m ai nt ai n the sa fe ty an d welfare of th e hu man co mmun ity . It exceeds 

its fu nc tio n wh en it divide s th e co mmun ity an d stig m at iz es som e citiz en s because 

of pa st vie ws an d ac tion s wh ich no long er pose a th re at to th e sa fe ty of th e 

co mmun ity , if in de ed they e ve r did.

H ea lin g th e les ions in our socie ty le ft by th e w ar in In do ch in a wi ll re qu ire 

hu m an comp assio n an d po lit ical fo rb ea ranc e. Th e w ar w as begun de sp ite th e 

pro te st s of a su bst an tial min or ity of the American peo ple an d co ntinue d de sp ite 

th e re se rv at io n of a m aj or ity. Som e yo un g men an d wo me n ag re ed w ith the 

m ajo ri ty —t h a t th e w ar was a mistake . Be lie ving th at it wa s als o unju st an d 

im mor al, they refu se d to part ic ip ate in it an d th us in cu rr ed va ry in g de gree s of 

lega l jeop ar dy . To hunt them down an d pr os ec ute them now is to ad d vind ic tiv eness to vi ct im izat io n, ne ithe r of wh ich is a pr op er ba sis fo r im po sin g cr im in al 

pe na ltie s an d will only in cr ea se ra th e r th an he al the nat io n's hurt s.

We fu rt h er rec ogniz e th e nee d fo r reco nc ili ation on th is issu e with in the 

Ch urch . The re ha ve bee n C hrist ia ns who en te re d th e ar m ed for ces be lie vin g 

th a t th e ca us e in In do ch ina was ri gh t an d ju st . O th er C hrist ia ns ha ve held 

op po site view s wh ich led them to re si st a nd w ar and th e dra ft .

We believe th at C hrist works in Il is Ch urch , ca llin g us to ge th er to be one 

bod y as a sig n of Il is in te nt io n fo r th e whole hu man family . Il is rec on cilin g love 

overc om es m is tr ust an d susp ici on an d he als h u rt an d pa in. C hr is t ca lls us to 

new Being, both pe rs on al ly a nd c or po rately.

As li e ca lls those in Ilis Chu rch to be rec on ciled, so we covet for Am eri ca th e 

ex pe rie nc e of reco nc ili ation. For reco nc ili atio n to begin, ho we ver, cer ta in ac tion s 

are ne cessary .

Ge nu ine reco nc ili atio n de man ds th at am ne sty be gr an te d to a ll who ar e in leg al 

je opar dy be ca us e of th e w ar in In do ch ina. Th e on ly ex ce ption wo uld be fo r thos e 

wh o ha ve co mmitt ed ac ts of vio len ce ag ai nst pe rson s, an d 'even th es e ca ses 

shou ld be rev iewe d in di vi du al ly to de term in e if am ne sty is ap pr op riat e.

Such am ne sty wo uld in cl ud e:

(a ) d ra ft re si st er s an d des er te rs who ha ve ex ile d them selves to ot her 

co u n tr ie s;

(b ) thos e cu rr entl y in pr ison or m il it ary stoc ka de s, th os e on pr ob at io n, thos e 

who ha ve serv ed th eir senten ce s, an d thos e wh o ar e su bj ec t to pr os ec ution fo r 

vi ol atio ns of th e d ra ft o r m ilitar y law ;

(c) d ra ft re si st er s an d de se rt er s wh o ha ve gone un de rg ro un d to avoid pros ecu tio n ;

(d ) Viet na m er a ve te ra ns w ith less-tl ian-ho no rable di sc ha rg es ;

(e ) thos e wh o h av e co mmitt ed c iv ilia n ac ts of r es ista nc e to the w ar or a re be ing 

pr os ec ut ed u po n al le ga tion s of the sa me .

God alon e know s w ha t ac tu al ly m ot iv at es th e ac tio ns of pe rso ns, an d few ac t 

fo r one reason alo ne. The re fo re , we feel it un wise to att em pt to j ud ge the m otives 

of th os e to be giv en am ne sty, ju st as we do no t pr es um e to ju dg e th e motives of 

th os e wh o were in th e ar m ed force s. For in stan ce , we do no t belie ve th a t d ra ft 

re si st ers an d dese rt ers de se rv e di ff er en t tr eatm ent, sin ce th e la tt e r wo uld be 

pe na liz ed sim ply be ca us e th eir co nv ict ions ma y ha ve ch an ge d aft er en te ri ng th e 

se rv ice, ra th er th an befor e.
386

We view am ne sty no t as a m att er of forgive ness, pa rd on , or c lem ency, bu t as a 

“b les sed act of ob liv ion ,” th e la w 's own wa y of un do ing w hat th e law itse lf ha s 

don e.

Rec on cil iat ion fu rt h er re qu ires cre at in g th e po ss ibili ty of ne w liv es fo r those 

American s h u rt by the w ar in Indo ch ina. Veter an s sh ou ld ha ve ad eq ua te he lp fo r 

th eir un em ploy men t, ed uc ation, an d he al th nee ds. To a cc om plish th is w ill re qu ire 

th e in te re st an d resp on se of al l in st itutions in th e U ni te d Sta te s. In ad di tion , 

ve te ra ns ' benefits prov ided by fe de ra l an d st ate go ve rn m en ts s ho uld be increa sed 

to a lev el a t le ast co mpa rable to thos e afforded ve te ra ns of World W ar II.

Th e Chu rch at all lev els needs to mak e its he al in g m in is try av ai la bl e to ve ter an s. Pri so ne rs of w ar and th os e in ca rc er at ed in United Sta te s pr ison s also will 

re qui re th e de ve lopm en t of op po rtun itie s to he lp them liv e fu lfilling live s. In 

ad di tion thos e American s wh ose needs wer e no t met bu t were even ex ac er ba te d 

be ca us e re so ur ce s of th e nat io n were div er te d to th e w ar effort, re qu ire th e special att enti on of ou r na tion . By gra nting am ne sty an d pr ov id ing op po rtun itie s 

fo r th os e h u rt by th e w ar in In do ch ina, we wo uld begin to re pair some of th e 

da m ag e to o ur n at io n inf lic ted by t h a t war.

Mr. Kastexmeier. I)r. Ca rv you say that you can assure the sub ­

committee th at there are appro xim ate ly .‘’,5.(100 U.S . exiles in Canad a 

alone. On what do you base th at figure? We have received a numb er of 

figures and y ours may be higher than some o the rs we received.

Dr. Cary. Let me call on Rev. Richard Ki lm er to answer that 

question.

Reveren d Kilmer. Yes sir. Th at figure is based upo n our experience 

in working w ith the nine aid gr oups in Canada d ur ing the last 4 years. 

These are aid gro ups of Ca nadia ns and ex-A merica ns who are very 

muc h con cerned ab ou t the w ar resisters and th eir cou ntry.

We ha ve responded for the las t 6 ye ars to Am erican s who have come 

there ask ing fo r he lp in housing a nd jobs and counseling a nd that k ind 

o f thing . Th is record is rea lly based upo n th eir experience. It is also 

based upo n the number of p ersons who have acquired lan ded e mi grant 

sta tus from the C anadian G ove rnm ent du rin g the Vietn am era as well.

An d the th ird fac t it is based upon, this last yea r, as you pro bab ly 

are awa re, the C an ad ian Government change d their immigra tion law 

to g ra nt the possibility to those who were undergroun d in th at co untry 

to come fo rth and to declare them selves and hence reg ula rize their 

position w ith in Can ada.

Ou r aid gro ups had con tacts with 14.000 person s du rin g this 60-dav 

perio d and 13.000 of whom were Am eric an wa r resisters. These are 

people who had not yet reg ula rized their position in Canad a. So t ha t 

would be over and above wha t the Ca nadia n Gover nm ent ’s record 

wou ld show.

So based upon th at, ou r guess, and of course any bod y's guessing 

somewhat in th is a rea, is the number we have shown.

Mr. Kastexmeier. Th an k you. Dr. Cary, you he ard two preced ing 

witnesses call fo r a conditional amnesty. Th e position th at von take, 

the position of yo ur chu rch, is for uncon ditiona l amn esty . If that is 

no t obtainable at this time and if some sort of amn esty conditio ned 

on service such as V IS TA or the Peac e Corps or to chu rches or to 

hospita ls in a lim ited term is called for. do you still persi st in cal ling 

th at pun ishme nt ? Do you think such service might not be usefu l both 

to the ind ividual concerned and to th e country ?

Dr. Cary. Yes, in December 1972 when this resolution was ado pted 

we h ad full discussion of d iffe rent forms o f amn esty, con ditiona l ve rsus unc onditional. The feeling expressed by the G overn ing Board was 

th at not to gr an t general amn esty would neg ate the concept of am-
387

nes ty its elf and would not be an ins tru me nt of healing, but would be 

a cause fo r a f ur th er con tin uatio n of divisiven ess.

Rea l appre cia tio n was also exp ressed du ring th at deb ate fo r the 

liftin g of conscience th at persons res isting th e wa r pe rfo rm ed for the 

total Am erican society and the fee ling th at we would be say ing to 

those who had acted on our behalf, who had acted to up lif t ou r consciences, th at you are not to be punished for th at act. Punis hm ent 

certa inl y would be very unsettling to those who have serio us questions 

abo ut the mo ral ity of the Vie tnam wa r in the first place.

.Mr. Kastenmeier. H yp othe tic all y, and 1 raise this question not for 

my own pers onal poi nt of view but ra th er to establish a dia log on some 

of these questions, if we heard from a numb er of exiles who said "we 

would be willing to return to the country and pa rticipate in some 

con stru ctiv e service such as those pro posals en tail,” the n would you 

• still oppose th at.

Dr. C ary. W ha t we are a rguing is tha t the y be given an op po rtu nity 

to return to the country as full citiz ens o f the country. And 1 am convinced th at many of them would per son ally choose to exercise some 

vocation or some* life callin g th at wou ld be in the intere st of th e country . But to mak e th is a con dition for th ei r return is the point that 

would be vio lated if we gran ted con ditiona l as opposed to gen eral 

amn esty.

Mr. Kastenmeier. Th an k you. I now yield to the gen tlem an from 

Massachusetts, Mr. Dr inan.

.Mr. Drin an. Th an k you vei-y much, Dr. Ca rv and Mr. Kilmer. I 

was very intere sted in the fact t hat a dis tinguish ed group of church ­

men have been tryi ng for 90 days to see P resid en t Nixon. Would you 

describe the group a nd also give us the date, if you would, o f th e lette r 

when he said he was v ery busy ?

Dr. Cary. Well, it has been 90 days.

Mr. Drin an. Nin ety day s, alm ost 90 days?

Dr. Cary. Yes, it began back pr io r to Ch ristm as in Decem ber. We 

had a very large rep res entative grou p which sent a telegram to the 

Preside nt expre ssing the desire of a cross section of A me rican lea dership to------

Mr. Drin an. Dr . Cary, was it leaders o nly from the N ational Cou ncil of Churches or was it Catholics and Jew s too ?

I )r. Cary. Yes, it was an in terfaith leaders hip gro up.

Mr. Drin an. W ell if you would. Dr. Cary, t oday o r as soon as possible please give us the names of eve rybody asso ciated with that. I 

would like to have it in the record and also, if I migh t have t he letter 

th at came from the W hite I louse to you ?

W ha t was the date o f th at ?

Dr. Cary. Well, we received the lette r in Ja nu ar y in response to a 

December reque st.

Mr. Drin an. Well, it may be listed somewhere.

Rev eren d Kilmer. Sir. it was sent the week before C hristma s arou nd 

Decembe r 13th. If you would like the names of the persons who were 

in tha t delega tion r ig ht now. we can g ive you th at lis t now.

Mr. Drin an. All rig ht. I do not wan t to read the lis t here , but I 

assume it is a dis tinguish ed gro up and we ou gh t to have th at in the 

record.

Reveren d Kilmer. F ine . I will sub mit th is mate ria l fo r the record.
[Subsequently Reverend Kilmer submitted the following 

documents:]

[W este rn Union Milligram]

Thi s M ailgram is a c on fir mation c opy of flic follo wing message :

New York, N.Y., De ce mb er IS , L973.

P re sid e n t Richard Nixo n,

White House,

Washinyton, D.C.

P ear Mr. Pres ident : A s pri vat e citiz en s an d as peo ple who sh are in th e le ad er ­

sh ip o f som e of th e relig ious co mmun iti es in the United Sta te s, we seek an op po rtu nity to discu ss w ith y ou a m att er of se riou s im po rtan ce to u s an d to th e co un try, 

we ho pe to sh ar e w ith you our c on ce rn fo r th e post w ar h ea ling of th e Nation an d 

th e co ns id er at io n of an am ne sty .

It has bee n alm os t a yea r si nce an ag re em en t was re ac he d le ad in g to t he w it h ­

dra w al of U,S. co mba t trou ps fro m th e ho st ilitie s in Viet na m. We ha ve rej oic ed 

as a N atio n in th e re tu rn of th e American pr is on er s of war . For m an y fa m ili es 

th is wi ll he th eir first C hr is tm as reun ion in ye ars. We believe it is now th e tim e 

to co ns id er the m att er of am ne sty fo r thos e opposed th e w ar an d fo r thos e who 

serv ed in th e Ar me d Fo rces h ut ar e s tig m at iz ed for life by th e les s th an ho no rable 

disc ha rg es .

H is to rica lly th e C hr is tm as sea son is th e tr adit io nal tim e fo r th e an no un ce men t 

of am ne sty, wh en m an ki nd ye ar ns fo r pea ce an d good will. Ju st as we ha ve 

al w ay s tem pe re d ju st ic e w ith mercy in th e adm in is trat io n of th e law , so th er e 

are tim es wh en a fo rg et ting o f th e law , an d am ne sty are de sira bl e. Th e occasio n 

of offenses is now pa ssed , an d th er e is a gr ow ing pu blic con fidenc e to s ust ain an 

am ne sty, an d a re ad in es s to foc us on th e fu tu re th a t will m ai nta in an am ne sty. 

We pr ay th at you will sh are w ith us in disc us sion as to w he th er th is will he an 

appro pri at e tim e to a nn ou nc e such a n ac t o f g rac e.

Our pas to ra l concern fo r th e th ou sa nd s of American s an d th e ir fa m ili es who 

are es tran ge d fro m one anoth er im pels us to see k a mee tin g w ith you on so 

im port ant a m att er fo r th e ha pp in es s of th e peo ple. Would it he po ssibl e to ha ve 

th is mee tin g d ur in g th e coming we ek b efore C hr is tm as ?

We co ns id er th is re qu es t to be co nfidentia l while we aw ai t yo ur res po nse, an d 

until su ch tim e as ar ra ngem en ts ca n be mad e fo r yo u to rece ive a de lega tio n 

re pr es en ting th e inte r-re ligi ou s t ask force on am ne sty.

We wo uld ap pr ec ia te a rep ly by Monda y, De cemb er 17 to our st af f di re ct or 

W ill ia m Galv in 2128703143 a t th e In te r-Rel ig io us Tas k Fo rce on Am nesty , Roo m 

707. 475 Ri ve rside Drive. New Y ork, N.Y. 10027.

Sin cerely.

Ste rlin g Ca ry, Pre si de nt Nationa l Counc il of C hu rc hes : The Rig ht Re ve ren d 

Pau l Moore, Jr ., Ep isc op al Bi shop of New Yor k; W illiam P. Th om pson , Sta te d 

Cler k of th e Un ite d Pre sb yte ri an Chu rch in th e U.S .A .; Bisho p Jo hn We sley 

Lord. Exe cu tiv e Dire ctor, Bis hojis Call fo r Peace, an d Se lf De velop me nt of 

People. W ashing ton. D .C .; Tho mas J. Gu mb leton, A ux ili ar y Bisho p. Archdio cese 

of D et ro it. A si gn ed copy wi ll he follow ing .

Lou ise R ax sox.

T h e W h it e H ou se.

Washinyton, December 18, 1973.

M r. William Galvin,

New York. N.Y.

Dear Mr. Galvin : Thi s is w ith referenc e to th e te le gra m wh ich Dr. Ca ry. 

Bish op Moore. Bisho p Lo rd. Bi shop Gum ble ton an d Dr. Thom]>son se nt th e P re si ­

den t o n De cemb er 14 ask in g to m eet w ith him .

The Pre si den t is mo st ap pr ec ia tive of th e ex pr es sion of co nc ern of thes e re ligio us lead er s, bu t, re gr et ta bl y, hi s sc he du le is such th a t a tim e is no t foreseen 

wh en h e c an mee t w ith them .

M at te rs re la ti ng to thos e cited in Dr. C ar y’s tele gr am an d le tt er are un de r 

co nt in ui ng review by th e D ep ar tm en t of De fen se, th e Deimrtm en t of Ju st ic e an d 

Se lec tiv e Service an d, shou ld he an d the oth er s wish , a m ee ting with th eir re pre ­

se nta tives might he ar ra nged .

W ith be st wi shes,

Sincerely ,

Terrence O'Don nell.

Staff Assis tant to the President.
389

[W estern U nion M allg ram ]

Thi s M ailgrain is a con fir mation copy of the following m es sa ge:

New York, N.Y., De ce mb er 23, 197S.

Pre si den t Nixon,

W hit e Ho use,

W as hi ng to n, D.C.

Dear Mr. P re siden t: We jo in w ith Dr . ('ary . Bi shop Moore. Bish op Lo rd. 

Bisho p Gu inhleto n, an d Dr . Th om pson of th e In te r-Rel ig io ns T as k Fo rce on 

Am ne sty in ur gi ng you to con side r a C hrist m as a m ne sty an d to m ee t w ith a sm all 

gr ou p of relig io us le ad er s so meti me nex t we ek to disc us s th is im port an t m att er. 

We wo uld ap pr ec ia te a reply as per ou r re qu es t pe rs on ally de liv ered to Ms. Ro sem ar y Wood on Decemlier 13 to St af f D irec to r W ill iam Ga lvin 212 -87 0-3 143 a t th e 

In te r-Rel ig io us Tas k Fo rc e on Amnesty , Ro om 767, 475 Riv er side I)r.. New York, 

N.Y. 10027.

Ro be rt V. Moss, Pre si de nt . U ni ted Chu rch of C hr is t an d Ge org e W. Webber, 

Pre sk le nt , New Yo rk Th eo logica l Se minary.

Lou ise R ansom .

Nation al Cou nc il of th e Chu rc he s

of C hr is t in th e U.S.,

New York, .Y.l’., February 13, PG J.

Th e P resident,

The White House,

Washington, D.C.

Dear Mr. P re siden t: On De cemb er 12 re pr es en ta tives of th e In te rr el ig io us 

Tas k Fo rce on Am ne sty co mmun icated th eir des ire to di sc us s w ith you th e 

im po rtan ce of a mne sty fo r hu nd re ds o f th ou sa nd s of you ng A mer ican s st ill su ffer ­

ing from th e effects of th e Vietnam W ar . We re gre t th a t you were un ab le to see 

them a t th a t tim e bu t were en co urag ed by Mr. Ter en ce O’Do nn ell’s in di ca tion 

th at such a m ee tin g mig ht be arr an ged u[k>u co mpleti on of th e S ta te of the 

Union Ad dress. We wish to rene w ou r re qu es t th a t you me et w ith le ad er s o f th e 

rel igious co mmun ity a t th e ea rl ie st po ssible date to pur su e th is m att er of cr uc ia l 

co nc ern to t he na tio n.

Sinc erely yo urs,

W. Sterling (’ary.

President, National Council of Churches

F o r : Ja m es Arm strong , Bisho p of United Metho dist Ch urch , D ak otas 

A re a; H ow ar d W. B art ra m , Gen eral Sec re ta ry , Fri en ds Gen eral 

C on fe re nc e; Jo hn C. B en ne tt, Pre si de nt Em er itus . Union Th eo logica l Se min ar y (N ew York) ; Peggy Bi lling s, As s’t Gen eral Se creta ry , Wom en’s Di vis ion , Boa rd of Globa l M in istrie s, Un ite d 

M etho dist C hurc h; Ma lcolm Boy d, Ep isc op al pr ie st an d au th o r; 

Rob er t McA fee Brow n, Pro fe ss or of Re lig ious Stud ies. St an fo rd 

U ni ve rs ity; Jo hn II. B ur t, Bi shop of Ohio, Ep isc op al C hurc h; 

W ill iam Dav idson. Episc op al Bish op of W es te rn K ansa s; Ed wi n 

T. Dah lberg. P ast Pre si den t. N at io na l Co un cil of C hu rc he s; 

Rob er t L. DeW itt, Ep isco pa l Bisho p, Phil adelp hia ; Jo hn J. 

Dou gh erty, A ux ili ar y Bi shop of N ew ar k: Th eo do re M. Iles bu rg h, 

Pre si de nt , Unive rsity of N ot re Da me . In di an a ; Lor ton G. Ile usel, 

G en er al Se cr et ar y, Fri en ds Un ite d M ee ting : 'Willi am W. Holm an. 

Assoc iate Pro fe ss or of P ast ora l Theolog y, Ya le D iv in ity Sc ho ol: 

Dav id R. H un te r, Dep uty Gen eral Sec re ta ry . Natio na l Co un cil of 

C hu rc he s; Ja m es K. Mathe ws , Res iden t Bisho p, United Method ist Chu rch. W as hing ton, D.C. A re a: J. Br oo ke Mos ley. P re si ­

de nt, Union Th eolog ica l Se m in ar y (N ew York) ; C. K ilm er Myers. 

Bisho p of C ali fo rn ia ; Dav ie N ap ier, Pre si de nt . Pa cific Sch ool of 

R el ig io n: Ric ha rd J. Neu ha us , Pas te r, Chu rc h of St. Jo hn th e 

Eva ng el ist (N ew York) ; R ic har d Sh au ll, Hen ry Lu ce Pro fe ss or 

of Ec um enics , Princ eton Th eo logica l Sem in ar y: Rog er L. Sh inn, 

Pro fe ss or of So cia l Eth ic s, Un ion Th eolog ica l Sem in ar y (N ew 

York) ; How ar d Schome r, W orld Is su es Sec re ta ry . United Ch urch 

Boa rd fo r World M in is tr ie s: Jo se ph Sittler , E m er itus Pro fe ss or 

of Th eolog y, Uni ve rs ity of Chi ca go ; Rob er t E. S]>ears, Bisho p,
390

Episcopal Diocese of Rochester: John M. Swomley, Jr., Professor 

of Christian Ethics, St. Paul School of Theology : Joel K. Thompson, Associate General Secretary, Church of the Brethren General 

Boa rd: Margaret Ellen Traxler, Executive Board, National Coalition of American Nuns; Ann Patrick Ware. S.C., Ecumenical 

Committee Chairwoman, Leadership Conference of Women Religious; Cynthia Wedel, Past President, Natio nal Council of 

Churches; John II. Yoder. Professor of Theology, Notre Dame 

University and Associated Mennonite Seminaries.

The Washington Office.

National Council of the Churches

of Christ in the U.S.A..

Washington, D.C., February l.j, 197'/.

lion. William B. Saxbe,

Attorney General of the United Staten, Department of Justice,

Washington, D.C.

Dear Mr. Attorney General: In mid-December seven of us. writing as private 

citizens and as people who share in the leadership of some of the religious communities in tlie United States, sought a meeting with President Nixon to discuss 

a Christmas amnesty for hundreds of thousands of young Americans still suffering from the effects of the Vietnam war (copies of telegrams enclosed). We were 

informed that the President was unable to meet at that time, leading us subsequently to renew our request, following Christmas, for a meeting with the President “at the earliest possible date” . We await, scheduling of such a meeting.

In the meantime, we were informed by Mr. Terence O’Donnell, Staff Assistant 

to the President, tha t matters related to those we cited in our first telegram are 

under continuing review by your Department, as well as the Departmen t of 

Defense and the Selective Service System. He suggested that a meeting at these 

three agencies would be in order.

We responded, on Jan uary 3, saying we would welcome such an opportunity, 

although, as we trust you will understand, we cannot consider this an alterna tive 

to meeting with the President.

Would you kindly inform me of your willingness to see a small group of us 

representing the Inter-Religious Task Force on Amnesty, an ecumenical organization of repre sentatives from various religious groups in the United States. We 

would be grateful if such a meeting could be scheduled before March 1.

We apprecia te your consideration and we look forw ard to the opportunity to 

communicate our views on this matte r of crucial concern to th e nation.

Sincerely,

W. Sterling Cary,

President, National Council of Churches.

Note: Same le tte r sent to Hon. James It. Schlesinger, Secretary of Defense and 

Mr. Byron V. Pepitone, Director, Selective Service System.

U.S. Department of J ustice,

Office of the Pardon Attorney. 

Washington, D.C., February 26, 197'i.

Rev. W. Sterling Cary,

President. National Council of the Churches of Christ in the U.S.A.

Washington, D.C.

Dear Dr. Cary: The Attorney General has asked me to acknowledge your letter of February 15.1974 concerning amnesty.

From time to time, the Presiden t has issued general amnesty proclamations 

that applied to certain groups of previously convicted individuals. One such 

proclamation, issued after World War II. pardoned a number of Selective Service 

violators who were specifically named therein. All such proclamations, however, 

have applied to persons who had been previously convicted and had paid the 

penalty imposed upon them by the courts.

As fa r as I am aware, no consideration is presently being given to a general 

amnesty proclamation for persons who refused to serve in the armed forces 

during the Vietnam conflict.

Sincerely, Lawrence M. Taylor,

Pardon Attorney.
391

National H eadquarters,

Selective Service S ys tem,

Washington, D.C., February 26, 191}.

Rev. W. Sterling Cary.

President, National Council of Churches,

Washington, D.C.

Dear Mr. Cary: I ha ve bee n aske d by th e D irec to r of th e Se lec tiv e Se rvice 

Sy ste m to reply to yo ur le tt er of Feb ru ary 15 in which you re qu es t a m ee ting t o 

discus s am ne sty fo r vi ol at or s of th e M ilitar y Se lective S en dee Act.

As you know , th e Pre si de nt ha s al re ad y (state d w ith re sp ec t to th e fu gi tiv es 

(e st im at ed to be ap pr ox im at el y 4400) th a t “'tho se wh o des er te d m ust pay th eir 

pr ic e” an d “the pr ice is a cr im in al pe na lty fo r diso be ying th e laws of th e United 

S ta te s. ” Th ey are includ ed w ith in th e 5119 vio la to rs pr es en tly un der in di ct m en t 

an d th e 3080 vi ol at or s pr es en tly un de r cr im in al co m pl aint or F B I in ve st ig at io n 

as of Ja n u ary 1. 1974. We am i th e D ep ar tm en t o f Ju st ic e ar e a t th is mo me nt 

pre pa ri ng a po sitio n on th e issu e of am ne sty fo r th em as well as fo r the 7902 

vi ol at or s wh o ha ve bee n conv ict ed fo r vi ol at in g th e M ilitar y Se lec tiv e Service 

Ac t sin ce A ug us t 4, 1964 (d ate o f th e Ton kin Gulf R es ol ut io n) . O ur vie ws w ill be 

pr es en ted in resp on se to a re qu es t by th e Sen ate Ju dic ia ry Com mittee fo r commen ts on Sen at e Bill 2832— Th e E ar ned Im m un ity Act of 1974—a s we ll as to a 

Ho use of R ep re se nt at iv es Ju dic ia ry Su bc om m itt ee which will ho ld he ar in gs on 

th e qu es tio n of am ne sty on M arch 7 an d 8.

Be ca use th er e are not “h un dr ed s of th ousa nds of yo un g American s st ill su ffer ­

ing from th e eff ects of th e Vietnam w ar” wh o wo uld be affecte d by am ne sty, as 

see ms to be a po pu la r belief, tlie m att er do es no t ap pea r to he one which is of 

“c ru ci al co nc ern to th e nati on” de m an di ng im m ed ia te at te ntion. Secon dly, th e 

Pre si de nt ha s mad e his po sitio n cl ea r in th e m att er w ith re sp ec t to fugitiv es . 

Thi rd ly , th e A dm in is trat io n's po sitio n on S. 2832 as we ll as fo r th e sc he du led 

he ar in gs ha s no t as y et b een e stab lis he d.

In view of th e abo ve, it wo uld no t appear th a t a m ee tin g w ith th e D irec to r to 

disc us s am ne sty is w arr ante d o r appro pri at e a t th is tim e.

Sinc erely ,

Walter II. Morse,

General Counsel.

Mr. Drixax. I wonder if this same group has “thought of going to 

the Attorney General, since he is in charge of the policy. I suppose, 

and. you know, the position of the Department of Justice in that they 

think we are wasting our time because we have no jurisdiction in their 

judgment '?

Dr. Cary. We had a response suggesting a number of persons within 

the President’s family who would be open to a visitation. We indicated 

our willingness to do that, not in lieu of a visit with the President, 

but to take advantage of that, too.

Mr. I )rixax. You mean his official family ?

Dr. Cary. Yes; but now I do not think we have heard any more.

Mr. Galvix. We received two responses. One was from the D epartment of Justice and one from the Selective Service System. Their responses were similar to the responses presented the other day. They 

emphatically let us know their position, and it was our conclusion that 

it would not be profitable to meet with these people, that they did 

not seem open to any dialog we could engage in.

Mr. Drixax. All right, thank you. Concerning your statement of 

some 35.000 I ’.S. exiles in Toronto, the thought occurred—and I have 

not mentioned this to the chairman—would it be helpful in your ju dgment. Dr. Cary, if this subcommittee had hearings in Toronto?

Dr. Cary. I think it would be a very, very helpful experience. There 

have been a number of statements made, which tend to interpret the 

response of persons who have resisted and are in exile, to proposed actions before the committee for discussion. 1 think it is another thing
392

for persons who are exte nsively in that sit ua tio n to even resp ond to 

this question of general versu s .conditional amn esty, and 1 think we 

should have th eir o pinions and tha t it would certai nly at leas t p ut into 

your consciousness their feelings.

Mr. Drix ax. I must say, 1 feel more and more th at the very people 

who are the intend ed beneficiaries of these laws we propose cannot 

even come to list en to the discussions.

I would suggest, Mr. Ch airma n and Dr. Ca ry, just a tho ught that 

came to me t ha t Good Fr iday , Ap ril 12, w ould be a most symbolic day 

for us to be in Toronto.

Wo uld you say, I)r. Cary and Mr. Killm er, th at in the long run and 

really in the short inn. too. the only relief th at can be given is an 

enactm ent by Congress of a provision for selective conscientious 

objection ?

As you know, all of th e churches and synagogues have endorsed this 

concept. The re was resistance to this, this morning. Se nator T af t said 

he would not vote for it, and S ecretary Fr oehlk e likewise said he is not 

in fav or of a law th at would give selective conscientious objectors this 

status.

Do you feel th at should be done by the Congress and done soon ?

Dr. Cary. I would feel very strongly to th at. Rich, would you like 

to answer?

Rev eren d Killmer. Yes; the NCC has taken a policy on th at, I believe about (> yea rs ago we adopted a policy on th at , so th at has been 

discussed.

Mr. Drixax. I know it has been here fo r a long, long time , and 

people come before us and they use whatever shre d of law they can to 

justify amnesty. If we had a law pro vid ing for selective conscientious 

obje ction, we could use it retroa ctively, like Se nator T af t and the Secretary were u sing an y sh red of law retroactively.

I wish to than k both of you for your testimony . It is a very fine 

con trib ution.

Mr. Kastexmeier. The gen tlem an from New York, Mr. Smith.

Mr. Smith. T ha nk you.

Dr. Ca ry and Reverend Killm er. than k you very much for ap pe aring th is mo rning with the statem ent of the National Council of 

Churches. Dr. Cary, you say in your s tate ment that the Nation is not 

using its resources to meet the needs of veterans as substan tia lly as it 

did a fter World W ar I I. You may be correct in th at. I have the feeling, 

as a Member of the Cong ress, that the Nation and the Congress are 

tryi ng to do a good job f or these veterans. I am sure th at we can always 

do a be tte r job. But I also wan t to assure you th at I am sure th at 

the Congress is not in any way try in g to ignore these veterans, these 

Vietn am veterans, who have problems, as you have in dicated. But I do 

wan t to congra tul ate y ou r Nation al Council of Chu rches for the work 

th at you are doing with the special mi nistr y, with th is Vietnam genera tio n, both in reg ard to those mostly young men. but pro bab ly now 

accomp anied by young women, wives, who hav e felt impelled to exile 

themselves from th is country, but also with th e work t ha t you are d oing 

to help the Vietnam vetera ns themselves, who are in this country and 

who need help , and not only ap pa rently at the level of your natio nal 

council have you given this help , but from prom oting pro jects at the 

local churc h and local regional areas. An d I think tliis is a very im-
393

po rtan t work , and 1 do co ng ratulat e you on it and tru st th at you will 

redouble t his effort.

And it m igh t be, for inst ance, t ha t if the Congress were to pass some 

kind of a con ditiona l amn esty bill req uirin g 2 yea rs of service, these 

are areas of service where some of these young people migh t be used.

I had anoth er question. Includ ed amo ng the people to whom the 

nat ion al council would extend an unc onditional amn esty are, I believe, 

Vietnam vete rans w ith less-tha n-hono rable discharg es. Is that co rrect ?

I )r. C ary. Yes.

Mi-. Smith. We ll, in man y instances, do you not th ink th at is a 

differen t prob lem, because in many instances and perha ps in most in ­

stances, there has been some jud icial or quasi-jud icial decision rendered 

in th at reg ard , a mili tary justice decision or military admi nis tra tiv e 

decision, whereas with the, d ra ft resiste rs, pa rti cu larly , t here have not 

been a ny judic ial o r a dm inist rativ e decisions m ade ?

In oth er words, would not you say th at it is a somewhat differen t 

problem and p erh aps a pro blem we oug ht to be concerned w ith, but one 

th at you cannot really lum p in with dr af t resisters ?

Reverend K illmek. Xo ; we would not agre e with that. In rea lity, 

there have been a numb er of gro ups of persons with whom the law, 

eit he r civilia n or military, has de al t; th at is, those pers ons who violate d the dr af t and were imp riso ned and are out of pris on. The law 

also dealt with them, and they are also conc erned abou t amn esty and 

would in fact be pro tected by am nesty.

The same, with those with o the r-than-h onorable dis charg es; it is true 

the military has dea lt with them, but it is because the military has 

dea lt with them th at the y have this pa rti cu la r prob lem.

And i f we were in fact to accomplish th e h ealing th at m ust tak e place 

in this country, th at g roup must be included as well.

Mr. Smit h. I am merely po intin g out what would ap pe ar to me to 

be a fact, t ha t a g rea t man y o f the people with less th an h onorable d ischa rges got th at kin d of discha rge because of some vio lati ons of d uty 

or military law or civilian law th at the y may have pa rti cipa ted in 

when they were in the m ilitary, whereas th ere was a judgm ent, maybe 

a militar y-jud icial jud gm ent or military-adm inist rativ e jud gm ent, 

that they should be dis honorab ly discha rge d or th e other types of lesstha n-h onora ble discharge given to th em.

And I was merely po intin g ou t the fact th at it seems to me tha t we 

should be concerned with them , but the y are a differen t prob lem, and 

th at perhap s the solu tion there or a possible solution would be by 

review boa rd.

Reveren d Killmer. Y es: but we w ould contend th at also those who 

have in fac t been convicted of a dr af t vio lati on hav e also lieen dealt 

with by the law in the same way. and th at in ou r opinion does not opt 

out the fact th at the y would be a pro duct of a po ten tial amn esty. 

I do not. t hi nk th at arg um ent is eno ugh to say th at they the ref ore 

should not be inclu ded.

Mr. Smit h. All righ t, I guess what I was tryi ng to point ou t is the 

fac t, o r the possible f act , tha t the basis fo r a person to hav e a less-thanhon orable dischar ge might be en tirely di fferent from the basis of w hat 

we are pro posing in am nesty ; th at is. an unw illingnes s to meet the 

requirements of the selective service law.

Dr. Cary. That p oss ibility is certainl.v th ere .

31-C3S— 74----- 27
394

Mr. S mith. Yes. Th an k you. I)r . Cary and Rev erend Killm er.

Mr. Kastenmeier. The gen tlema n from Iowa.

Mr. Mezvinsky. Th an k you.

We have h ad a quoru m call, so we w ill p rob abl y ha ve to recess. I have 

one question or one point.

Did you r organiz ati on debate the con dition al versu s the uncon dition al ?

W as it basically ove rwh elm ingly the consensus th at in view of the 

conflict you pointed out as to the punitive n atur e th at as a resu lt you r 

org aniza tio n decided to go for the uncon ditiona l ?

Dr. Cary. Correct, this had a very sign ificant ma rgi n.

Rev eren d K illmer. Absolutely.

Dr. Cary. I t was not a closely conteste d action. There was an overwhelm ing feeling.

Rev eren d Killmer. I think the vote was som ething like 95 to 18.

M r. M ezvinsky. In fav or of it ?

Reverend Killmer. In fav or of unc ond itional amnesty.

Mr. M ezvinsky. Th an k you.

Mi\ Ch airma n, in view of our t ime limits, tha nk you. and I have no 

oth er questions.

Mr. K astenmeier. The comm ittee expresses our ap pre cia tio n to you. 

Dr. Cary, and to your colleagues for your appeara nce this morning. 

It h as been very helpful.

At this poini the committee will sta nd in recess until 1 :30 th is af te rnoon, at which time we will reconvene to hear Mr. Fr ed Da rling, 

rep res enting the Non-Com missioned Officers Association, and Mr. 

Ly nn Cavin , Imme dia te Fa st National Comm and er of the Marine 

Corps Leag ue. Unt il th at time the committee sta nds in recess.

[Wher eup on, at 12:20 p.m., the subcommittee recessed to reconvene 

at 1:30 p.m. the same day.]

AFTERN OON SESSION

Mr. Drin an. The subcomm ittee will please come to ord er. We will 

resum e the h earin gs on amnesty th at went into a b rie f recess when the 

Members ha d to go to the floor.

Op ening this afternoo n’s testim onv will be Mr. Fr ed E. Da rling, 

executive coord ina tor. M ilitary and Ve terans Affairs, the Non-Com ­

missioned Officers A ssociation of the Un ite d State s of America, and 

with him is Mr. Lynn C avin , imm edia te pas t natio nal c omm ander, the 

Marine Corps League.

Mr. D arlin g, please proceed as you wish.

TESTIMONY OF FRED E. DAR LING , EXECUTIVE COORDINATOR,

MI LITA RY AND VETER ANS AFFAIRS , NONCOMMISSIONED OF FICERS ASSOCIATION OF THE U NITED STATES OF AM ERICA : ACCOMPANIED BY H. LYN N CAVIN, IMME DIA TE PAST NATIONA L

COMMANDER, MA RINE CORPS LEAGUE

Mr. Darling. Mr. Ch airma n and members of th e dis tinguish ed subcomm ittee.

The Non-Commissioned Officers Association o f the Un ite d State s o f 

Am eric a, NCOA, and the Marine Corps Lea gue welcome the opp or-
395

(unit y to tes tif y in opposition to any and all leg isla tive pro posals 

introd uced in Congres s that will gr an t amn esty or ear ned immu nity 

to dr af t eva ders a nd arm ed forces d ese rters of the Vietn am conflict.

The positions of the XCO A and the Marine Corps League were 

unanimously ma ndate d by their membership assembled in convention. 

The association, rep res entin g 160.000 plu s members, is the wor lds 

larg est enliste d military association, and its mandate was ratifie d on 

the. 20th day of Ap ril 1973. at San Ant onio. Tex. T he league, congression ally ch arter ed and composed of 16.000 active, ret ire d, reserve and 

veteran Marine s, ratified its resolution in Au gust 1973. at Miami. Fla.

The XC OA ’s and the Marine Corps Leagu e's viewpoints are contained in t he attached position pa pe r ava ilab le for the s ubcomm ittee's 

perusal at its earlies t convenience. The pa pe r was prepared by Mr. 

“M ack" McKin ney, a ret ire d ser geant majo r of Marines, who is the 

NCOA direc tor of legisla tive aff airs and the league's natio nal legislative officer.

The comments con tain ed the rei n e xpand somewhat on a co mm entary 

delivere d by Mr. McKinney on a recent te levision newscast or iginating 

from W TO P-T V , Chan nel 9, Wa shing ton . D.C. Mr. M cKi nne y ottere d 

these rem ark s on Fe br ua ry 5. 1974, in reb uttal to a prev ious "News 9 

com mentary by Mr. Hug h Sid ey on Ja nu ar y 27, 1974, advocating 

amnesty. It is also an exh ibit to the att ached position pap er.

W ith your kind perm ission, the com me ntary will be rea d at this 

time.

The Xon-Com missioned Officers Associatio n of the U nited S tates of 

America, composed of 160.000 p lus noncommissioned and petty officers 

of the F.S. Arm ed Forces, 85 percent of which are on active du ty as 

career-enlisted military members, is opposed to gr an ting amnesty to 

those men who avoided the dra ft or des erte d the arm ed forces du rin g 

the Vietnam conflict.

We have listened to man y app eals, e ve rything from, “ Th ey were too 

young to realize the e rror of the ir ways ," to, “It has been done before, 

so let's do it again ." Bu t to any and all please, we can only say, 

“H um bug."

These men are criminals, jus t as c ert ain as one who c omm its or contribu tes to mu rde r, or at least homicide. Th eir refusa l to be dr afted, 

or to go into or rem ain in combat, caused oth ers to be dr afted, sent 

into combat as th eir replace ments, and possibly wounded, maimed, or 

killed.

There is only one way to deal with thes e men, and th at is throug h 

due process of the law. They may re tu rn and lend th ei r pleas of 

exten uatin g circums tanc es—if there are any —to th eir cases before a 

competent jud ge a nd jury. If th e la tter fee ls they are o r a re not crim inally liable, th en justice has been accomplish ed.

But to let them retu rn to the country the y hav e shu nne d, and possibly serve in the arm ed forces when the re is little or no chance of 

being sho t at by an enemy, is a s lap in the face to the m illions of m en 

who were dr afted, who were wounded, who were maimed , o r who were 

killed in a bloody, un po pu lar war.

To fu rther excuse these men because of yo uthful age bears no ra ­

tionale to recent congressional action allowing 18-year-o lds the righ t 

to vote. If the y are old enough to vote, they are old eno ugh to serve 

their Xation.
396

The good God calls upon us to be merciful—to forgive our trespassers—but he did not mention amnesty. Our mercy and our forgiveness can be granted through the present judicial system.

In conclusion the N('() Association and the Marine Corps League 

respectfully extend th eir appreciation for the Chair’s indulgence and 

sincerely hope that the distinguished subcommittee will uphold the 

honor and dignity of our Nation’s military and veteran patriots by 

sending House Concurrent Resolution 144 or 385 to the full committee 

for ratification.

Mr. Cavin and T now stand prepared to answer any questions from 

the subcommittee’s membership.

Mr. Drixax. Thank you very much, Mr. Darling, for your testimony. Without objection, if you so desire, we will insert in the record 

at this time the document that you brought with you in an attachment 

to your testimony.

Mr. Darling. Yes.

Mr. Drixax. Without objection, then, it is so ordered.

[The document referred to follows:]

T h e Non -Com m is si oned Off ic ers Ass oc ia tion of th e U ni te d Sta te s of

A me ric a

po si ti on pa pe r on “a m n esty”

By now, almost everyone inte rested in or knowledgeable of the issue can provide the dictionary definition of the word “amnesty :” (1)—a general pardon, 

especially for political offenses, (2 )—release from punishment, and (3 )—forgiveness.

Since the issue is w heth er or not the federal government should grant amnesty 

to those men who evaded the draft or deserted from the Armed Forces during 

the Vietnam era. we should examine each of the definitions and see how they 

rela te to these men.

First is “a general pardon, especially for political offenses.” Since the Vietnam 

war was a product of both political parties, it requires a stre tch of imagination 

to relate a political offense with the act committed by the offenders. Their requirement under the law was to serve or to continue to serve a term of active service 

in one of the U.S. Armed Forces. Whether or not they were eventually to serve 

part of that commitment in a hostile environm ent, of which was appalling to 

them, was a ma tte r of assignment. Some would have been assigned to Vietnam, 

some would not. In any case, preinduction selectees had the choice to claim 

conscientious objections prio r to or after en tering the Service. Inductees, once in, 

had a choice before or after being assigned to Vietnam.

The second definition, “release from punishment,” involves b ut a small number 

of the group of thousands we are dealing with on th e issue. Therefore, it appears 

that "forgiveness” is the term we need to discuss as the main topic—“Should 

we forgive or not forgive?”

On th e legal side of the fence, it is wrong for the legislative branch to provide 

forgiveness, since mercy is normally a product of the judicial branch of our 

federal government. The laws are made by Congress and enforced by the judicial 

procedure. When one trie s to cross over and atte mpts to obstruct the other in 

its due process, then the “checks and balances” placed into the Constitution by 

our forefathers becomes a mockery. Only our Chief Executive and certain Judiciary officials have the power under the Constitution to gra nt forgiveness or 

mercy. (Except for certain offenses listed in the XIV Amendment, Section 3.)

One cannot ratio nalize mercy without justice. There would be no justice in 

allowing all draft evaders and Armed Forces deserters to return to the United 

States free of all charges and, particularly, to stan d alongside their veteran 

brothers with the though t that they were j ust as right as those who served their 

Country.

The men who evaded induction into or deserted from the Armed Forces should 

be required, as is now law, to face the judicial process the legislative branch of 

our federal government has seen fit to offer those who defied the Selective Service 

Act or the Uniform Code of Military Justice.
397

To grant ‘•amnesty” to these men. despite the contrary , is setting an example 

th at is unparalleled in the history of English-speaking nations. With the exception of the acts of amnesty afforded during the Coolidge and T ruman adm inistrations, all others granted in England and the United States were the results of 

civil strife. (England, by the way, h as not granted furth er amnesty for over two 

hundred years. Its last act was offered to participants of the Jaco bite rebellion 

in 1747.)

The Coolidge and Trum an grants, the exceptions noted in the preceding pa ragraph, hear no relation to the present issue. Coolidge offered amnesty to those 

who deserted the Armed Forces after World War I. Presiden t Truman’s pardon 

included only a minute number of offenders the majority of which had alrea dy 

been processed under the law.

Even Lincoln’s g rant of amnesty came during the war, not afte rwa rds. Those 

pardoned had to return to the Armed Services and continue to serve while the 

Civil War was still being fought. Many subsequently saw hostile action.

In all cases of amnesty noted in U.S. history, as well as those granted in 

England and France, two im portant fac tors ap pe ared :

(1) All participants were not included in the grant, and/o r

(2) All participants were involved in civil strife.

So history, if we wish to use it as a guide, would prohibit the granting of 

amnesty to all Vietnam era draft evaders and Armed Forces deserters. Likewise, the U.S. Constitution would proh ibit the act from being a product of the 

legislative branch. This then leaves the moral side of the issue to discuss.

As for the lat ter, many words can and may be expressed for and against 

amnesty. Since the Non Commissioned Officers Association of the United States 

of America (XOCA) is opposed to general amnesty or “earned immunity,” it 

presents the following exhibits as pertinen t to it s position.

Appendix I is a fictional two-act play th at might very well be a tru e incident 

if general amne sty is granted, and Appendix II is a speech w ritten and delivered 

by an American citizen, Mr. Saul L. Penn. Both exceptionally well wrap up the 

XCOA’s feelings on the moral question.

Appendix II I as a commentary by Mr. Mack McKinney, XCOA Director of 

Legislative Affairs, and it summarizes the Association’s position.

A PI .A Y IN TW O AC TS

Act I

Tlie date is 1975. Congress, through enacted legislation, has granted amnesty 

to thousands of Vietnam era draft resisters. They are now back in the United 

States, and one draft res ister {D.R.) is sitting in a bar on a stool nex t to a 

veteran {VET ).

D.R.— “Hey, Mac. are you a Viet V et?”

VET—“Yeh ! Served two years in the Army with 13 months in Vietnam durin g 

the Tet Offensive.”

D./f.—“Rough. M ac! Were you draf ted ?”

VET—“Sure. Weren’t you?”

D.R.—“Well, they tried to, but I took off to Canada. Xo way in hell they were 

gonna’ get me in the Army and have some gook shoot my b utt off.”

VET—“You mean you're one of those ‘draft dodgers?’ What did you get when 

you came back to the States ?”

D.R.— “Xothin", Man. All the folks were tickled to death and even the judge 

up at the courthouse said he was glad I w as back. Congress forgave us, you know. 

The wa r was immoral, and those guys up the re in Washington knew it. Th at’s 

why they passed the amnesty law. ‘Forgive and forget,’ they said. Alwiut time 

too. It was pure hell having to live out of the country with out the family—and 

like a damned criminal. Don’t you agree?”

VET—“Maybe! Vietnam wasn't no lied of roses. ‘Course I didn’t get wounded, 

or maimed or killed, or get captured by the XVA like a lot of the guys did. Rut 

there was those damned malaria infested jungles, rice paddies, and never-ending 

mountains. Then when I came home, there weren't any para des or cita tion s and 

no jobs. My folks were glad I was back, but the judge told me I ought to get a 

job before I got into some kind of trouble. S.eemed to me that people just did n't 

give a damn about us or the w ar.”

D.R.—“Then why did you let them draft you for?”

VET—“Well. I thought it was the right thing to do. My dad told ine it was 

every American’s duty to serve his God and country. Then there was the draft 

law too. But now I don’t know. I just don’t know !”
398

Act II

The (late is 1995. The United States is again at war. Congress lias revived the 

dra ft induction auth ority, and thousands of young Americans are being called 

to arms. The Vietnam veteran (VET) is at home. His oldest boy (fe’OA ) enters 

the family room and advises his fat her that he is being draf ted.

VET—“Forget it. Son. Take off and go to Canada instead .”

SON—“Hey, Dad, it ’s the law that I go. They could lock .me up in prison and 

throw the key away if I didn’t. Besides, my country needs me.”

VET—“Listen kid, don’t worry about it. The whole damned thing is immoral 

anyway. You can go to Canada, or wherever you want, stay there until the wa r’s 

over, then wait until some compassionate legislators call for amne sty again. 

They’ll get it through like they did back in '75, and you'll be home safe and 

sound.”

SON—“But Dad, you served in the Vietnam war. didn't you?”

VET—“Yeh, but one fool in the family is enough. Now pack your clothes. 

I'm drivin’ you to Can ada.”

appendix II 

Amnesty

A general pardon, especially for political offenses.

Release from punishment.

Forgiveness.

So does Webster define amnesty.

Ladies and gentlemen. We have been blessed lately with the return to our 

shores of several hundred men who were prisoners of an antago nist of ours for 

up to 10 years. Notice I said “antago nist” and not “enemy,” for the thesis of my 

talk does not depend on the status of our recent conflict w ith North Vietnam as a 

war or anything else, nor. I contend, does it depend on one's beliefs as to the 

validity or morality or justification for tha t conflict.

The question I wish to discuss with you tonight is whether the several thousand 

young men who have illegally left our country to avoid service in the armed 

forces, out of a professed conflict with the ir beliefs, not to mention the risk of 

physical injury, should l>e welcomed back to the protections and benefits and 

opportunities of our society now that the danger has passed.

We are told by some that thi s would be the compassionate thing to do, by 

others that it is the moral thin g to do, and by still othe rs that th ere is precedent 

from previous wars in our history for doing ju st this thing.

Well, I would not want to stand here tonight accused of a lack of compassion. 

Indeed, I have compassion for the thre e million young men who did set aside 

years from the ir lives to serve our country in thi s conflict. I have the utmost 

compassion for the parents and wives and children of those men who served and 

will never return , and for the men who spent years in captivity, not knowing 

when the ir bondship would end, and still, on being set free, expressed their delight 

and pride in their country's strong stand.

As for morality, I challenge the argum ent tha t to serve this country, even 

when you believe its cause to be wrong, is immoral. I challenge those who say 

that to do so puts us in the same class as the butchers of Nazi (lerm any or wartime Japan. Ours is a nation of law, laws created and established by ourselves 

through our elected representa tives, not handed to us by some omni]>otent and 

untouchable despot. Some of these laws will be poor, and some will commit 

injustice. But as we learn of o ur mistakes we correct them by democratic processes. And as we lay claim to the protection of these laws, so m ust we agree to 

abide by them or be prepared to pay the consequences for their infraction.

On the ma tter of precedent, I have found no parallels sufficiently close to the 

present situ atio n to serve as guidelines. Lincoln absolved dese rters from the 

Union ranks who would rejoin the ir units and serve out the ir enlistme nts; but at 

the time they might still have faced the risks of battle. Andrew Johnson extended 

clemency to the whole south, but he had a divided natio n to pull together—and 

the men he forgave felt strongly enough about the ir cause to bear arms in its 

support. Harry Truman ’s Amnesty Board trie d 15,000 WWII deserters, and forgave 10% of them on religious grounds, but none for intellectual, sociological, 

or political reasons.

Different circum stances do make comparisons w ith the past difficult; but going 

back to the Civil War for a moment, let me quote an excerpt from an essay of 

the times by John Stu art Mill, written in 1862.
399

“Wa r is an ugly thing, but not the ugliest of thin gs; the decayed and degraded 

sta te of moral and patriotic feeling which thinks that nothing is worth war is 

much worse.

A man who has nothing for which lie is willing to light, nothing he cares about 

more than his own personal safety, is a miserable cre ature who h as no chance 

of being free, unless made and kept so by the exertions of better men than 

himself."*

♦Joh n S tu art Mill, “T he Con te st in Ameriea,” Fruiter’s Mag azine, Feb ru ar y. 1SG2.

[Mr. Sa ul L. Pe nn is an America n citiz en an d a sc ie ntist re sidi ng in Bethe sd a, Md. Th e 

spe ech above was de liv ered to a loc al T oas tm as te rs In te rn ati o n al Club on th e da te no te d. ]

Ladies and gentlemen may I respectfully suggest tha t those better men today 

have recently retu rned from Vietnam. Certainly, appeals for amnesty should be 

considered on an individual basts; but as a general principal, in view of the type 

of government th at we have, the illegal avoidance o f service in the armed forces 

of the United States should not be excused.

Saul L . P e n n .

a pp en dix I I I

The Noncommissioned Officers Association of the United States of America, 

composed of 160,000-plus noncommissioned and petty officers of the United States 

Armed Fo rce s; 85 percent of which are on active duty as career-enlisted military 

mem bers; is opposed to granting amnesty to those men who avoided the d raft or 

deserted the Armed Forces during the Vietnam conflict.

We have listened to many appeals—everything from, “They were too young to 

realize the error of the ir ways”—to, “It has been done before, so let’s do it 

again.” But to any and all pleas, we can only say, “ Humbug!”

These men are criminals—ju st as certain as one who commits or contributes 

to murder, or at least homicide. Their refusal to he dra fted , or go into or remain 

in combat, caused others to be d raft ed, sent into combat as the ir replacements, 

and possibly wounded, maimed or killed.

There is only one way to deal with these men, and tha t is through due process 

of the law. They may return and lend th eir pleas of extenu ating circum stances— 

if there are any—to the ir cases before a competent judge and jury. If th e lat ter 

feels they are or are not criminally liable, then justice has been accomplished.

But to let them return to the country they have shunned, and possibly serve in 

the armed forces when there is little or no chance of being shot at by an enemy, 

is a slap in the face to the millions of men who were drafted , who were wounded, 

who were maimed, or who were killed in a bloody, unpopular war.

To furth er excuse these men because of youthful age bears no ratio nale to 

recent congressional action allowing 18-year-olds the right to vote. If they are 

old enough to vote, they are old enough to serve their Nation.

The good God calls upon us to be merciful—to forgive our trespassers, but 

He did not mention “amnesty.” Our mercy and our forgiveness can be granted 

through the present judicial system.

[The above commentary was delivered by C.A. Mack McKinney, Director of 

Legislative Affairs, NCO Association, on WTOP-TV, Channel 9, Washington. I).C., 

Tuesday, February 5, 1974, in answer to a Hugh Sidey commentary advocating 

Amnesty on January 27, 1974.]

Mr. Drinan. Does Mr. Cavin want to say anything at this time?

Mr. Cavin. No. sir.

Mr. Drinan. Thank you very much.

I yield to the distinguished gentleman from Illinois, Mr. Railsback.

Mr. Railsback. I just want to thank you for coming and for giving 

us the benefit of your organization’s feelings.

Do I understand that your organization would take the same position on conditional amnesty as it does on absolute amnesty?

Mr. Darling. Most assuredly.

Mr. Railsback. Thank you.

Mr. Drinan. I am,pleased to yield to the distinguished gentleman 

from New Jersey. Mr. Sandman.

And I am glad to see that our chairman. Mr. Kastemneier, is present. 

I will yield the chair to him in a moment.
400

Mr. Kastexmeier. I would ask the gen tlem an fro m Massachusetts 

to ret ain the cha ir. It has been pa rt of my policy to encourage oth er 

mem bers to parti cip ate in presiding.

I would like to ex tend a warm welcome to o ur witnesses. I appre ciate 

th eir views. I am pleased th at you could come here o n behalf of your 

constituency bodies.

Mr. Drix ax. 1 have jus t one ques tion.

W ha t was the motivation for taking up the question of amn esty at 

your las t conv ention?

An d second, was there any dissent from the sta tem ent th at was 

adopted ?

Air. Cavix. None whatsoever. It was una nim ous by the delegate s 

at the national convention.

Mi-. Drixax. Is th is the firs t statem ent th at you have mad e on 

amnesty?

Mr. Cavix. No, sir. There was one made a year ago, the year 

previous to this in Au gust 1971.

Mr. Drixax. All rig ht, fine.

AYe th an k you very much for coming and we will make this a 

pa rt of the record.

Th an k you very much , sir.

Mr. Darlixo. Th an k you.

Mr. Drix ax. Ou r n ext w itness this afternoon will be Mr. Abe S imon 

of New York.

Mr. Sim on's son was inv ited to ap pe ar befor e this com mittee today, 

li e was a m ember of the U .S. Arm ed Forces who des erted in 1968 and 

lived in Sweden fo r 4 yea rs, and th erea fter in Canad a. Mr. Lewis 

Sim on ret urned to this country late las t year and surre ndere d to the 

Fed eral autho rities at th at time.

Th e subcomm ittee fe lt th at Mr. Lewis Sim on was uniquely qu ali ­

fied to tes tif y on the ap pli catio n of this legisla tion to those liv ing in 

exile, and fo r th at reason the subcommittee wrote to the Secre tary 

of Defense on Fe brua ry 28 an d asked th at the Secre tary make the 

pr op er arr angeme nts fo r Mr. Lewis Sim on to ap pe ar as a witness 

before us today.

On March 4, the Ac tin g Gen eral Counsel of the De partm ent of 

Defense rep lied to the comm ittee, stating th at “In view of his status , 

and the po ten tial fo r preju dicin g his subsequ ent tria l, it would be 

in ap pr op ria te fo r the De pa rtm ent of Defe nse to arrang e fo r his 

appeara nce.”

Copies of th at corresp ondence will be inserted into the record w ith ­

out objection at this point.

[T he documents referre d to follow :]

Congress op th e United States, • 

Com mitte e on th e J udicia ry,

House of Repr ese ntatives, 

Wa shington, D.C., Fe bru ary 28, J 974-

Hon. James R. Schlesinger,

Secretary of Defense, Department of Defense,

Washington, D.C.

My Hear Mr. Secretary: The Subcommittee on Courts, Civil Liberties, and 

tlie Adm inistration of Jus tice of the House Committee on the Judiciary has 

scheduled hearings on March 7, 8, and 11, 1974, on pending legislation relating
401

to the subject of amnesty. The measures involved are H.R. 236, H.R. 674, 11.R. 

2167, 1I.R. 3100, H.R. 5195, H.R. 10979, H.R. 10980, H.R. 13001, II. Con. Res. 144, 

and II. Con. Res. 385. Among th e people who would be affected by the passage of any of these measures are American exiles living abroad. One of the witnesses suggested to this 

Committee is a young man who could make a significant contribution to the debate 

on these measures. He is Private Lewis H. Simon, 125-36—8208. Mr. Simon 

deserted from the U.S. Army and lived as an exile in Sweden for many years. 

He subsequently visited with many groups of exiles in Canada and Europe and 

may be uniquely qualified to represent the views of American exiles toward this 

legislation. This Committee would like to receive the testimony of Mr. Simon on Monday, 

March 11 at 10:00 a.m. At the present time he is confined a t the Fort Dix Area Confinement Facility at Fort Dix, New Jersey," a waiting tri al on charges of 

desertion. Would you please have the proi>er arra ngemen ts made so that Mr. 

Simon may present oral testimony to the Committee on that date respecting this 

pending legislation.

Sincerely yours,

Robert W. Hastenmeier,

Chairman, Subcommittee on Courts,

Civil Liberties, and the Administration of Justice.

General Counsel of the Department of Defense,

Washington, D.C., March ■'/,197}.

Hon. Robert W. Hastenmeier,

Chairman, Subcommittee on Courts, Civil Liberties, and the Administration of Justice, Committee on the Judiciary, House of Representatives, Washington, D.C.

Dear Mr. Chairman : The Secretary of Defense has asked that I reply to your 

letter of February 28 requesting tha t Priva te Lewis II. Simon appear before your Subcommittee. As you noted, Private Simon is now in confinement and awa iting 

trial. In view of his status, and the i>otential for prejudicing his subsequent trial, 

it would be inappropriate for the Department of Defense to arrange for his 

appearance, in response to your invitatio n.

Sincerely yours, L. Niederlehner,

Acting General Counsel.

Mr. Drin an. We regret that Mr. Lewis Sim on cannot testify before 

ns th is aftern oon. In his place, we nonetheless are pleased and privileged to receive the testimo ny of his father, Mr. Abe Simon, who is 

here.

Mr. Simon, would you please procee d ?

TEST IMON Y OF ABE SIMON ON BEHA LF OF LE WIS SIMON, ACCOMPA NIED BY TOD ENSIGN, COUNSEL FOR LE WIS SIMON

Mr. E nsig n. I f I may, my name is Thom as En sig n. I am an att orney 

for Lewis S imon and w ork with t he Safe Re turn Amnesty Committee. 

I would like to make a brief statem ent abou t the case because we are 

quite concerned about the m ili tary ’s position, and we want to really 

clarify wh at we see to be the tru e sta te of affairs.

The pretense of the military that they have been conc erned with 

defen din g Lewis ’ con stitution al rig hts, his rig ht to a fa ir tria l, is 

ju st th at. We regret it. We wan t to place in the record the fac t th at 

since Lewis Simon has been confined pending tr ia l at Fo rt Dix , he has 

been placed in solitary confinement on three occasions. He is in soli-
402

tary confinement right now. Access to defense counsel, defense clerks, 

and other legal assistance has been Refused on several occasions. We 

have an investigation pending with General I’ruitt at this time, and 

I think it is just unconscionable at this time that the Pentagon can 

posture itself as being concerned about this young man's rights or possible prejudice which might stem from his testimony today.

Tn listening this morning to some of the others and the statements 

of the former Secretary of the Army particularly, it more than ever 

makes me anxious to hear the testimony of men like Lewis Simon. 

To have Secretary Froehlke sit here and tell us that the war in Vietnam is somehow to be forgotten, that the things which motivated 

thousands of men like Lewis to leave, to resist at great possible cost, 

should be forgotten and to tell them this is nothing, this is to be forgotten and we must move forward and reconcile our country, is an 

outrage, and I only wish that Lewis could be here today to confront 

this kind of reasoning directly.

Abe would like to make a statement from Lewis, which he would 

have given had lie been here.

Mr. Drinan. One question. His being in solitary at this moment 

is not related to this committee's investigation ?

Mr. E nsign. I do not have the information to answer that with any 

conclusionary evidence. T think the pattern of the past few weeks has 

shown tha t Lewis’ position about the war, his talking to the other 

men in the stockade, has been the source of the harassment.

Mr. Drinan. Thank you.

At this point before you begin, Mr. Simon, T will announce the rule 

for the entire afternoon. We hope that all witnesses will keep their 

statements substantially under 15 mintues, because we do have nine 

witnesses scheduled for this afternoon.

Mr. Simon, you may if you so desire place your statement in the 

record at this point and speak to us about the point you wish to bring 

up. Will you proceed ?

Mr. Simon. Thank you, Mr. Chairman. I am here in the dual role 

as a father of Lewis Simon and also as a spokesman fo r him because, 

as you know, he has been denied the right to speak. Of course, I am 

deeply involved personally with him. I try to be completely objective 

and try to see the viewpoint of various other organizations.

One thing struck me very hard, and tha t was the statement bv the 

Noncommissioned Officers Association that if they are 18 and old 

enough to vote, they are old enough to fight. You might as well say 

they are old enough to think, also. And these boys have thought this 

thing out. They have devoted years contemplating what the effect of 

their actions would be.

I believe tha t it took more courage to do what they did than to 

submit to what they thought was not proper.

And before I read Lewis’ letter, if I may. I would like to explain 

my own viewpoint. I, too, have served more than 3 years in European 

operations.

When Lewis first deserted, my mind was completely military and 

similar to those who spoke before we did. Not until years later, not 

until 2 or 3 years later, did I realize that what these boys did, they did 

with the full conviction tha t what they did was right. They knew 

and felt that this was an immoral war.
403

I can give you examples of my own son. I am deeply involved 

with him. li e was sta tio ned at Fort Jon es, a mem ber of the Army 

Security Agency, and he was cleare d fo r op era tio n wi th the Army 

Security Agency. An d whe n he did desert—a nd I th in k th at was an 

im po rtan t po int—that was a gr ea t blow to the Army , and th at is one 

of the reasons he is being harassed now. And he is being harassed in 

the stockade. Alm ost any ins ign ifican t detai l, the sli gh tes t vio lation 

of any reg ula tio n, imm ediately imposes a deep sentence upo n him. He 

is im mediately thrown in to the hole, into seg regatio n, li e is being m ade 

an exam ple.

Th ere is no justice in this at all, in my opin ion. An d I will 

tak e anoth er momen t ju st befo re I rea d his statem ent.

I also feel th at thro ug h his e fforts we here back home fully realize 

wha t has gone on. Over the years, we a ll went alo ng m ind ing our own 

business, doing ou r own jobs. Only thro ug h the eliorts of thes e boys, 

by th eir acts, did we realize wh at had been g oin g on with th e P entag on 

papers, whi ch reve aled it. The shabby 1964 Gulf of To nk in reso lution was reveale d, and I th in k all these things have backed these 

boys up.

I will now proceed wi th his sta tem ent, if I may.

Mr. Drin an. Go ahead.

Mr. Simon. Th is is the sta tem ent of Pv t. Lew is Simon. li e is at 

pre sen t in the stoc kad e a t Fort D ix aw aitin g c ou rt- martia l, which will 

be held next week, March 18.

“I would like very much to have appeare d in person before you 

tod ay, bu t the Defense De partm ent pre ven ts me from doing so. Afte r 

thr ee months of pr etria l imprisonm ent in the Fort Dix Sto ckade— 

being subject ed to threats and intim idati on , forced solitary confinement, and being denied the due proce ss of law—it did not surp ise 

me th at the Pe ntagon refu sed Ch airm an Ka ste nm eie r’s request th at 

they release me to ap pe ar befo re yo ur Subcom mittee today.

“W hil e mem bers of Congress and officials from the Pe ntag on dis ­

cuss variou s amnesty proposals, it should not be forgotten t ha t, at the 

same time, the military continues to hu nt, imprison , and permanently 

stig ma tize tho usa nds of us who ref used du ty in Vietnam . Th is continued persecutio n is the mili tary 's response to amn esty, just as their 

denial of my rig ht to tes tify here tod ay—out of a pho ney concern 

about possible ‘prej udice ’ so my case—is in itself an elo quent state ment 

as to their views of the issue.’’

Again , quoting L ew is:

“Next week I will be court -m art ialed. Like all those before me who 

have passed throug h the military system of justice , the result of my 

tria l has alr ead y been ass ure d: I will be fou nd ‘guilt y’ as cha rged, 

imprison ed, and eve ntually given a de bilitating less-than -honorable 

discha rge .’’

He asks, “W hy ?”

The an swe r is sim pl e: “Because I am one o f the ha lf-mi llion or dina ry 

Am eric an G I’s who da red to cha llen ge U.S . policies in Indo china— 

policies which have des troy ed the lan d and peoples of So uth eas t Asia 

and ha ve claimed th e lives of 53,000 youn g men like myself.
404

“Due to the n atu re of our role in Ind och ina , which both civilia n and 

military polic ymakers co ntend was in t he Na tio n’s best inte rests, opp osition to the war grew to unp recede nted proport ion s. The t ru th about 

our role finally reached the Am erican p eople throug h re turn ing Vietnam veterans, inform ed elected officials, revelations of various My 

Lai ’s, th e Penta gon Pa pe rs, and press correspo ndent s whose rep ort age 

went b eyond th e official ve rsion s con cerning the war.

“The tr uth about the war reach ed me ea rlier th an it d id most people, 

pro bab ly due to my bac kgrou nd in Asian stud ies. I questioned our 

presence in South eas t Asia, and my knowledge of their rich history 

and cu ltu re mean th at I could not accept the m ili ta ry ’s att em pts to 

po rtra y the Vietnam ese as somehow less th an huma n.”

An d if I migh t dev iate from thi s let ter a momen t, just t o make t his 

clea r, af te r Lewis received his degree in linguistics, his specialty was 

Chinese and he und oubtedly would have been an interp reter f or intercepti ng Vietnam ese messages. He then attended the Un ive rsity of 

Ha waii whe re he lived with orien tal peop le and slept in their homes 

fo r 2 years, and he received his ma ste r’s degree in ling uistics. After 

th at he went to For mo sa, T aiw an, and sp ent 2 ye ars ther e living w ith 

orien tal s in t he ir homes, slee ping there, e ati ng the re, and tha t I believe 

is why he did wh at he d id more th an anything . T he fact t hat the A rmy 

considered these people as gooks. less than sub hum an, and he who 

ha d spent so much tim e with them and knew them per son ally, of 

course felt otherwise. I believe th at th is was one of the spurs th at 

induced him to do w hat he did.

Now, i f I may go back to his le tt er:

“I refuse d to serve in Vietnam because I knew the war to be su rrou nded by official lies and dis tor tions th at stag gered th e ima ginatio n. 

Ev en now, more revelations are brou ght to light throug h the continu ed 

inv estiga tions of certain gov ernment agencies and th ei r pro gra ms for 

Ind och ina .

“I n time, with or witho ut the early s up po rt of o ur natio n's leade rs, 

the Am erican people will come to realize the trut h about resistance to 

the Ind ochina War. In lig ht of the persistent Ad ministrat ion cam ­

pa ign to dis tor t our motiva tions, this trut h will be learned much the 

same as the tru e n ature of the w ar came to be known : thr ou gh the long 

step bv step process of counteract ing official lies and dis tor tions with 

the actual inform ation.”

“T hen, people will un derst and that I. fo r e xam ple, went to Sweden, 

not as an immigra nt or e xp atr iat e, but as a political exile: one amo ng 

one million victims of co rru pt and criminal U.S . wa r policies.

“I n a few mon ths, my wife Monica—

An d tha t is not my wife, but Lewis’ wife—

“. . . will give birth to our first child. W hen he is old enough to re ad 

about the V ietnam war. he will und oubtedly view it as the most sordid 

perio d in his na tio n’s his tory—unless fu ture Vie tnam-style policymakers somehow manage to involve us in an even more dish onorable 

wa r within a single gen era tion, an eventua lity , I sincerely hope we 

who have resisted have help ed to preven t.

“Does this mean t hat all of us who resisted the Vietnam war would 

not defend our country should the situatio n call for it?
405

“('ertainly not. It means simply that we will not allow ourselves 

to be placed into the situation of saying to the entire world: 4 was 

only following orders.’

‘•With all my heart, I wish to rejoin my family, my friends, and 

my neighbors. But 1 am not a criminal and cannot accept conditions 

for this right—especially when they are dictated bv the very same 

persons responsible for the incalculable suffering and destruction 

brought by this war.

“Ilave these persons not already done enough to corrupt, destroy, 

and divide through their Vietnam policies?

“The proposals for a conditional amnesty, which in most cases are 

initiated and sponsored by supporters of the war, at best reduce 

amnesty into a matter of punishment and redemption, which only 

serves their own interests and the interests of others who somehow 

profited from our national suffering over Vietnam.

“Only one kind of amnesty can end this vicious cycle of victimization: a universal, unconditional amnesty for all those who have 

resisted the military and the draft during the Vietnam era.’’

Tha t is the end of his letter.

Now, if I may also say, I was in Sweden 2 years ago a fter Lewis 

had deserted for 3 years. At the beginning I did not want to see him. 

I did not care to see him at all because I thought he had done something which did not agree with my policies then. As I told you, I 

changed my policies.

I have seen many of the people th at he was with and I have gotten 

their viewpoints, and I can say sincerely th at they too are sincere in 

their opinions. They took the only step tha t was open to them in the 

Army, the only possible step, a complete disassociation from this evil.

I also saw him 2 years later in Canada a fter he had married Monica. 

We had a wedding reception for him in Canada and there too I spent 

time with him and many of the war resisters in Canada. I received 

their viewpoint, too. I feel deep down th at should this country ever 

be invaded or attacked, they would never hesitate, they would not 

hesitate even a moment, in the defense of their country.

Mr. Drinan. Thank you very much, Mr. Simon.

I yield to Mr. Kastenmeier for questioning.

Mr. Kastenmeier. Yes, thank you.

I want to say in this connection about the subcommittee’s desire 

to have your son testify, we had concluded tha t this testimony would 

have been very useful to the committee and so we requested he testify. 

We also, as the gentleman from Massachusetts has indicated, wrote 

to the Defense Department requesting his attendance.

Mr. Simon. And I thank you for it.

Mr. K astenmeier. This they did not agree to because of the reasons 

cited, the interference with his trial. We decided not to resort to 

extraordinary process to compel his attendance.

I will also say tha t this subcommittee has, from time to time, received the statements of those who could not be present. On newsmen's privilege legislation, for instance, we received the statement of 

a reporter in New Jersey in jail, who desired to speak on the question 

of newsmen’s privilege.
406

Th is subcomm ittee also de als with prisons, and yon can well imag ine 

th at ma ny of the prison ers most effected cou ld no t ever be here in 

Wa shington to te stify on th eir own indiv idu al pa rt.

I sug ges t th at vour son’s words are nonetheless eloq uent or to the 

poi nt by vir tue of his absence and I am mind ful th at it may be commented th at ma ny of those affected are not present. We have had 

testimony from one who served, I think 19 months , in prison for a 

selective service violation, and oth ers who had less th an hono rable 

discha rges and are affected thereby, bu t we could not have all of those 

most affected. We will receive some statem ents fo r inclu sion in the 

reco rd of those pre sen tly in exile or at least whose presence is made 

impossible on the question of amn esty. And so I think it is only fa ir to 

comment in th at conn ection, this committee has made an att em pt to 

he ar fro m those most affected by this legisla tion, and second, even 

thou gh they cannot be prese nt act ually 'in this room, th ei r statem ents 

will be received and can nonetheless be effective.

Th an k you.

Mr. Drin an. Tha nk you, Mr. K aste mneier .

I yie ld to Mr. Railsback.

Mr. R ailsback. I have no questions. I wa nt to th an k you f or coming.

Mr. Simon. Mr. C hairm an, if I may say something else?

I alm ost feel 1 should be in the gro up tha t was here before me. I was 

a mem ber of the Ve terans of Fo reign W ars fo r 15 yea rs, too. I often 

won der—and I specula te on this to myself—‘if I was no t involved, 

would I tak e this effort, would I care, would I give a d am n abo ut the 

oth er boys?

I have searched my m ind, too, and I feel tha t indeed I would. I th ink 

many people by be ing neutr al are simply avoiding the issue com pletely.

It has become a moral d ilem ma an d they seem to exorcise themselves 

by s aying aloof from it, an d I th in k that comprom isin g position, which 

I find myself in, has b roug ht ab out a complete ch ang e in my mind.

I was—well, I will not sa y g ung -ho, but I did serve quite a bi t, b ut I 

hav e c han ged completely.

I realize th ese boys b roug ht home to us the message of act ual ly what 

was going on.

I th an k you for your indulgence.

Mr. Drin an. Than k you ve ry much.

I yie ld to the ge ntle man from New York. M r. S mith.

Mr. Smith. Thanks, Mr. Chairma n. I do n ot have any q uestions f or 

Mr. Simon. I am rea din g the statem ent of Pv t. Lew is Sim on and I 

will rea d i t in fu ll late r. I sho uld be very in terested in th at.

Th an k you, Mr. Simon, fo r bringing your son’s message to us.

Mr. Drin an, I yield to the gen tleman from New Jer sey , Mr. 

Sandma n.

Mr. Sandman. Mr. Simon, do you know why you r boy is in solitary 

confinement ?

Mr. Simon. Oh, yes.

Mr. S andman. What did he do ?

Mr. Simo n. M any things. I did not wa nt to draw fo rth tea rs or ask 

fo r too much sym pathy . I will give you a few exam ples. Th ey wake 

him up at 2 a.m. in the mo rni ng and tell him th at his shoes un de r his 

bed, th at one faces no rth and one faces south, and the y should both
407

be facing the same way. He was deep in slumber and be resented the 

fact tha t be had been awakened for so minor a thing, and he said: 

“I will not change it.” And they immediately dragged him down.

No. 2, at one time his blanket-----

Mr. Sandman. Do you know this to be a fact or is this what he told 

you happened?

Mr. Simon. He told me.

Mr. Sandman. Well, this is how you know?

Mr. Simon. I cannot tell it as a fact because I was not there. I 

presume he would not lie about it.

Mr. Sandman. They put him in solitary confinement just because 

his shoes were pointing in the wrong direction, is that what he said 

to you?

Mr. Simon. Yes; but he would not change them. If he had indeed 

changed them, he would have avoided being p ut in solitary.

Mr. Sandman. First of all, when was he first apprehended?

Can you tell me that?

Mr. Simon. He was not apprehended. He surrendered voluntarily.

Mr. Sandman. When was that?

Mr. Simon. On December 19 at a public hearing.

Mr. Sandman. Of this year or last year?

Mr. Simon. Of 1973, of course.

Mr. Sandman. And from the public hearing where did he go?

Mr. Simon. From there the FB I came in and took him and Ed 

McNally and handcuffed them and took them right to the Fort Dix 

stockade. He has been there for 3 months now.

Mr. Sandman. Well, was he in solitary confinement when he was 

first put in the stockade?

Mr. Simon. No; I do not believe so. He was just held pending some 

sort of decision of what to do with him.

Mr. Sandman. All right.

Now, when did he fii-st desert the Army?

Mr. Simon. Christmas of 19G8.

Mr. Sandman. And then what happened?

Mr. Simon. I was completely unaware of his intentions. He 

had not told me. I am sure had he told me he would know my great 

opposition to what he intended to do. I have fo ur boys and Lewis-----

Mr. Sandman. When he deserted the Army, where did he go?

Mr. Simon. He immediately embarked for Sweden.

Mr. Sandman. In 1968?

Mr. Simon. That is right, the end of 1968.

Mr. Sandman. All right.

How long did he stay in Sweden?

Mr. Simon. He has been there for 5 years.

Mr. S andman. And he returned from Sweden when ?

Mr. Simon. He returned ?

Mr. Sandman. When did he come back from Sweden ?

Mr. Simon. To the States?

Mr. Sandman. Yes, when?

Mr. Simon. On the day before December 19, before he surrendered.

Mr. Sandman. Now, in your testimony you favor unconditional 

amnesty.
40S

Why do you fav or uncon ditional amn esty ?

Mr. Simon. I have heard this question many time s. Mainly because 

wh at these boys d id in th eir opinion and my opinion was not c riminal 

or illeg al. I said before they took the only step th at they tho ught 

would bring to the forefro nt a situatio n, which the y thou gh t was 

imm oral. I stress the word ‘‘immo ral’' o r “i llegal” because of what I 

have hea rd and wha t I have read and na tura lly because I am defen ding my son.

Mr. Sandman. I can appre cia te th at but how can you say th at wha t 

they did was legal ?

Mr. Simon. I llegal?

Mr. Sandman. You say it was legal. Don't you think it was again st 

the. law to desert the A rmy ?

Mr. Simon. Yes, it was ag ainst the law to desert the A rmy.

Mr. Sandman. All rig ht, now as a law -ab iding citizen, do you have 

the righ t to make up your min d when you are going to obey the law 

and also when you are not go ing to obey the law?

Mr. Simon. Of course not. 1 realize desertion is desertion.

Mr. Sandman. All rig ht, now let ’s follow that thr ou gh . You admit 

he did not obey the law. Th ere was a law in existence at the time and 

now you say th at to those in the same position, there should be no 

con dition upon w hich a forgiven ess of the ir disobeying th at law should 

be made.

Mr. Simon. In his opinion he felt he was not diso bey ing the law 

because he was involved in som ething which he considered illegal. 

Now the arg um ent has gone fo rth many times, is i t o r is it not illegal ? 

An d these boys feel it was an imm oral war and the y took the only 

step t hat was possible for them.

Now you may or may not agree. At the begin nin g I di dn ’t agre e 

cither .

Mr. Sandman. I have no fu rthe r questions. Oh, let me ask just one 

more if I m ay------

Mr. Simon. May I resp ond -----

Mr. Sandman. Let me ask ju st one question. U ncondition al amnesty 

means no con ditions at all. Suppose the Con gress imposed one con ditio n. an allegian ce to the Gov ernment of the Un ite d States. Wo uld 

th is boy pledge his alle giance to t he Governme nt of the United Stat es ?

Mr. Simon. Ind eed he would, yes, he would.

Mr. Sandman. All rig ht.

Mr. Simon. He would.

Mr. S andman. All rig ht. I have no other questions.

Mr. Kastf.nmeier. Mr. Mevinsky?

Mr. Mezvinsky. Mr. Simon, I wan t to say th at the voice of your 

son was heard tod ay wheth er you read the words or wheth er he did.

I want to discuss the question of uncon dition al versus con ditiona l 

amnesty. What do you th in k the position of your son would be if he 

was told th at the Congres s passed a law gr an ting con ditiona l im ­

munity based upon servin g 2 years in some form o f alt erna tiv e public 

service, such as hos pital work. Peace Corps work, or som ething of 

th at natur e? Could you indicate for the com mittee wha t his reac tion 

would be, if he h as discu ssed t hat w ith you, and wh at your own v iewpoint is?
409

Mr. Simon. My own—and this would answer the question of Congressman Sandman, too—yes, yes, ordinarily if it was done of their 

own volition, he would gladly serve 2 years. But back in their minds 

they have the feeling, the very feeling tha t should they accept this 

conditional surrender, this conditional amnesty I mean with 2 years 

of service, and without being arrogant, they feel tha t they are admitting tha t they were criminals, tha t they did commit a crime. And in 

their minds they still feel they didn’t do anything criminal. That is 

open to debate and dispute, but they honestly feel tha t they didn’t 

do anything criminal and by accepting a 2-year service, they would be 

admitting their crimes. That is their main opposition to the 2-year 

servitude.

Mr. Mezvinsky. You pointed out th at you were a member—but, are 

you now a member of the VFW ?

Mr. Simon. No, no, I left them 5 years ago or 6 years ago.

Mr. Mezvinsky. In view of their strong feelings on amnesty do you 

feel that there is a chance that there may be a change of heart, a 

change of feeling or do you think th at it is a position tha t is going to 

hold righ t on down the line, no m atter what action is taken by the 

Congress ?

Do you sense any feeling from within the organization that with 

the proper exposure and the kind of education that Senator Ta ft 

mentioned this morning, tha t the public, let alone the groups that 

have testified against amnesty, will begin to see the healing process 

tha t could come about with immunity that you are talking about 

today ?

Mr. Simon. Yes, but I left many years ago, 6 years ago before the 

amnesty issue had really come to the fron t where there wasn’t too 

much debate about it at that particular time. Now it has become 

an issue.

I think you gentlemen are aware amongst our group, Project Safe 

Return, we are doing all we can to obtain unconditional amnesty for 

these boys.

There are Gold Sta r Mothers, mothers who have lost their sons, 

and we realize how tragic it has been and they are with us and they 

are for us. There are also sons of colonels, of high-ranking officers, 

and I believe you can understand the heartache they brought to their 

parents, but they too are with us. They have come over.

I was only a T-4, an ordinary technical sergeant, so I can’t claim 

tha t I stood too high, but my opinion in the beginning has changed.

I realize what these boys have done. They honestly and sincerely 

thought they were doing the righ t thin g and I am with them.

Mr. Mezvinsky. Thank you.

Mr. Kastenmeier. Thank you, Mr. Simon, fo r your testimony this 

morning.

Mr. Simon. Thank you for your time.

Mr. Kastenmeier. The next witness the Chair w’ould like to call 

is Mr. Ronald H. Brown, director of the Washington bureau. National 

Urban League.

Mr. Brown, we have your statement. We will include it in the record 

in its entirety together with the accompanying statistics. I would ask 

you in view of the fact there are seven witnesses remaining, to try 

and summarize it briefly for the committee.

31-65 8 0 — 74-------28
410

TESTIMONY OF RONALD H. BROWN, DIRECTOR, WASHINGTON 

BUREAU, NATIONAL URBAN LEAGUE

Mr. Brown. Th an k you, Mr. Ch airma n. My name is Ronald H. 

Bro wn an d I am the dire cto r of the Wa shing ton burea u of the National 

Urb an Leag ue.

Of course, it is a plea sure fo r me to ap pe ar before you to present 

the views of the league on the question of amnesty and related 

problems.

Th e sub ject of amn esty is certainl y one with which the Nation al 

Ur ba n Lea gue has a gr ea t deal of concern fo r we hav e successfu lly 

opera ted a military and vetera ns affairs pro gra m since 1967 and feel 

th at we have gain ed a g reat deal of un de rst an ding ab out the prob lems 

of lif e relate d to mili tary service. Over th at per iod of tim e we have 

pro vid ed assistance to some 45,000 minority vetera ns in the are as of 

edu cation, emp loymen t, hou sing , healt h and welfar e, and the ad mi nist ratio n of justice.

It is because of this experienc e, Mr. Ch air ma n, th at the Nation al 

Ur ba n League is here to discuss with this subcomm ittee an amnestyrel ate d prob lem which seems to have been virtu ally overlooked or 

ignored d ur ing t he natio nal deb ate on a mne sty for A merica ns who, for 

whate ver reasons, refused to answer the Na tio n’s call to military duty . 

While we agree that it is noble and indeed righ t to consider the gra nting of amnesty to them, we feel th at at the same tim e the Congress 

sho uld consider the grievances of those who did serve but who, for 

whate ver reasons, were separated with oth er- tha n-h onorable dis ­

charges.

Given the new m ora lity of the N ati on ’s yo ung people about war a nd 

its con com itan t evils, we offer no arg um ent again st the concept of 

amnesty, b ut we stro ngly arg ue that consideration f or those who served, 

wh ate ver th ei r deeds, sho uld have pr iorit y with the Congress. The 

basic rat ion ale for gr an tin g amn esty for those who refused to serve 

du ring the Vietnam war is t hat t he war was imm oral and un just and 

therefore those who resisted military service were justified in their 

actions. Su pp or t for this gro up has been g row ing over the past several 

yea rs and mon ths, pr ec ipita tin g the national debate we face now. U nfortu na tely, to my knowledge, no substa ntial movemen t has been gen ­

era ted any whe re in this cou ntry on behalf of those who willin gly 

subm itted to the rig ors of the military system, and received less than 

honorab le discharg es.

Th e Am eric an Civ il Libertie s Union Fo undatio n, in its Pr ojec t on 

Am nesty has determ ine d th at appro xim ate ly 450,000 veterans of the 

Vietn am w ar h ave les s-th an-honorable disch arges and that the prop or ­

tio n of blacks who have had disc harges is fa r more t ha n anyone could 

deem fai r.

It is i mpo rta nt to un derstand, Mr. Ch air ma n, th at t he m ilitary, like 

the vast majority of our oth er ins tituti ons, has somehow learned to 

dispense justice in a d isc rim ina tor y man ner. Mino rity grou p mem bers 

were dr af ted in g reater num bers, assigned in g reater numbers to fron tline du ty or to unskilled , dead -end jobs, and generally abused by the 

unfa ir system of military justice. Fina lly , those who were called upon 

to bear the b ru nt of t he d uty on the fro nt lines were ejected in grea ter 

num ber s with less-th an-hon orable records.
411

The limited discharge-upgrading services, now underway, with its 

tedious review processes, are totally inadequate and promise to do little 

in redressing the wrongs of the recent past. If minority veterans with 

bad discharges are to avoid disproportionate hardships in civilian life, 

Congress must act forth rightly in removing the blight of dishonor 

from their m ilitary records.

The problem is broader than just the matter of having a bad discharge. The inequities of the past somehow perpetuate themselves, as 

has been pointed out by the American Civil Liberties Union.

Their reports indicate tha t if we take a look at the prison populations in this country, we will see beyond a doubt tha t they are populated by a large measure by people who have received less than honorable discharges from the military.

It should be noted that at this point in time when unemployment is 

excessively high, discharges are being used to deny jobs to those who 

otherwise qualify for them. To understand the scope of the problem, 

it is only necessary to consider that about a million veterans left the 

service with less-than-honorable discharges since 1950. Full too manv 

of these bad discharges were given under circumstances th at would 

not earn any sort of punishment in civilian life.

It is also necessary to know t hat even discharges which have the 

appearance of being honorable are in fact coded with personal characteristics which may serve to discriminate against millions of men who 

are not even aware of the presence of such a coding system.

The National Urban League estimates th at there are some 200 such 

code numbers used on discharges and it understands tha t employers 

in the Nation have access to resources for decoding them despite 

Defense Department denials to the contrary.

We are convinced th at this unjust system of coding discharges must 

be completely uprooted if civil liberties are to remain intact and fai rness served. We thus urge this subcommittee to direct the Department 

of Defense to move swiftly to end the coding system altogether and to 

refuse to honor all requests for personal information about veterans.

While the practice of using separation program numbers (SPN) on 

discharges hampers the civilian progress of all veterans, it works a 

special hardship on minority veterans who already face many hurdles 

in our society.

Bad discharges—administrative, undesirable, or dishonorable— 

make it extremely difficult or often impossible for minority veterans to 

find jobs, even those to which they may be entitled by virtue of their 

veteran status.

A study prepared by the National Urban League’s Department of 

Research indicates that within all the services, blacks receive a greater 

percentage of other-than-honorable discharges than whites.

The tables included in this text clearly show this to be the case. Fo r 

example, the ratio of black to white of dishonorable discharges in the 

Air Force is over 3.6 to 1. In the Navy it is over 1.7 to 1.

It is significant to note that according to our study more than 22 

percent of all black enlisted men discharged from the Marine Corps in 

1972 received other-than-honorable discharges. That is almost one 

quarter of all of those discharged.

The other branches report less-than-honorable discharges for blacks 

as follows:
412

For the Navy it was 18 percent. For the Army it was 11 percent. For 

the Air Force it was 10 percent.

In order to put those statistics in perspective, the comparable rates 

for whites who received other than honorable discharges were as follows: for the Marines, 13 percent; for the Navy, 10 percent; for the 

Army, 6 percent; for the Air Force, 3 percent.

This study has already been shared with the Senate Committee on 

Veterans’ Affairs and we would gladly make the complete study available to this subcommittee. Other groups such as the National Congress 

of Puerto Rican Veterans have made similar studies and have reached 

similar conclusions.

Hopefully, we have delved into the matter of those who served their 

country and were discharged under conditions other than honorable 

sufficiently to make our point. Those with bad discharges—whatever 

their race—deserve congressional consideration at the same time that 

consideration is given to those who refused to serve.

In ending, Mr. Chairman, I would like to point out that bad discharges carry with them a lifetime of social stigma, reduced economic 

opportunity and even diminished Government benefits. Based on our 

own experiences, we know th at these limitations on minority veterans 

are passed on to their family members. A jobless veteran cannot find 

a home in a decent community to live in; he cannot send his children 

to a decent school, assure them of adequate and nutritious meals or 

provide the proper health tha t his family so desperately needs.

Is it really fair to punish a person—and his family—for years to 

come because of minor infractions made at an early age, especially 

when the majority of the infractions were of a questionable nature 

and they have been motivated and punished by discriminatory policies? We think not, and respectfully urge you to take legislative action 

to correct the injustices of the military separation system.

Thank you very much, Mr. Chairman.

Mr. Kastenmeier. Thank you, Mr. Brown, for a very significant 

statement.

Furthermore, I apologize for not being able to reach you a t 1:30 

because of the witnesses held over from the morning hour. I understand you, as a result, are late for a meeting you had hoped to keep.

Mr. Brown. Quite all right. This is much more important, Mr. 

Chairman.

Mr. Kastenmeier. The study that you have referred to, is interesting. Those statistics are very interesting.

Tha t goes beyond really the question of amnesty. Tha t also goes to 

racial discrimination in the military.

I wonder, have you or a representative of your organization had an 

opportunity to testify before the Armed Service Committee in connection with their discharge program or their program of separation 

of military personnel ?

Mr. Brown. We have not testified before that body.

Mr. Kastenmeier. You have not been asked to testify before them?

Mr. Brown. We have not.

Mr. Kastenmeier. Well, I don't know within which committee's 

jurisdiction this falls, but I do suggest tha t you have raised a very 

important issue and it seems to me the duty of the Congress to address 

itself to it. We won’t detain you too long. I yield to Mr. Railsback.
413

Mr. Railsback. I am very interested in your allegations about the 

coding. I believe you referred to an American Civil Liberties Union 

study ? Was it a survey ?

Mr. Brown. It was a study connected with their project on amnesty 

which indicated the results of the coding system and tha t such a 

system did exist.

Mr. Railsback. I really think tha t that is a most serious charge, if 

true, and I ’m just wondering has the ACLU testified yet?

Mr. Kastenmeier. As a matter of fact, testimony and supporting 

data on the question Mr. Brown has addressed himself to was offered 

on F riday and it has already been included in the record.

Mr. Railsback. Yes; it seems to me th at something like this goes 

against everything this subcommittee is trying to do as fa r as providing work opportunities for people that need to get work in order to 

stay out of jail.

Mr. Brown. Mr. Railsback, I believe there have been admissions, 

even by the Defense Department, tha t the coding system was used. 

I think what has been said since tha t time was that employers had 

no means to decode and therefore had no means to find out what the 

coding system actually meant. Our best information is tha t this is 

not the case and that many of the larger employers in this country 

do have the means of decoding and therefore can see exactly what 

the codes mean.

Mr. Railsback. Well. I want to thank you. I also think tha t possibly 

this particular subject matter m ight be taken up by at least one other 

committee that is concerned about the right of privacy and some of 

the other shared data that is made available to employers.

I am glad you brought this to our attention and I hope tha t we can 

do something about it. Thank you.

Mr. Kastenmeier. The gentleman from Massachusetts.

Mr. Drinan. I want to thank Mr. Brown for his testimony. It is 

very helpful. I won’t detain you further from your appointment. 

Thank you very much.

Mr. Kastenmeier. The gentleman from New York, Mr. Smith.

Mr. Smith. Thank you. Mr. Chairman, and thank you, Mr. Brown, 

for appearing before us today. I too am interested in this coding 

question, which you brought forth. What kind of information would 

be included in such a coding system as you have mentioned?

Mr. Brown. Well-----

Mr. S mith. I understand there is a coding system on an honorable 

discharge ?

Mr. Brown. Yes; that is correct. We assume that it has to do with 

personality traits, with conduct while in the military, with the ability 

to take direction and be supervised, with matters that have not ordinarily been made available to employers from the military. Therefore, we are requesting tha t congressional action be taken in this 

regard and requesting that employers no longer be given access to that 

information.

Mr. Smith. One other question. Well, I agree with Mr. Railsback 

and I think t hat is something tha t is serious and certainly the Armed 

Services Committee ought to look into it. I hope they are doing it 

right now. If they aren’t. I hope they begin immediately.
414

You sta te in reg ard to those who have been discharg ed with a lesstha n-honorab le disc harge th at the lim ited discha rge up gr ad ing services now und erw ay with th is tedious review process, and so on, are 

total ly inad equ ate and promise to do little in red res sing th e wrongs of 

the recent past.

I assume from th at th at the re are some procedures for up grad ing 

a less-th an-honorab le discha rge now provided.

Mr. Brown. Yes, th at is correct. I think th at the Defense Dep ar tment and oth ers have recognized the injustices done and have recognized th at the re hav e been dis criminator y kin ds of actions tak en in 

giving these less-th an-hon orable discharg es. And because of th at 

admissio n and th at recognition , they h ave come fo rth with the system 

th at we have classified as inadequate.

I think one of the prim ary concerns abo ut its inad equacy is th at i t 

requires ini tia tio n by the ind ividual servicem an. Of ten tim es the serviceman does not even know of the ability to clear his record , and t ha t 

is one of the ma jor problem s here.

So we think th at a much bro ader step needs to be tak en than a 

step th at allow s only the wro ng to be redressed by action tak en at the 

initiati on of the ind ividual servic eman.

Mr. Smith. W ell, would you be in fav or, for instance, of a proje ct 

by the Defe nse De partm ent, by the armed services, to get th e word o ut 

to everybo dy, and also, if necessary, to change somewhat the up gr ad ­

ing process hut to leave a review process there fo r ind ividual cases?

Mr. Brown. We would cert ain ly be in favo r of a ny thin g t hat w ould 

imp rove the system and ge t this blight off of the records of man y 

military men. Quite fra nk ly, it ’s been the mino rity gro up members 

of the military th at have been dis prop ortio na tel y affected. W hethe r 

we would accept some kin d of review, I think we would wa nt to fake 

a close look at wh at kin d of review th at would be, hut we would 

he certainl y glad to see a ny method established th at would be used to 

imp rove the current system .

Mr. Smith. Th an k you very much.

Mr. K astenmf.ier. The gen tlem an from New Jer sey .

Mr. Sandman. Mr. Bro wn, I think Mr. Sm ith has alr ead y gotten 

the answer th at I was going to ask any way, but for my own satis ­

fac tion, you are testify ing at a he ari ng th at has to do with amn esty, 

and of course, the position taken, as I u nders tan d it. by you is in favor 

of unc onditional amnesty. Is th at correct ?

Mr. Brown. Th at is correct.

Mr. Sandman. All rig ht, at the same he aring you hav e bro ught 

up a very im po rta nt poin t in which we a re intere sted, but do I un de rstan d you cor rectly in believing th at you are ask ing for an uncon ditio nal forg iveness of these thing s also?

Mr. Brown. An unc ond itional forg iveness of which thi ngs?

Mr. Sandman. Of those discharges th at are less-than-honorab le.

Mr. Brown. W ell, we think . Mr. Sandma n, th at the sta tistic s show 

on th eir face th at the re has been gross discri mi natio n in the military 

justice system , and we think that unless someone can show us some 

kin d of fa ir way of redres sing those grie vances, th at we are forced 

into a position of ask ing fo r unc onditional change.

Mr. Sandman. You mean a nullific atio n of all of them?
415

Mr. Brown. Well, first of all, we are talking about a certain era. 

We are putting this in the perspective of these hearings, and since 

the amnesty question has come up related to the Vietnam era, we are 

asking you also to look at an important issue tha t affects a great 

number of our constituents and tha t is the less-than-honorable discharges during tha t era, so we are limiting th at request.

Mr. Sandman. One last question. I want to be sure I understand 

what you are saying.

I believe that something must be done on this codification problem 

tha t you brought up. I never even heard of it to be honest with you.

T think it is terrible if it does exist.

Now, secondly, a better and faster review of these less-than-honorable discharges I think probably is in order because the proportions 

tha t you sight seem to be somewhat one sided.

Now, the important question, from what you just said, it appears 

that you believe that all of those discharges less than honorable during 

the Vietnam conflict should all be either downgraded or nullified. Is 

tha t correct ?

Mr. Brown. I think, Mr. Sandman, we are perfectly willing to look 

at a review process and participate in any way that we can in assuring 

tha t it is a fair process. We have not seen one yet. And because of the 

fact tha t we haven’t, we are taking the position th at it should be unconditional. We are not ruling out any subsequent discussions, any 

subsequent conversations about a kind of review process tha t would 

meet the needs that you expressed.

Mr. Sandman. Yes, but you are not hoping for any congressional 

action tha t is going to nullify every discharge less than honorable.

Mr. Brown. I think that would probably be unrealistic, Mr. 

Sandman.

Mr. Sandman. Thank you.

Mr. Kastenmeier. I might point out that the Defense Department 

will be a witness on Wednesday morning next, and perhaps counsel 

can communicate with them and let them know that they will be asked 

about this question. We will have questions for them on the points you 

raised, Mr. Brown.

Thank you for your testimony here.

Mr. Brown. Thank you.

Mr. Kastenmeier. Our next witness represents the Young Americans for Freedom. He is Mr. J err y Norton of the national board of 

directors.

I see Mr. Norton’s statement is brief so you may proceed to it, Mr. 

Norton, if you will.

TESTIMON Y OF JE RR Y W. NORTON, YOUNG AME RICANS FOR 

FREEDOM

Mr. Norton. Thank you. My name is Jer ry Norton, and I am a 

member of the board of directors of Young Americans for Freedom. 

That is a nationwide organization of conservative and libertarian 

young people. I am currently a graduate student at Columbia University. I am a veteran and served in Vietnam as an enlisted man in artillery and information units of the Fir st Air Cavalry Division. I received the Purple Heart and other decorations.
416

I hope you all have or will have a chance to read my written testimony this morning. This afternoon I ’d like simply to briefly summarize that testimony and answer any questions you might have. Before 

I summarize, however, I would like to make one correction in the 

written testimony in page 4; the comma in the fourth line from the 

bottom after the word “individuals” should be deleted. It doesn’t 

seem like an important change, but it is crucial to the meaning of th at 

sentence.

Now, to summarize our testimony, which consists of refutations of 

four arguments in favor of amnesty and a presentation of what we 

see as the main argument against amnesty.

First, in our written testimony, we dispute the contention of some 

amnesty proponents that dra ft dodgers and deserters who opposed the 

war in Vietnam were right to do so. Though, perhaps, the morality 

of the war shouldn't be an issue in the amnesty debate, we recognize 

that in fact it has become an issue. We suggest that the Communists 

initiated the war in Vietnam, and that it was moral for the United 

States to help the South Vietnamese to resist them. Hence, we disagree that somehow d raft dodgers and deserters deserve amnesty because they were right about the war. We don’t believe they were.

Second, we note that many amnesty proponents tend to argue from 

numbers. That is, they say so many young people deserted or dodged 

the dra ft that America can’t afford not to take them back. Our testiinoney offers evidence that the numbers involved have been greatly 

exaggerated, and I might add, even if much large r numbers were involved, we still believe amnesty would be wrong in principle.

Third, in our written statement, we disagree with the amnesty proponents who frequently cite uniting the country as the main reason 

for amnesty. We point out in our written statement that it seems more 

logical to conclude amnesty would divide the country and aggravate 

polarization, considering the feelings of the American people on this 

issue.

Fourth, we reject the argument that there is precedent for unconditional amnesty or anything approaching it. In our written statement 

we go war-by-war back to war and find no historical amnesties that 

resemble what the bills before this committee would institute.

Finally, our statement indicates what we see as the major argument 

against amnesty. Amnesty would be yet another precedent where lawbreaking is forgiven. We suggest that all too often in recent American 

history violations of the law have been encouraged and have gone unpunished, if said violations were supposedly politically motivated. 

For example, the independent truckers strike violence, the Hearst 

and Murphy kidnappings, the illegal firemen’s strike in New York, 

and I dare sav much of what your parent committee is considering 

in actions of Presidential aides, were motivated or rationalized by 

the individuals involved on the basis of the idea that the individual 

can pick and choose the laws he will obey or disobey if he is acting in 

what he thinks is a “good cause.’’

I don’t think we should do anything to contribute to that trend, 

which strikes at the heart of our representative system of Government.

Thank you. At this point I would ask that my written testimony 

be inserted in the record. I'd be happy to take any question you might 

have.
417

Mr. Kastenmeier. Without objection, your entire statement in its 

entirety will be received for the record.

[The statement of Jer ry Norton in full follows:]

Testim on y by J erry W. Norton, Nation al B oard of Directors, Young

Americ an s for F reedom

Fou r argu men ts are most frequ ently offered in favo r of amnesty . We of Young 

Americans for Freedom would like to refute those four argum ents, then offer 

what we see as the primar y argu men t against amnesty.

i. “th e war wa s immo ral”

While some amnesty proponents claim th at the issue of the war’s moral ity 

is irre lev ant to the amnesty question, to oth ers it is a principle conside ration. 

They say all or most Americans now realize th at the war was a mistak e, th at 

those who fled the country to avoid serving in the war were right, and th at 

those who mista kenly suppo rted the war s hould thu s ask the dese rters and draf tdodgers for forgiveness, not vice-versa.

We tend to agree th at this argum ent, rig ht or wrong, should not be crucial to 

the amnesty question, yet we recognize th at the public would probably inte rpr et 

amnesty as an admission t ha t U.S. policy in Vietnam was wrong.

For the record then, we want to note th at North Vietnam and its Communist 

allies were responsible for the war. They atta cke d South Vietnam. They currently occupy a considerable portio n of South Vietnamese ter rito ry which they 

use to contin ue the ir military and political campaigns. They have shown th at 

the conflict was not “jus t a civil war” by the ir aggression aga inst Laos and 

Cambodia. Their continued efforts to gain control of Indochina show th at the ir 

att itu de has not changed, and th at the much decried “domino theo ry” was and 

is valid.

Nor was U.S. conduct of the war immoral. Even the December 1972 bombing 

of Hanoi, so intensely criticiz ed by the opponents of th e war, took only 1,318 lives, 

military and civilian, by the Communists’ own count. Th at hard ly squa res with 

the atro city charges made aga inst the U.S., but it does match the U.S. descrip ­

tion of the bombing as precision aimed at m ilita ry targets.

In con tras t, the Communists have consistently followed a policy of ter ror 

aga inst civilians and of execution of political opponents. In one insta nce alone, 

the occupation of Hue in the Tet Offensive, they cold-bloodedly executed more 

tha n twice as many South Vietnamese civilians as all of the casualt ies inflicted 

in the so-called “satu ration bombing” of Hanoi.

Thus, any argu men t th at amnesty should be gran ted because America was 

on the wrong side in the Vietnam war, or used immoral tactic s, should be 

rejected.

II . “ s o MANY YOUNG M EN”

This pro-amnesty argu men t from numb ers asserts that so many men deserte d 

or dodged the dr af t that America simply cannot get along without them. As 

sub stan tiation for this, the figure for tota l desertions during the Vietnam war 

is given.

Such sta tist ica l “evidence,” however, fail s to mention th at more tha n 90% 

of th at tota l retu rne d to military control, usually of the ir own volition. Hence, 

in late 1972 only 32,557 of the 423, 422 men who had deserted since mid-1966 were 

still at large.

The pro-amnesty people also like to depict all these men as motivate d by the ir 

consciences and hea rt-felt objections to the Vietnam war, when most are motivated by othe r factors such as family problems, individual difficulties with the ir 

units, simple dislike for the military life, or noth ing more siniste r tha n a decision to tak e an extende d and unau thorized vacatio n. Such factors may explain 

why only 5% of deserte rs in foreign countries, according to the Departm ent of 

Defense, have made po litical o r anti-w ar stateme nts.

It should also be noted th at while amnesty propaganda speak s of many 

thou sands of men “in exile” overseas, the Departm ent of Defense knew’ in late 

1972 of only 2,525 deserte rs abroad and the Departm ent of Just ice only 2,760 

draft -dodgers abro ad—and only ano ther 1,700 draft -dod gers believed to be in 

the U.S.
418

Finally, while pro-amnesty prop agan dists discount the above stat isti cs, saying 

many draft -dodgers were never indicte d and claiming th at as many as 40,000 

to 100,000 linger in Canada, immigration sta tistics show th at if every American 

male in the mil itary age brac ket who went to Canada to stay between Jan uar y 

1965 and Jan uary 1972 were assumed to be a draft-dodger or deserter, the grand 

tot al would stil l be less tha n 17,000.

II I. BRING ING TH E COUNTRY TOGETHER

A cent ral pro-amnes ty argu men t is that amnesty would heal the divisions 

lef t in the country by the Vietnam war. It seems equally plausible th at amnesty 

would polarize the country more, not less.

For example, Americans have made heroes out of the form er prisoners-of-war. 

Would the public, not to mention the P.O.W.s themselves, greet ret urn ing dra ftdodgers and dese rters with adulation or conte mpt?

Similarly, there are millions of Vietnam veterans. Though war opponents 

among them have been vocal, few would argu e th at such radical groups represent more than a small minority of veter ans. As for the rest, would they not 

rese nt the ret urn of those who avoided service while they risked their lives 

and while many still bear the scars and wounds of wa r? How will the relat ives 

of those men react, especially the relatives of those who lost the ir live s? While 

the re are no doubt exceptions in each category, it seems reason able to assume 

th at most would not willingly accept amnesty .

Polls of the public have consistently shown th at Americans at large oppose 

univ ersal amnesty, and especially oppose amnesty for deserters. Thus, how 

amnesty would “bring the country toge ther ” is hard to unde rstan d.

IV. TH E HISTOR ICA L PRECEDENT

A fav orit e argu men t of pro-amnesty forces is that amnesty is in a great 

American tradition , th at there have been many amnesties after American wars. 

Such an argu men t is with out fou nd ati on ; the pro-amne sty forces call for a 

univ ersa l amnesty which was never gran ted in the histo ry of our nation .

During the Civil War Preside nt Lincoln on several occasions offered amnesty 

to Union deserters, but the amnesty was alwa ys conditional. The condition was 

usually th at the dese rters had to ret urn to mili tary duty and for feit a certain 

amount of pay. That is considerably different from universal amnesty. There 

was no amnesty for those viola ting the dr af t laws.

Amnesty with exceptions was offered by Lincoln to Conf ederate soldiers, but 

th at obviously has no para llels with the cur ren t situatio n. Confedera te soldiers 

were ju st tha t, soldiers, not indiv idua ls who refused to flglit. They were pa rt of 

the army Lincoln was trying to defeat, which made it in his government's 

intere st to encourage them to dese rt and deplete the enemy’s forces. The Confed erates also had to tak e an oath of loyalty to the Union, an explicit admission 

th at they had been wrong.

After the war President Johnson offered amnesty for Union deserte rs who 

return ed to the ir units to serve out the ir mil itary duty. There was no amnesty 

for draft, law violators. There were various amnesties for Confe derate soldiers 

(ag ain note the lack of paralle l with those who want amnes ty toda y), but there 

was no complete amnesty even for them unti l 1898.

Ther e was no amnesty af te r the Spanish American War.

Fifteen years after the end of World Wa r I Pres iden t Roosevelt pardoned 

1,500 individu als who had been convicted, and served the ir sentences, of violations of the dr af t and espionage laws. Pres iden t Coolidge gran ted amnes ty to 

abou t 100 men who deserted the ir units after the armistice . Again, wart ime 

deserte rs received neither pardons or amnesty.

After World War II Pres iden t Trum an set up an amnesty review board th at 

looked at individual cases and pardoned 1,523 of 15.803 draft evaders. There 

was n ot even t his very limited amnesty f or deserters.

There was no amnesty after the Korean War. In December of 1952 Pres iden t 

Truman gran ted amnesty for those who deserted between the end of World 

Wa r II and the outb reak of the Korea n War. peacetime dcsertern. Moreover, all 

had been convicted of deserting, which meant they had served some prison time.
419

V. THE ARGUMENT AGAINST

Having examined the main argu men ts for amne sty, and the problems with 

them, we turn to the main argu men t agai nst. To jiermi t amne sty for those who 

refused service in Vietnam is to se t a preced ent th at says, “If you thin k a law 

is immoral, break it, because you may very well find that society changes its 

mind, forgives you and doesn’t punish you.” More simply it says, “You were completely right to disobey the law.”

As conservatives , we in Young America ns for Freedom believe in indiv idual 

liber ty, yet we are also aware th at the very concept of governm ent becomes 

meaning less if indiv idual s ar e free to pick and choose those laws they will obey 

and those they will disobey. This is self-eviden t. While those who have decided 

th at the Vietnam War was tota lly immor al and indefen sible may brush this 

argu men t aside, I suggest they ask themselve s if they so readil y forgive a white 

raci st who follows his conscience and blows up a black chur ch? Or on a more 

mundane level, excuse those whose consciences told them a given government 

progr am was immora l and ther efor e refuse d to pay the taxe s to supp ort it? (In 

this case we as conser vative s would be paying very few taxe s indeed.) To perm it 

this is to crea te governmen t o f whim, not law.

Amnesty would make a mockery of law and government. It is one thing to 

disobey a law because one feels it is immora l—one can conceive of circum stance s 

where conservatives might do ju st th at —but it is quite ano ther to expect the 

society th at made the law not to punish one for th at disobedience. Mar tin Luther 

King, Thore au and Ghandi expec ted to go to j ail w hen th ey violated t he l aw ; the ir 

concept of civil disobedience was not th at of those who requ est amne sty, nor 

could it be if we are to have an order ly rathe r than anarchic society. The choice 

is not between liber ty and order, but between having both or neith er.

Mr, Kastenmeier. You mentioned the Hear st kidnaping .

Mr. Norton. Yes; as I say, the Hearst kidnapin g is an example 

of people violating the law because they think they are motivated by 

something higher, by their conscience, which there fore, justifies the ir 

violating the law. I think that is p art of a general trend in American 

politics in the last decade.

Mr. Kastenmeier. It appears to be, given your other statement 

about the questions raised by our parent committee’s proceedings in 

regard to Waterg ate.

Mr. Norton. Yes.

Mr. Kastenmeier. I yield to the gentleman from Illinois, Mr. 

Railsback.

Mr. Railsback. I wonder how you feel about some kind of conditional amnesty. I guess actually we have th ree different kinds of bills 

before us. Fir st, we have a simple resolution tha t speaks out against 

any amnesty and second, we have the absolute amnesty and thir d, we 

have some conditional amnesty bills. How do you feel about the conditional amnesty?

Mr. Norton. Well, I can't speak for the organization as a whole 

on those because our stand has been prima rily against universal amnesty without considering those alternatives. I would say personally 

tha t I would favor, and I think some other Young Americans for 

Freedom would f avor conditional amnesty of the type in some of these 

bills where the individual can choose to give 2 years in the militar y 

or serve in a volunteer domestic agency alt hough I thin k I would personally want to see that service longer. Tha t is, if somebody was going 

to take the option of serving in Volunteers in Service to America for 

something like that , I would want him to spend a longer time in th at 

agency tha n an individual would spend in the milita ry.
420

I th in k the re are circum stan ces under which I migh t fav or conditio nal amn esty and I think pro bab ly none of us would object to a 

review board to review indiv idu al ha rdsh ip cases. But we are very 

much opposed to uncon dition al or universal amnesty.

Mr. K astenmeier. The gen tlem an from Massac husetts, M r. Dr ina n.

Mr. Drin an. Mr. Norton, how man y mem bers do you speak for? 

How ma ny people?

Mr. Norton. We have 60,000 members and 400 ch apter s and they are 

collge and h igh school people un der 40.

Mr. Drin an. W ha t do you mean by a member ? Do the y have to pay 

dues ?

Mr. Norton. Th at is right.

Mr. Drin an. You have th eir nam es somewhere ?

Mr. Norton. Do I ha ve w hat ?

Mr. Drin an. They get literature? The y are formal members?

Mr. Norton. Yes, sir.

Mr. Drin an. Ha s the org aniza tio n tak en a sta ted wr itten position 

on th is matter?

Mr. Norton. Yes, sir. We passed a resolution a t our na tio nal convention h ere in W ash ing ton la st Augus t.

Mr. Drin an. Do you have a copy of th at or does it say anyth ing 

th at you ha ven’t ?

Mr. N orton. No, sir, I do n’t hav e a copy o f that.

Mr. Drin an. La st Au gust? Do you think th at a ny thing h as c hanged 

in the few mon ths th at have gone by since then ?

Mr. Norton. No, sir.

Mr. Drin an. Do you think an ything will ever change?

Mr. Norton. O h, I think som ething migh t ult im ate ly change.

Mr. Drin an. Th e Am erican L egio n said th at it w ould be prem atu re 

to have amnes ty. Wo uld the Y oung Americ ans fo r F reedom agree with 

th at?

Mr. Norton. I ’m not sure wh eth er it would or not, Congressm an.

Mr. Drin an. You what ?

Mr. Norton. I ’m not sure wheth er it would agre e with th at sta tement o r not, Congressm an.

Mr. Drin an. You say th at it seems possible or plausible th at amnesty would polariz e the cou ntry. Well, why is the country so 

polarized?

Mr. Norton. I think the cou ntry is na tura lly polarized between 

people with div erg ent view poin ts about the Vie tnam wa r and with 

divergent viewpo ints abo ut anyth ing . I think you can look at any 

Am erican p olitica l election, but specially the last one, w here a t least as 

people saw the candida tes or viewed the can did ate s or thou gh t they 

under stood the cand ida tes ’ position s, the re was significant difference 

betw een them . In t hat sense they a re politically polariz ed.

Mr. Drin an. All rig ht, if you are enuncia tin g th e Young A mericans 

for F reedom position, you are con tinuin g th at pola rization because you 

say th at on page 1 th at “N orth Vietnam and its Com munist allies 

were responsible for the war. They attack ed South Vietnam . The y 

cu rre ntly occupy a conside rable portio n of South Vietnam ese te rr itory, which the y use to continu e their mili tary and political 

cam paign s.”
421

Most people don't agree with that in America or at least half or 

maybe more do not.

So do you want a stalemate so that we continue the polarization or 

what ? How’ are you going to defuse the situation ?

Mr. Norton. First, I’m not sure exactly what the question is, but 

in response to your statement that half of the American people don’t 

believe what we stated about Vietnam. I would say probably half or 

more of the American people do believe what we stated about Vietnam. 

What they don’t believe is that it is worth the U.S. involvement.

In terms of aggravating polarization, what I am suggesting in my 

statement is tha t for Congress to pass amnesty at a point when the 

vast majority of Americans I think are very much against it, would 

increase resentment and w ould-----

Mr. Drinan. That is not what recent polls say.

Mr. Norton. T hat is w’hat the polls I have seen say, especially in 

regard to desertion.

Mr. Drinan. Well, you don’t read very much then.

Mr. Norton. Maybe we don’t read the same things.

Mr. Drinan. At the bottom of page 3, do you think th at that defuses 

polarization by saying, “the war opponents among them have been 

vocal, few w’ould argue tha t such radical groups represent more than 

a small minority of veterans?”

Mr. Norton. Sir, I very much wanted to make the statement and 

the point that veterans like myself have resented groups like the Vietnam Veterans Against the War, who even in their own statements of 

membership, which I think are exaggerated, don’t claim to represent 

the majority of veterans.

Mr. Drinan. Why do you say tha t they are radical groups and yet 

you are a nonradical ?

I haven’t met a single veteran, other than you, who justified this 

war.

There w’ere 2l/2 million people who went there and back, and I 

haven’t met a veteran wrho is for this w*ar. And I talk to them. I am 

astonished when most everyone is against that.

So that doesn’t help the situation any.

I appreciate your statement, Mr. Norton, and your viewpoint, but 

in all candor, it doesn't help us. This is just rhetoric. And frankly, the 

American Legion is more constructive than this. They say that it is 

premature, but you just go on to say amnesty would make a mockery 

of law and government.

I just don't think that is a worthwhile contribution.

Mr. Norton. Thank you. Congressman; you are entitled to your 

opinion, and I hope I am entitled to mine.

And I think it would be appropriate to say you must not have talked 

to many veterans if the only ones you met are invariably against the 

war.

Mr. Kastenmeier. I recognize the gentleman from New York. Mr. 

Smith.

Mr. Smith. Mr. Chairman, I would like to thank Mr. Norton for 

bringing this point of view here. I have no questions.

Mr. Kastenmeier. The gentleman from New Jersey. Mr. Sandman.
422

Mr. Sandman. I have no questions, but I do want you to note that 

one member of this committee has a poll which is similar to yours. The 

half million people that I represent, in an at-large questionnaire, 91 

percent opposed unconditional amnesty.

Mr. Norton. Thank you.

Mr. Kastenmeier. Are there any other questions?

Mr. Norton, we are glad to have had you here today and have heard 

your viewpoint.

The next witness I would like to recognize is a gentleman who has 

appeared before this subcommittee and indeed many subcommittees 

of the Ju diciary Committee many times over the past years. Next, we 

have the distinguished lawyer from Washington, Joseph Ranh, Jr., 

vice chairman, Americans for Democratic Action.

Again your statement, Mr. Ranh, is brief, and you may proceed.

TEST IMON Y OF JOSEPH RAUH, JR ., VICE CHA IRMAN, AMER ICANS

FOR DEMOCRATIC ACTION; ACCOMPANIED BY LYNN PEARLE

Mr. Rauii. Thank you, Mr. Chairman. I will p ut the statement in 

the record and simply summarize in deference to your request and 

also in the hope that possibly, if I save a small amount of my time, 

it can go to one of the dra ft resisters who hasn’t had any time. There 

is a suggestion tha t Mr. Walden Collins of the National Council for 

Universal and Unconditional Amnesty could use 5 minutes if I would 

save it, and I will try to do so.

At the outset, I would like to thank this committee for holding 

these hearings. It is the best thing that has happened to amnesty thus 

far, and we are grateful to the committee for holding these hearings.

I speak, as the chairman said, for the Americans for Democratic 

Action, and with me today is Lynn Pearle, its legislative representative.

The points I would make in summary are as follows. First, Americans for Democratic Action calls for gran ting general unconditional 

amnesty to draft resisters and deserters, and to those who received 

less-than-honorable discharges for their opposition to the Indochinese 

war.

Second, in supporting that proposition, we support the bills tha t 

Representatives Abzug and Dellums have introduced for unconditional 

general amnesty.

Third, we call attention to the long and distinguished record and 

history of our Nation in granting amnesty.

If there is any one clear principle, it is th at at the end of each war, 

we try to wipe the slate clean.

Fourth, I think President Nixon has used the word “amnesty” as 

meaning “forgiveness.” I would have thought tha t the President had 

enough advisers to know that amnesty doesn’t mean forgiveness. It 

doesn’t have anything to do with forgiveness.

They at least ought to know over there at the W hite House to look 

at the root words. Amnesty comes from amnesia, which means to 

forget. No one here is asking for forgiveness for anybody. I ’m not 

asking for forgiveness for the people on my side of the war issue, nor 

am I willing to forgive those who were in "favor of the war. The point 

is that this country needs to forget the war. We need to put it behind 

us. We need to get together.
423

And I respectfully suggest th at by trying now to forget what went 

on in the past, to bind up the wounds of this country, tha t probably 

is the most important thing we can do.

Fifth, Americans for Democratic Action opposes conditions on amnesty because, if you put conditions on amnesty, you are implying 

guilt. The time has come no longer to imply guilt, no longer to imply 

that things were wrong, but to try to do a job of forgetting.

Now, the final and most im portant point I have to make is not in 

my statement.

I read the testimony of the Deputy Assistant Attorney General of 

the United States before this committee, and I ’m shocked by tha t 

testimony. His suggestion—the suggestion of an administration that 

has done the illegal things tha t have come to light—tha t it would be 

illegal for Congress to grant amnesty, is one of the most outrageous 

legal positions that the administration has taken.

I couldn’t believe that the story to this effect in the Washington Post 

on Saturday was true.

I didn’t believe it until I just read the written statement tha t Mr. 

Ulman presented to this committee. And I thank goodness that the 

committee is composed of distinguished lawyers.

There is just nothing to support the proposition that Congress cannot pass an amnesty law. Indeed, the Constitution makes perfectly 

clear that Congress can pass an amnesty law.

It is true that the President has a power of pardon and there would 

be serious questions if Congress tried to limit that power of pardon. 

But certainly, Congress’ power to raise and support armies, to provide and maintain a Navy, to provide for organizing, arming, and 

disciplining the militia, Congress’ power to make all laws necessary 

and proper for carrying into execution the foregoing powers, is perfectly clear, and it is equally clear tha t Congress can thus pass a general amnesty law.

Indeed, the Supreme Court made it clear that amnesty was a general 

law. This is a sentence from Burdick v. United States, 236 U.S. 79, back 

in 1915, which reads:

Amnesty is usually general, addressed to classes or even communities—a legislative act, or under legislation, constitutional or statutorj’—the act of th e supreme 

magistrate.

And so there is no question that Congress can pass this law. W hat 

would be questionable would be the Hogan and the other resolution 

which tries to limit the President’s power.

Amnesty is like many other powers in the Constitution; a joint 

power of the President and Congress.

As long as one does not try to hinder the other, there is no reason 

that both can’t go forward with full plenary power.

Our statement was prepared before the Government testified and 

is thus not directed to the legal side. But when I read about this in 

the paper, it seemed to me that the most important thing to do was to 

come up here and try to say something about the absurdity of the suggestion tha t Congress can’t act in this field. I had never heard tha t 

suggestion before. I have never felt tha t anybody could propose it.

But now tha t the Government has done this, is seems to me th at 

the first thing this committee ought to do is lay tha t canard to rest. 

And I strongly urge whatever else you do—and from the bottom of
424

our hearts in the Americans for Democratic Action we urge amnesty— 

but whatever else you do, let's lay to rest that canard that the Congress 

cannot act in this field.

Thank you, Mr. Chairman.

Mr. Kastenmeier. Thank you, Mr. Ranh.

Your entire statement will of course be placed in the record.

[The statement of Joseph L. Ranh, Jr., in full follows:]

Statement of J oseph L. Rauh, J r., on Behalf of Americans for Democratic

Action

I am Joseph L. Rauh, Jr., a vice-chairman of Americans for Democratic Action. 

With me is ADA’s legislative represen tativ e, Lynn Pearle . I appe ar here today 

to express ADA’s position for general, unconditional amnesty .

ADA’s policy statem ent on amnesty calls for “gran ting general, unconditional 

amnesty to dr aft resiste rs and dese rters and to those who received less than 

honora ble discharges for the ir opposition to the Indochinese war .” ADA the refore supp orts H.R. 236, H.R. 3100 and H.R. 5195 introduced by Reps. Bella Abzug 

and Ronald Dellums. These bills would gra nt general and uncond itional amnesty 

and restore full civil, politica l and property rights to all those who have been 

prosecuted for non-compliance with any requirem ent of mil itary service during 

the U.S. involvement in Indochina. They would also gra nt amnesty to civilians 

arrested for nonviolent acts of prot est aga inst the war. H.R. 10980, introduc ed 

by Rep. Paul McCloskey, would gra nt amnesty to mili tary resi ster s of the 

Indoch ina war and ADA supports it. However, we pre fer the Abzug-Dellums 

approach grantin g univ ersal amnesty.

ADA believes amnesty should be extended to all those who have suffered or 

face criminal or adm inis trat ive penalties for nonviolent acts of evasion or 

resis tance to the dr aft, to the military, or to the war in Indochin a.

Amnesty is not unprecedented. It has a long and distinguished tradition in 

American history. Afte r almost every mil itar y engagem ent in our history , 

whether at home or abroad, this country has extended amnesty to those who 

found themselves in conflict with national aut hority over these wars. Amnesties 

can be declared in the United Sta tes by Congress, by the Pres iden t actin g with 

the auth orization of Congress, or by the Pres iden t alone. Thi rty-four amnesties 

have been proclaimed to date by 13 American p reside nts.

Amnesty is the discretio nary act of a sovereign sta te which decides to abstain 

from prosecuting groups of citizens who have resisted obedience to the law for 

moral or politica l reasons. It does not mean “forgiving.” Amnesty is neit her a 

judg men t of condemnation nor an act of condonation. Its root word is related 

to amnesia , and it means “to forget.” Amnesty concerns the law ’s ability to undo 

what it has done in the past. To forgive a violation is to pardon. But amnesty 

is to forget, to erase, to blot out in recognition of a gre ate r inte rest —in this case 

the reconci liation of ou r n ation.

The case for amnesty is especially stron g in relation to the Indoch ina war, 

an unpreced ented war th at went completely outs ide the trad itio ns as well as 

the law of this nation. With the exception of the Civil War, after which the 

ent ire Confederacy was amnestied, no other conflict in our histo ry has been as 

divisive or produced as many acts of prote st as the In dochina war. Dr aft resis ters 

and military dese rter s were guilty of law-bre aking, but we are all awa re of the 

number of our men who refused to serve because they saw the Indoch ina war as 

immoral and illegal. For these men, the decision not to serve was a ma tte r of 

conscience.

Millions of othe r Americans also have adjudged the war in Indochina to he 

immoral and illegal. The 1964 presiden tial election was won by Lyndon Johnson 

on a no-war platform, and the 1968 election was won by Mr. Nixon who clearly 

pledged to end the war. Neither pledge was kept. Congress never declared war. 

yet continued to author ize personnel and funds for it.

Those who made the decisions to enter and escal ate the war in defiance of 

public opinion broke both moral and con stitu tional law. To prosecute those whose 

offense was refus al to serve in the Vietnam war, while fail ing to prosecute those 

government officials responsible for American involvement in this trag ic conflict, 

is to perm it the application of a double s tan dard or justic e. Amnesty would help 

elim inate this injustice.
425

Amnesty could also con tribu te to the politica l stre ngth of this country. A 

society can remain free only if politic al dissen t is permitted. A f ree society does 

not so much make a concession to politic al opponents when it gra nts amnesty as 

it contributes to its own s tren gth by e nsuring the contin uance of vigorous democra tic debate. Gra nting amnes ty to Vietnam war resisters would resto re to useful 

citizen ship those who resistance helped us discern the tru e natur e of our country’s Ind ochina involvement.

ADA canno t supi>ort conditio nal amnesty legislation such as H.R. 2167, H.R. 

10979 or H.R. 13001. Imposing c onditions for amnesty suggests guilt on the pa rt 

of those who are amnestied, and is a jterversion of both the meaning of service 

and the purpose of amnesty. Many wa r resiste rs—viewing the imposition of 

conditions as punitive in nat ure —would never accept conditional amnesty. 

These indiv iduals feel th at in obeying a higher moral law they did nothing th at 

deserves punish ment. Furt herm ore, we feel those affected have already been 

punis hed: Many have been brut alize d in pr iso ns ; othe rs have spent years in 

hiding; othe rs have been sepa rate d or ostracized from the ir families.

Most of us would like to forget the Indochina war. But the over hal f million 

men presently sufferin g some kind of legal disa bility—dr aft resis ters, deserters, 

those receiving less than honorable discharges —are living remin ders of the 

war. The Vietnam war will never be over for this country unti l the final step 

of gr anting amn esty to thes e men is taken.

Unfortun ately , those leade rs who have been most verbal about getting the 

war behind us have refused to tak e this final step. In his press conference last 

Jan ua ry 31, 1973, Pre sident Nixon asse rted : “Amnesty means forgiveness. We 

cannot provide forgiveness for them . . . If they (th e des ert ers ) wan t to retur n to the United State s, they must pay the pena lty.”

In shar p con tras t, af ter the Civil War, Pres iden t Andrew Johns on proclaimed 

amnesty for all those who had engaged in the conflict, stat ing :

A reta liator y or vindictive policy, atte nde d by unnece ssary disqualifications, 

pains, penaltie s, confiscations and disenfranch isements, now as always, could 

only tend to hind er reconci liation among the people and national resto ratio n, 

while it must seriously embarrass, obs truc t and repres s i>opular energie s and 

natio nal indu stry and enterpris e.

The general thrust of Andrew Johns on's stat ement is ju st as valid today as it 

was a c entury ago.

Wha t bet ter way for Pres iden t Nixon to achieve his stated purpose of 

“bring (ing) us together” tha n to supp ort amnes ty for the hund reds of thousands 

of men who remain outside our society because of this war. Wha t l>etter way to 

help resto re some shred of confidence in this crumpled adm inis trat ion tha n for 

its leade r to be stro ng enough and self assured enough to be compassion ate toward others. Amnesty would be a vehicle for a showing of national stre ngth and 

unity, so trag ically underm ined during our Vietnam years and so painfully 

abse nt duri ng the ordeal of W atergate.

The possibility th at Pre side nt Nixon will ever gra nt amnesty , however, seems 

rathe r remote, unless the Pre side nt comes to realize th at amne sty means to 

forget, not to forgive, and decides to act in the natio nal inter est.

ADA urges Congress to put this wa r behind us once and for all. Passage of 

general and uncond itional amnesty legisla tion would introd uce a meas ure of 

compassion and justi ce into the trag ic record of our experience in Vietnam.

Mr. Kastenmeier. I am grateful to you for addressing yourself 

to that question even though the Deputy Assistant Attorney General 

was less than certain on the issue. He stated “The subject of amnesty 

is one in which views are not entirely in agreement, but it is quite 

difficult to say that. Congress has the constitutional power.” So, in 

other words, he was not either very precise or absolutely convinced in 

his own mind. Rut he did certainly raise the specter and I will personally ask for a 9taff memorandum on the question. This will be fo r 

the purpose of the subcommittee members who are interested in the 

question of the constitutionality of Congress in this matter.

I rather personally share your position, but I think we must nonetheless explore it fully and develop a paper, which is to the issue.

3 1 - 6 5 8 0 — 74 ■29
426

I yie ld now to the gen tlem an from Illino is, Mr. Railsback.

Mr. Railsback. I wan t to than k Mr. Ranh and say th at I was going 

to ask him abo ut the leg ality of congressional amnesty bu t he has 

gone int o th at in some detail. I shall pass fo r now. Th an k you.

Mr. Kastenmeier. The gen tlem an from Massachusetts.

Mr. Drin an. Th an k you very much. I won der if you wa nt to comment on the advis ability of the board ? You hav e at leas t i n princi ple 

end orse d H.R . 236 and 3100. bu t both of these provide fo r a boa rd, 

as you know, in section 6, No. 1, which talks abo ut violation s th at 

were in a substan tial par t motivated by the individu al’s opposition 

ag ain st the war, prote sting again st the war, and so on.

How do we get aro und this?

The ind ivi dual seeking amn esty has to send his p ap ers to somebody 

and who should th at somebody be?

Mr. Rauh . Le t me un de rst an d, Con gressm an Dr ina n. As I un de rsta nd it, H.R . 236 and the other sim ilar bills, the W ar Resisters 

Ex onera tio n Act of 1973, they first gr an t a gen eral amn esty on dr af t 

resistance and on dese rtion. An d the provisi ons in section 6 deal— 

and if I am not correc t, please correct me because I don’t claim to 

be as famili ar with the actual bills as you gentlem en are—only deal 

with other Federal laws and with State or local laws where crimes 

may hav e been c omm itted in sub sta ntial pa rt mo tivated by opp osition 

to the war. So th at th is would be, if I un derst and it correctly, this 

would be the minor side of it. Th e ma jor side of the bills would be 

the general amnesty voted by Congress. The minor side would cover 

those peop le who had done othe r thing s th at were in opposition to 

the war.

It seems to me that th is is a pr etty good comprom ise. It might be 

difficult to create a genera l amn esty for all those circumstances because 

the situatio ns might be so varied. So I ra th er su pp ort wha t seems a 

comp romise, namely, the gen eral amn esty fo r dr af t resistance and 

for desertion, b ut some board to deal with other crim es more unu sual 

and more subject to mixed mo tivatio n and for th at reason we do 

su pp ort section 6.

Mr. Drin an. Is it your un de rst an din g th at th is pa rticul ar board 

would process all of the necessary papers of those who have to apply 

to somebody to get the gen eral amn esty , which is guara nte ed by thi s 

bill ?

Mr. Rauh. No, sir. I rea d the sta tut e to be exactly diff eren t. I read 

the sta tute that un der section 4, the amnesty is autom atic if you vio ­

lated one of the listed laws.

Section 6 only would come into play if you were not a vio lator or 

a po ten tial vio lator of one of the laws list ed in section 4.

So I would think section 6 is a useful addit ion to section 4, b ut n ot 

a lim itation.

Mr. Drin an. All rig ht, do you have some differences with eit he r of 

these bills? I know th at you prefer this bill over the other. Wo uld 

you hav e any suggestion s as to how we can, from yo ur point of view, 

imp rove these two bills ?

Mr. Rauh . I don’t feel I ’m qualified, sir, as I have not mad e an 

adequate study of the bills . All I can say is the bills go along the 

general lines of unc ond itional amn esty that I believe in. If it were 

the desire of the comm ittee, we could try to do the kind of legal job
427

tha t would be necessary to suggest possible ambiguities. My feeling 

is that a first rate job of draftsmanship was done here without saying 

tha t everything is perfect.

Mr. Drixax. I think that any legal input would be very good 

because I'm certain tha t the military along with a lot of other people 

would say tha t this individual was not motivated by anything conscientious and that this was really unrelated to anything to do with 

the war and in some cases I suppose they could make out a case.

You also said that both have equal power, namely the Congress and 

the Executive. Somebody said tha t we had concurrent power.

Mr. Rauii. I used the word “concurrent,” too, or I meant to. I would 

think tha t the President could grant a general amnesty. I would also 

believe that Congress could gran t a general amnesty although the 

President's veto power does come into play in legislation. So obviously the President has two powers: he has the constitutional pardon 

power and he has the constitutional veto power over Congress. But 

assuming now that there was a congressional amnesty and the President’s veto power was either not exercised or was overridden, I would 

say that the concurrent power of Congress there was plenary in the 

sense that you could act in the field.

The one thing Congress apparently can’t do, if you look at the 

cases, is limit the President. Congress can’t say that a Presidential 

pardon can't, be used, as it tried in one situation after the Civil W ar 

and then the Supreme Court knocked th at out. I don’t think Congress 

could say to the President, you may not grant amnesty.

Mr. Drixax. That is not our problem at the moment.

Mr. Rauii. There are a couple of resolutions to that effect. It is 

funny, but here you have Mr. Hogan’s resolution and the other resolution and here you have the administration talking about constitutionality when the only real constitutional question comes from their 

own crowd.

Mr. Drixan. Thank you very much.

Mr. Kastexmeier. On that point though, my recollection is these 

are only resolutions, tha t they don’t presume to have the power to 

override the President’s exercise, and so they are meaningless.

Mr. Rauii. I stand corrected, sir. They are either meaningless or 

unconstitutional. I’m willing to take either one.

Mr. Kastexmeier. I think the former is the case.

Mr. Railsback. Would the Chairman yield?

Mr. Kastexmeier. I yield.

Mr. Railsback. I just want to say that it is my recollection, however, that the Department of Justice also questions the validity of 

the Hogan resolution as well.

Mr. Rauii. If that is correct, I am in bad company.

Mr. Kastexmeier. I yield to the gentleman from New York.

Mr. Smith. I thank the Chairman. I want to welcome Mr. Ranh 

here and thank you for your statement.

Mr. Ranh, I would say that your statement about the constitutionality of the Congress enacting some amnesty legislation jibes 

correctly of course with the ACLU's same position. But I personally 

thought that the Assistant Attorney General made a pretty good case 

the other day of the fact that it is at least controversial whether we
428

have the pow er or not. Bu t in your opin ion the re is not controv ersy 

at all and it is absolutely clear th at we do?

Bu t I would like to say I am gla d th at the chair ma n is goi ng to 

have a staff memorand um made so th at we can rea lly look into it. 

Th an k you.

Mr. Kastenmeier. The gen tlem an from New Jer sey .

Mr. Sandman. Mr. Rauh, if I un derst and wh at you have said, you 

not only advocate uncon ditiona l amn esty , but is it tru e in your sta tement you also advocate the nullification of all discha rges of lesstha n-h onora ble ?

Mr. Rau ii. Th at is not exactly correct, sir. Let me rea d it aga in 

because I want to make clear precisely wha t I said. An d since I read 

our position earlie r, I can be precise.

We believe in amnesty. We believe in Congres s gr an tin g general 

unc ondition al amn esty to dr af t resiste rs and deserters and to those 

who received less-th an-hon orable disc harges fo r their opposition to 

the Ind o-C hinese war.

Th ere may be less -than-hon orable disc harges for many, m any o the r 

reasons. AB A took no position on that.

I find the re are some real difficulties with the less-tha n-hono rable 

discha rges for these othe r reasons. T here has been a gr eat d eal of oppositio n to some of the less -tha n-hono rable discha rge s and indeed you 

heard the Ur ba n League rep res ent ative tell of some of the racial 

prob lems tha t are involved. But t ha t was not the po sitio n t hat we took.

Th e position th at we took was m uch narrow er. W e oppose less-th anhonorable discha rges for opposition to the Indo-C hinese war. And 

I jus t want to make it clear th at I have some str on g feeling s of 

em pathy tow ard s those who are worrie d about less-tha n-hono rable 

discha rges beyond th at , but we took a more lim ited position, sir.

Mr. Sandman. Well, if this is the pri ncipa l reason used fo r some 

of the things fo r which t his less-than-hono rable d ischar ge was g ran ted , 

I would assume th at you r position would be fo r the full nullification 

of th at , would n’t it?

Mr. Rau ii. Yes; for the nullification of less-tha n-hono rable dis ­

cha rges where a sub sta ntial motivation for the discha rge was opp osition to the Indochinese war, yes, sir. You would be c orrect if you said 

that.

Mr. Sandman. B o you know of any time in Am erica’s histo ry where 

th at was eve r done ?

Mr. Rau ii. No; I d on’t, sir. But I don’t know of anv time in Am erican his tory where you had oppo sition to the w ar sim ila r to this exce pt 

in the Civil War. As fa r as I know, the amnes ty af te r the Civil W ar 

by Pr esiden t J ohnso n was very b road . "Whether it covered exactly th is 

point, I am not certain.

I jus t remember rea din g the his tor y hooks and rea ding tha t Pr es ident Jo hn so n’s amnesty was one of the broadest we ev er had.

Mr. Sandman. Yes; hut his was conditional as was Lincoln ’s and 

all of the other Pr esiden t’s. He req uired a going back to th eir troops 

within 60 day s and he required an oath of alle giance to the Go ver nment o f the U nited Sta tes.

Now, do you buy that pa rt of his condition?

Mr. Rau ii. I ’m sorry. I di dn ’t h ear th at . sir.
429

Mr. Sandman. The cond itions set fo rth by Lincoln as well as Jo hnson req uired two t hin gs: one, th at they go back to th eir tro ops within 

60 days and second, t ha t they pled ge allegian ce to the Government of 

the Un ite d States.

Now, would you buy those conditions tod ay ?

Mr. Rauh. i think the y would be a mis take tod ay when we a re tr y ­

ing to bin d up all the wounds. It may have worked the n, I can’t say 

but-----

Mr. Sandman. Did you say that wou ld be a m istake ?

Mr. Rau h. Yes ; I d id ,sir.

Mr. Sandman. Let me say as a hypothe tical, let's assume th at we 

pass a law th at only required a pub lic pled ge of alle giance to the 

Government of the U nited State s. Would you buy th at as a condition?

Mr. Rau h. I think th at would be a mistake although I can un de rsta nd it.

Mr. Sandman. Do you think it is a mistake to pledge allegian ce to 

the Government of the Un ite d State s? Is th at wh at you said ?

Mr. Rau ii. You are usin g your words. You can use them all you 

wan t, sir, bu t you can’t pu t words in my mou th. I have been a law yer 

longer than you have.

Mr. Sandman. B ut d id you say th at or d id n' t you? Yes o r no?

Mr. Rau h. Don’t act like you are Clarenc e Darrow. You are not. 

I will tell you exactly wha t my position is.

I t hi nk it is a mistake to single ou t any bod y in America for a pledge 

of alleg iance. I would give a pled ge of allegian ce any where where a 

general pled ge from everybody was required. Ri gh t now if you wa nt 

to have a pled ge of allegianc e in th is room, I will be the first to sta nd 

up a nd give it. But when you talk abo ut a pa rti cu lar grou p and single 

them out, you are doi ng som ething t hat rea lly hu rts the un ity of this 

cou ntry. And the po int is, you are sin gli ng people out as tho ugh the y 

are not fa ith fu l to their c ountry. An d I say do n't single o ut any gro up 

as bein g less fa ith fu l to their country than anybody else.

Mr. Sandman. L et’s explore th at. Of th ese tho usa nds th at are tod ay 

in Ca nada and Swed en, there happens to be several millions of us 

here in this country t ha t have some qu estio n abou t th ei r responsibility 

to this Governme nt. Do we not have a rig ht to ask them, if we pass 

an act of amnesty, will you publicly pled ge allegian ce to the Government of the Un ite d Sta tes? Wo uld th at be a fa ir law?

Mr. Rau ii. Absolutely not because you are sin gling them out 

and-----

Mr. Sandman. I have no fu rther questions.

Mr. Rauh. W ell, let me finish, you know, you don't like the answ er 

so you want to cut it off.

Mr. Kastenmeier. You may finish, of course.

Mr. Rauh. Tha nk you. sir.

It is because you are sin gli ng out a pa rti cu la r group th at I would 

oppose it. I am for a pledge of allegiance. I would be ha pp y to give 

it, as I said, rig ht now. But you can 't sing le someone out and say th at 

because you did som ething wrong , you m ust give a pledge o f allegianc e 

when, in fac t, they have no thi ng to be penit ent for.

Mr. Sandman. Well, when they did not respect the law of the 

cou ntry, they did som ething again st th eir allegian ce to the country, 

did the y not?
430

Mr. Rauh. I don’t think they did an ything more th an -----

Mr. Sandman. Well, you are entitl ed to your opinion.

Mr. Rauii [co nti nuing ]. Ag ain st the C onstitution t ha n you did. sir, 

when you as a haw k support ed this war.

Mr. Kastenmeier. If there are no other questions of the witness, 

I would like to express the gra tit ud e of the co mmittee fo r yo ur ap pe arance today. Bu t I would like t o , no tw ith sta nd ing your offer of 

gen erosity o f oth er prospective witnesses, r espectively decline t o g rant 

th at wish. We have a numb er of witnesses who must be heard from, 

and it must be in regu lar orde r.

Nonetheless, we are g rateful to you for y our appeara nce here today.

Our next witn ess is law pro fessor H ar ro p A. Fre em an, rep res enting the Fr iend s Com mittee on National Legislation , and Raoul Kulber g, Peac e Com mittee of the Fr ien ds Meetin g of Wa shington .

Gen tlem en, we are un der t ime pressure today so we are go in gt o ask 

you to be as brief as possible. If you can sum marize your statem ents 

for us, we would appre cia te it.

I believe, Mr. Ku lbe rg, y our statem ent is relatively brief. You may 

proceed if you wish.

TEST IMON Y OF HARRO P A. FRE EMAN, FRIEN DS COMMITTEE ON

NATIONAL LEG ISLATION ; ACCOMPANIED BY RAOUL KULBERG

Profe sso r F reeman. I am Har ro p Fre em an, pro fessor of law at 

Cornell and a member of the Fr iend s Com mittee on National Legis ­

lation . I would like to have t he statement and the a ttached state ments 

of the variou s meetings of t he Religious Society of Fr iend s th ro ug hout the cou ntry, which are attach ed to the statem ent, plac ed in the 

record.

Mr. Kastenmeier. W ith ou t objection the y will be so received.

[The statem ent of Har ro p A. Fre eman with attachm ents follow s:]

Testimony of Harrop A. Freeman on Behalf of the Friends Committtee on

National Legislation in Support of Unconditional Amnesty

I am Harrop A. Freeman, Prof essor of Law a t Cornell U niversity and a member 

of the Policy Committee of the Friends Committee on National Legislation of 

Washington, D.C., on whose beha lf this testimony is l»eing presented . The 

Frie nds Committee on National Legislation does not puri iort to speak for all 

Frie nds since the democratic organ izatio n and ideals of the Society of Friends 

make this impossible. But even on tills contro versia l and emotion-charged issue 

we hav e found consid erable unity. A copy of a stat eme nt approved by our General 

Committe e on Feb ruary 21. 1972, is attached at the end of my testimony, along 

with stateme nts from a number o f oth er F rien ds’ bodies.

We commend the chairman and members of this subcommittee for calling this 

series of public bearings on this issue. This is a ma tte r of importance not only 

to the y oung men involved but also to the ir families and friends and the general 

public.

We suppo rt the inte nt and purposes of those House bills now under discussion 

such as H.R. 236. H.R. 3100, and II.R. 5195. which provide for general and unconditional amnesty for all who may be deemed to have violated United State s 

laws with regard to the war in Indochina. For the ir 300-ye ar histo ry Quakers 

have been known for the ir opj»osition to war. the ir services for harmony and 

reconciliation for all people. These services have consistently been furnished 

withou t askin g who is righ t and who is wrong in a conflict, as a means of binding 

up the wounds of conflict, furthe rin g reconci liation between opposing parties 

and permitting men to assume task s for the fut ure as one family of huma nity. 

It is this same moral imperative of reconciliation tha t demand s the enactment 

now of full and unconditional amnesty.
431

Perhap s at no time in its histo ry has thi s natio n been so divided and in need 

of reconciliation. Not only are we divi ded party-to-party, age group-to-age group, 

and class-to-class by the most unpo pular war and the most pervasive government 

scandals in our history. But we are divided within groups, unabl e to a ttr ac t good 

candidates, uncle ar in the laws needed, unable to inspi re volu ntar y efforts to 

solve our energy, inflation, food, and other crises. If the re is one single thin g 

wre need f or America it is a cen tral and reconciled people.

I hesitate to pose as an aut hority on the legal question of amnesty , but I am 

the first person in over fifty y ears to resea rch the issue and publish the definitive 

law review article, “Amnesty Today,” in 1971 Law and the Social Order 515 

(inci den tally alongside an arti cle by Sen. Barry Goldwater on “The Pre sident ’s 

Warmaking Powe r” ). As tha t arti cle points out, the ancients well understood the 

desi rability and functio n of amnesty. Because of th e b itterness and legal p enalties 

atta ched to political opposition or revolt a large segment of the public (oft en 

the most politically knowle dgeable ) would be bar red from public office and 

service. Because such division deprived society of some of its best minds it was 

desir able th at society gra nt amnes ty to all previous jiolitical offenders. This was 

done by the la w decla ring (a s it often does by sta tut es of lim itations) oblivion or 

forg etting of these offenses. Wha t was intend ed was not “forgiveness” which 

would recognize th at the person had in fac t violated law but was in mercy 

rehabil itated. Rather, the Greek atta che d th eir word amnesty (sam e stem as 

am ne sia )—th at the law no longer looked upon the act as a wrong or violation. 

The Hebrews likewise had sho rter periods and the sabbatic once every seven 

years when all wrongs were forgotten .

Gradu ally, through Roman jurispru den ce and into Anglo-American law two 

concepts took shape—“pardon ,” lodged in the executive and given on a case-bycase basis by the one charge d with law enforc ement and repr esen ting a continue d recognition th at a crime had been committed but th at the person was 

“forgiven” so t ha t he did not have to pay the full penalty, and “amne sty,” lodged 

in the legi slature by which a new’ law’ wiped out the old crimes as to all persons 

in certa in classes, thereby “forg etting” or “obliterati ng” the crime and fully 

reconciling the persons to society.

Amnesty is as American as apple pie. It, or a “general” executive pardo n which 

approxim ates an amnesty, has been given over forty times in the Unite d States 

for nearly every politic al offense in our hist ory—for deserters, insu rrec tion ists, 

rebellion, the Civil War, dr af t evasion, mil itar y court martia ls, etc. So deeply 

ingrained in our system is the concept of amnesty th at in 1946 we proclaimed 

amnesty for over two million Jap anese and German political offenders. Nor are 

we alone in this. Nation s as diverse as Argentina, Brazil, Canada. Bulg aria. 

Greece, Indi a, Yugoslavia, the U.S.S.R. likewise gave post World Wa r II 

amnesti es. Wouldn’t it be a traves ty of American democracy if we could amnesty 

all these German and Jap anese w’ar “crim inal s” and not amnes ty our own sons 

and daughte rs, w’hose only offense in most instances was to see the Vietnam 

Wa r as cons titutiona lly illegal, morally wrong, and politic ally unwise fa r in 

advan ce of the general opinion of Congress and the i»eople?

I do not care to here play the numbers game w’hich has become so prevalent 

on thi s issue. It would seem enough th at we recognize th at the numb er affected 

is very large. If those receiving less tha n honorable disch arges from the armed 

services, and if those from form er wa rs unam nesti ed are included, we are tal king abou t from one to two million persons. Too much atte ntion may have been 

focused on the men who avoided the dr aft or left the service and are living 

abroad. This numbe r is estim ated at not over 30.000. On the other hand, those 

w’lio have less tha n honorable discha rges or w’ho have been arrested in anti -wa r 

protests numbe r well over 500.000. Their records currently prevent their employment and often the ir participation in the governmental process. They are mostly 

the young, the black, the economically deprived, whose burdens should not be 

added to. The means they took to protest may w’ell have been the only means 

available to them. We must not forget the real service they did to America 

in makin g us face the reality of Vietnam.

Furt herm ore, the re has been no general amnes ty in America since 1933. Thu s 

nearl y all politic al offenses surrounding World Wa r II, the Korea n War, the 

Vietnam War. the Peace time Dra ft, and the sta tus of American troops abroad , 

have gone unamn estied. While thi s is not a ma tte r directly before your Subcommitt ee in the pending legislation. I believe it is time we decla re oblivion to 

all these offenses.
432

A word needs to be said abo ut the Trum an “amnesty” of 1947. Today we h ear 

demands for “case-by-case” tre atm ent of offenders or an amnes ty condition ed on 

alte rna tive service for some period of time. These proposals are embodied in 

some of the bills curr entl y before thi s Subcommittee. In 1946 Congress autho rized and allowed Preside nt Tru man to set up an “amnesty board” specifically to 

consider the cases of 15,000 men convicted of dr aft evasion in World Wa r II. 

In over a ye ar’s time this committe e could process and allow less tha n ten 

percent of the cases. Tru man had to and did allow general pardo ns to a vastly 

gre ate r number of convicted dese rters and army men in 1952. It is probably 

prope r for a Pre sident in gra ntin g pardo ns to make thi s on a case-by-case basis 

and even to att ach conditions (as is often done by pro batio n). But the scope 

and purpose of amnesty is different.

Congress grants amnesty by a broad general la w ; it is intend ed to forge t the 

crime, not contin ue to judge it and exac t altern ativ e punish ment. One does not 

forget an offense and fu rth er reconciliation by continued requirements of alternat e service or penalties. Because amnesty has been so long delaye d and such a 

wide variety of offenses are involved, it becomes impossible as a prac tica l ma tter 

eith er to tre at the problem on a case-to-case basis or to devise an altern ativ e 

service for all instances. Nothing less than a full, uncond itional and, complete 

amnesty will suffice.

Henry Steele Commager and Ramsey Clark have pointed out that the argument 

for amnesty is historical, practical , and ethical. In my law review arti cle to 

which I have already alluded is the most complete hist ory of amnesty and, as I 

have stated here, the curre nt situ atio n is a most p ressing demand tlia t this history 

continue, th at Congress not forego its r ightful powers and defe r to the Pre side nt’s 

views on pardon (or, as he calls it, “amne sty” ). Congress has the power of 

amnesty and Congress should exercise it by enacting legisla tion which hopefully 

the Preside nt would supjxort by signing.

On the illum inat ing questio n of expediency it has many times been poin ted out 

th at those who knew the ropes and consulted dr af t counselors or had the money 

to hir e a lawyer escaped Vietnam service by defe rment as stud ents , by enro llment in the Reserve or Natio nal Guard, by medical discha rge, or variou s tech ­

nicalit ies. These were the service avoiders. But the young man who was poor 

and black and who knew of none of these “outlets ” of ten found himself trap ped 

in mil itar y service with few if any legal courses of action oi>en to express his 

opposition. There are many pra ctic al reasons for amnesty : the numbers involved, 

the continuing blot on records preventin g full part icip atio n in the community, 

the need for the bes t brain-power and the most socially alive citizens, t he impossibility of case-by-case or alternativ e-ser vice trea tme nt, and the cost to America of 

carryin g so many second-class citizens.

There is also a stro ng moral imperative for the gra nt of amnes ty. Durin g the 

Civil War it was the hawks in Congress who demanded the punishment of all 

sout hern ers and it was a compassionate presi dent who spoke “with malice toward 

none, w ith cha rity for all” a nd declare d, “No one need expect me to take any part 

in hanging or killing these men, even the worst of them. . . . Enough lives have 

been sacrificed.” The re are par ticu larl y stron g moral reasons for amnesty now. 

Fir st, we may note that a large porti on of those involved were just prem aturely 

right. Some were opposed to the war on moral-e thical grounds but did not sincerely believe they could meet the then c ourt requir ement for conscientious objection of belief in a Divine Being (du rin g the war the Supreme Court reverse d this 

la w ). Another group argu ed th at Congress had been d efra ude d into adop ting the 

Tonkin Gulf Resolution, th at the bombing of Cambodia and the war itse lf were 

illegal (America ns generally have come to accept much o f thi s arg um ent). Many 

with in the services found them racist and stacked again st the black and poor, 

and they rebelled (th e services belatedly acknowledged and tri ed to righ t some 

of these wro ngs ). Many prem ature ly took the position now accepted by Congress 

and th e public—-th at the war was a mistak e and th at we should extrica te ourselves as completely as possible. For s till othe rs the N uremb erg princip les decl aring the citizen 's obligation to refus e to be involved in wa r crime s and to violate 

local law if necessary was a real obligation. For anj- religious i>ersons (an d the 

Supreme Court has declar ed we a re a religious coun try ) the conflict between his 

obligation t o the st ate and to his God is central to his life.

He cann ot be a fascist and give complete obedience to the stat e. Whe ther he 

be Jew ish ( “You shall have no ot her gods before Me”) or Catholic ( “I am, sire, 

the king’s good serva nt, but I am God’s good s erv ant firs t") or Pro tes tan t ( “God 

alone is lord of conscience”) , the religious person must place his religious con-
433

science first. And this is of the most importance ultim ately to the state. As I have 

pointed out in “A Remonstrance for Conscience,” 1958 U. of Penna . L. Rev., the 

whole legal str uctur e of the sta te is based upon a general moral conscience built 

by the individ ual consciences. Ultimately on moral conscience rest s law, order, 

justice, and the aban donment of violence.

It is sometimes argued th at we dish onor tho se who served in the war by g ranting amnesty . Louise Ransom, Pres iden t of Americans for Amnesty, who lost a 

son in Vietnam, has replied adequ ately (a s have also many vet era ns) : “The only 

way we can dish onor those who died is to le arn nothing from them.”

America needs to rediscover its own soul. Not to go on with some i>ost-Vietnam 

coverup th at prete nds we h ave done no wrong and continu es t o punish those who 

earlies t called us to a moral position. Enough of Water gate-like coverups. Only 

by a complete, unconditional, and univ ersal amnesty can we regain our legal 

integ rity, our intel lect ual sanity, our political real ity, and our nationa l soul.

STA TEM ENT S OF SOME QUA KER BODIES ON AM NESTY

Friends Committee on National Legislation, Washington, D.C.

Friends have long realized the wounds of wa r are sustaine d by both combatan ts and non-combatants. A natio n suffers because of the moral burden warfare thr ust s on the indiv idual and his conscience. The moral and religious 

dilemmas posed by war and conscription result in an addi tional casu alty list.

The war in Indoch ina is increasingly recognized by Americans as immoral, 

illegal, and unjust, carried on in violatio n of the United Nations Ch arter and 

the United States Constitution . Our first prio rity remains to stop the killing in 

Indochina.

The Nuremberg principles, supported by the United States , the U.S.S.R., 

France, and Grea t Brit ain, and subseq uently approved by the United Nations, 

emphasize th at final responsibility for par ticipation in morally reprehensiv le acts 

aga inst h uma nity rests with the individ ual.

We believe most persons who h ave refuse d to par ticipate in mil itary service or 

have opposed consc ription d urin g the course of th e war in Indochina have done so 

on the ground th at they were conscientiously opposed to the war or war time militar y service. However, proof of conscience is inherentl y difficult, and experience 

has proved th at efforts to judge co nscientiou sness have been marked all too often 

by refusals to recognize sincere beliefs. We th ere for e urge th at all persons who 

have refused mil itary service or conscription should not be punish ed for such 

refusal, whe ther it took place before, during , or after military service.

We urge the Pres iden t and Congress, in a spirit of reconciliation, to join in a 

full and uncond itional amnesty for all those who are deemed to have violated 

U.S. laws in this regard. Thus, the government should: (1 ) permit the ret urn of 

those now outside the United States , eit her to stay or to visit; (2 ) provide for 

prompt release of all cur ren tly held in civili an or military prisons; (3 ) drop 

pending and potentia l prosecutions; and (4 ) resto re civil righ ts to all who have 

completed prison terms or otherwise lost such rights due to the ir opposition to 

the war.

(Approved by the General Committee, Febru ary 2 1,1 97 2)

A FSC P ol icy State m ent on A m nest y

The people of the United Stat es have before them the questio n of amnesty for 

those who violated civil or mili tary law in the course of active opposition to the 

war in Indochina, or in the course of removing themselv es from participati on in 

or suppo rt of th at war.

The American Friends Service Committe e urges the United Sta tes Government to d eclare an amnesty for all these persons.

The American Frie nds Service Committee is opposed to all wa r and all conscript ion because of our religious fait h. We are opposed to par ticipation in war, 

preparatio n for wa r and civilian supp ort of war. We are opposed to civil war. 

intern atio nal war, foreign wars, war s in this country, wars of defense, war s of 

aggression, popu lar w ars and u npop ular wars.

Starting from th at position, we identify with thos e for whom we ar e asking 

amnesty. We do this even while rejectin g methods, such as evasion and violence, 

used by some. We believe in c onfr onta tion with evil, no t evasion, and in nonviolent 

dire ct action aga ins t evil, not violence. These moral judg ments we make for our ­

selves, not for others.
434

In one sense, those in need of amnesty are accidential victims. In fairn ess, they 

should share the good fortune of all those who missed the dr af t throu gh the 

lotte ry, deferm ents, etc. Others have already received the ir “amne sty” through 

the dropping of many cases of military charges and of crim inal charges before 

civili an courts.

Amnesty does not involve making case by case moral, politic al or pragm atic 

judgments. Amnesty is not an ex i>ost facto stamp of approval on a class of 

offenses formerly seen as illegal or anti-social. A declarati on of amnes ty is a 

politica l act which, like many politica l acts, may be insp ired by a gre at many 

different motiv ations and judgments.

Amnesty does not mean forgiveness, nor is forgiveness being sought. Amnesty 

comes from a Greek word meaning forgetfulness and a Fren ch word meaning 

forgotten. Amnesty means forg etting a broad classification of offenses, being in 

a s tate of amnes ia i nsof ar as ce rtain events a re concerned.

Afte r World War II so-called amnesty was granted to only 1,500 of approximately 15,000 whose conscience had led them to break the Selective Service law. 

The fact th at the ir objections were religiously based serves to unders core the 

continu ed pref eren tial trea tment gran ted religious objectors. We reject this 

special privilege f or limited kinds of objection. Although the AFSC firmly believes 

these men should have amnesty, we consider it inappropriate to make a special 

plea for these persons.

There are othe rs with much gre ate r need, with trad itio ns quite different than 

ours, many of whom have no objection to wa r in general but came to have profound objections to the Indochina war. Many of these men lef t this country to 

avoid Selective Service or to sep arate themselve s from the armed forces. Many 

of them would like to return. They and tliei r families ar e torn by separation, 

financial difficulties, fea r and many other problems resulting from havin g left 

the country under these circumstances. Others live in this country, some in apprehensio n underground, some in prison, some with prison term s completed, but 

carryin g perma nent legal disa bilities as a result.

The misery in the lives of these people should not be used as a political f ootball. 

Ins ofa r as the amnes ty issue is concerned let us put behind us the controversies 

of the war in Indochin a. Amnesty is nei the r a justi ficat ion of the legal offenses 

committed, nor a judgm ent on the war giving rise to those offenses.

The unconte sted fact is th at the war in Indochina has torn the fabr ic of 

American society as no othe r war has done since our own Civil War, now more 

tha n 100 years behind us. Out of tha t war came Lincoln’s gre at call for reconcil iation, “with malice toward none.”

In the spirit of such reconciliation, let u s begin to h eal the wounds of this w ar, 

even while we recognize th at we are still a long way from peace in Indochina. 

As a simple act of mercy which will help thousands of persons to reclaim the ir 

rightfu l role as American citizens there must be a n amnesty. As one small step 

of many needed to get on with the building of peace, let the re be an offical for ­

getti ng of offenses growing out of opposition to or personal with draw al from the 

war in Indochin a.

[Approved by AFSC Board of Directors, Apr. 14, 1973.]

PH ILAD EL PH IA YEARLY MEETING OF TH E RELIGIOUS SOCIETY OF FRIENDS INTRODUCTION

In the conflict between the righ ts of conscience and the regulatio ns of the Selective Service and military systems, we reaffirm our belief in the Peace Testimony 

which calls for opposition to all wars a nd conscription. Although the final burden 

of decision about the extent of resistance to war rests with each individual, we 

decla re th at our first allegiance is to the God o f love. If this allegiance is chal ­

lenged by the demand s of the state, we'mu st obey God ra th er tha n the state . 

The viola tors of Selective Service Regul ation s or the Universal Code of Military 

Justice, in exile, in hiding, or in prison, dese rters from the military , soldiers 

release d with less tha n honorable discharg es, and resi stor s with prison records 

include those who, by reason of conscience, refused to par tici pat e in the violence 

inheren t in imposing this nation ’s will upon an alien cultu re.

In wa r the re are no victors, only victims. Pa rticip ants and non-parti cipan ts 

alike suffer the emotional damage of disunity and discord. After the most divisive war in our histo ry we must und erst and th at our overriding national need 

is for reconciliation. Amnesty, we believe, is a first step towa rds reconciliation. 

Amnesty is “legal oblivion” as distinct from “pardo n.” It would eras e injus tices 

of th e pa st and thus help us face the f utu re with out bitte rnes s.
435

MINUTES

Philadelphia Yearly Meeting of the Religious Society of Frie nds (Quak ers ) 

urges the Pres iden t a nd the Congress of the United States—

1. To bring about a general and uncond itional amnesty for all who disobeyed 

laws and orders which, if observed, would have involved them in the war system 

duri ng the Indochina war.

2. To expunge th eir criminal records.

3. To resto re the ir civil liberties.

4. To dro p all p resen t and fut ure prosecutions and to free those curre ntly u nder 

legal res traint.

If this natio n is to regain a sense of unit y and common purpose, nothing less 

will do.

[Adopted by Philadelphia Yearly Meeting of the Religious Society of Friends 

in annu al session, Mar. 30, 1973. ]

SOUTHEASTERN YEARLY MEETING OF FRIENDS

The Southeas tern Yearly Meeting, in conference this Ea ste r weekend, urges 

the executive, legislat ive, and judicia l branc hes of our government to hold to 

the teachings of Jesu s in any delib erati ons on amnesty and the wiping out of 

sanctions aga inst those citizens who refuse d to tak e up arms again st th e Vietnamese. Both those who openly placed their lives aga inst a law they felt violated 

the ir conscience, and who suffered prison terms or altern ativ e sen dee and those 

who simply determ ined they would not par ticipa te in the killin g and maiming 

and the mili tary effort they disag reed with by whatever means came to hand, 

are de servin g of e arly action on the ap rt of the ir governm ent und er the guidance 

of those princip les tau ght by the Prince of Peace whose banner so many of us 

ass ert to follow.

[Approved by Yearly Meeting, Apr. 1973.]

NEW YORK YEARLY MEETING OF THE RELIGIOUS SOCIETY OF FRIENDR

The ange r and hat red engendered by the war in South Ea st Asia must be 

healed. Our American Society needs a redire ction o f em phasis towa rds social and 

psychological reconciliation and reconstruction. Our energies are most urgently 

needed in the conservation of all resources, huma n and enviro nmental. Our love 

and reconciling s pir it must reach out to all who have been involved in this tra gic 

episode in the life of our Nation including those who chose mil itar y send ee as 

well as those who could not in good conscience accept such service.

Although we believe most persons who refused to pa rtic ipa te in m ilita ry service 

or have opposed conscription duri ng the cours e of the war in Indochina have 

done so on t he g round that th ey were conscien tiously opposed to th e war o r wartime military sendee, proof of conscience is inherentl y difficult. Experie nce has 

proved th at efforts to judge conscien tiousness have l>een mark ed all too often 

by refu sals to recognize sincere beliefs. We ther efor e urge th at all persons who 

have refuse d mili tary service or conscriptio n should not be punishe d for such 

refusal, whether it took place before, durin g, or after milita ry service.

Illegal acts have been committed both in the prosecution of the wa r in South 

Ea st Asia and in resis tance to the war. We urge frien ds to join in the call for a 

universal and uncond itional amnesty for all those who are deemed to nave 

violated U.S. laws rela ting to military service. We seek “malice toward none an d 

cha rity t owa rd all.”

[Approved by New York Yearly Meeting Aug. 3,1 97 3.]

NEW ENGLAND YEARLY MEETING OF FRIENDS

New Engla nd Yearly Meeting of Frien ds, stan din g on the hist oric Quak er 

peace testimony, denies all war and violence between persons and natio ns. As 

we have suppo rted our members who have conscientiously opjx>sed the U.S. war 

in Indochina, we now supp ort all those who need amnes ty because of violations 

of law in the ir a cts of protest.

We urge the Pres iden t and Congress to gra nt full and uncon ditional amnes ty 

to all those who face or have suffered crim inal penaltie s for evading or resisting 

the dr af t or mil itar y service, whe ther unde r Selective Service or mili tary la w : 

th at is—
436

1. to permit the re tur n of those outside the IL S.;

2. to provide for prompt release and restorat ion of full civil righ ts of all currently held in civilia n or mi litary prisons ;

3. to drop pending and po tenti al prosecutions ; and

4.. to resto re full civil rights to all who have completed prison terms or otherwise lost suc h righ ts due to the ir opposition to the war.

[Approved by New Engla nd Yearly Meeting of Frie nds at its annual sessions 

held July-A ug. 4, 1973.]

BALTIMORE YEARLY MEE TING OF TH E RELIGIOUS SOCIETY OF FRIE NDS

Although the direct part icip atio n by United Stat es arme d forces in the Indochina conflict appears to be d rawing to a close, the wounds of th at war will take 

many years and much effort to heal. Not only Indochina has suf fered; many 

Americans h ave been killed or wounded, while the moral and religious dilemmas 

posed by the war and conscription have resulted in still other casu alty lists. 

Americans have been imprisoned for non-cooperation with the selectiv e service 

act, for nonviolent action s aga ins t the wa r machinery, and for peacefully demonstr ati ng th eir opposition to the policies of our government. Others have been 

forced into hiding or exile. Some acquired new in sigh ts while in active milit ary 

service and refuse d to engage in wh at they had come to consider crimes against 

huma nity. This often resul ted in imprisonment, dishonorable discharge, or 

desertion.

We realize th at complete healin g of the wounds of war can come only in a 

spi rit of reconciliation. We remember th at the word “amne sty” comes from the 

same root as “amnesi a,” meaning the forgetting of past action s, and t ha t it is to 

be distin guish ed from the legal term “pardon ,” which is the forgiving of pas t 

actions. We urge the Pre side nt and the Congress to join in decla ring full and 

unconditional amnesty for a ll who are deemed by the government to have violated 

United iStates laws with resj>ect to the war in Indochina and the dra ft. Thus, w’e 

ask our go vernment to—

1. per mit the r etu rn of those in e xi le;

2. provide for the promp t release of all prisoners ;

3. drop pending and potential prosecutions ;

4. resto re civil rights and h onorab le discharges.

The Baltim ore Yearly Meeting of the Society of Friends reaffirms its 300 year 

old testimony aga inst all war, and main tains that w ar is the greates t crime that 

can be perp etra ted aga inst mankind. We feel compassion for those who have 

part icip ated in this war, as well a s for those who face punishmen t for obeying a 

higher law and refusing to particip ate. We look to wa rd peace and unde rstan ding 

among a ll men, and ask others t o join with us in this move tow ard reconciliation.

[Approved by Baltim ore Yearly Meeting in annual session, Aug. 5, 1973.]

WESTERN YEARLY MEE TING OF FRIE NDS CHURCH

War is abho rrent to all mankind. It is contrary to the teachin gs of Christ and 

is inconsistent with productive, happy lives o f all men. (See Western Yearly 

Meeting Friends Peace Testimony, 1868.)

Affirming the brotherhood of all mankin d in a siririt of reconciliation and 

Christia n love, and without being judgm ental, we recognize our responsibility to 

all of those affected by the war in Indochina. We urge Weste rn Yearly Meeting 

of Frie nds and Frien ds everyw here to suppor t the F. U. M. Indochina Appeal 

or oth er sim ilar aid projects which attempt to alleviate the need and suffering 

of the people of Indochina.

For those with whom we are more closely associated at home we urge a reconstruction of lives which wrere significantly and adversely disrupted by our 

Indochina involvement.

To th is end we urge th at th e government—

1. establish policies which will be conducive to a normal re-ent ry into civilian 

life for those members of the armed forces who may have been injur ed mentally , 

physically, o r sp iritu ally and t hus ar e suffering from a lack of the freedoms of life. 

. 2. estab lish procedures whereby those may ret urn to the ir normal lives and 

sta ture who chose to exercise the alt ern ative of temp orarily re-esta blish ing the ir 

residen ce durin g the period in which armed personnel were engaged in mili tary 

conflict in Southeast Asia and those who chose to remain in the ir established 

residenc e an d were incar cerated ns a result of fail ure to comply with conscription 

laws.
437

3. establish prompt procedure for a return to a normal productive life for those 

persons whose cases have not been brought to tria l or a gain st whom charges may 

not y et have bene brought.

[Approved by Western Yearly Meeting at annual sessions August 1073.] 

WIL MIN GTO N (OH IO) YEARLY MEETING

Wilmington Yearly Meeting rejoices in the reduction of the American involvement in Indo-China, and earn estly prays for the tota l cessation of war in our 

world. Our thoughts turn to the m inistry of reconciliation and love to all of God’s 

people and thus to the issue of amnesty.

We remember t ha t the word “amnesty” comes from the same root as “am nesia ,” 

meaning the forgetting of pa st actions, and that it is to be distinguished from the 

legal term “pardon” which is the forgiving of past actions. We urge the President 

and the Congress to join in declaring full and unconditional amnesty for all men 

and women who are deemed by the government to have violated U.S. laws with 

respect to the war in Indo-China and the draft. Thus, we ask our government to—

1. permit the re tur n of those in exile.

2. provide for the prompt release of all prisoners,

3. drop pending and potential prosecutions,

4. resto re civil rights and honorable discharges.

The religious he ritage which we sh are as members of the Society of Friends and 

the freedoms which we sh are as citizens of the United States of America comi»el 

us to make th is request.

[Approved by the Yearly Meeting August 1973.]

Profe sso r F reeman. I will try to summarize my sta tem ent and dis ­

cuss the h igh poin ts.

Now, because I believe I am one cap abl e of doing it, I would like to 

discuss the que stion of the lepi l pow er of Congress.

I have here, if the com mittee desires it, or if counsel fo r th e coinmitte desire s it, 20 copies of a law review article, which I publishe d in 

1971 in Law and the Social Ord er and it is en titled “A n Histo ric al 

Justific ati on And Leg al Basis For Am nesty To day.” Th is comes out 

with the conclusion t hat Congress and o nly Congress ha s th e pow er of 

general amnesty as com pared to the pow er of pardo n, whi ch exists in 

the Presidency . I shall try to discuss some of the cases th at a re refer red 

to the re and I would unite with alm ost ev ery thing that Joseph Ra uh 

has said in thi s regard .

Mr. Kastenmeier. We would be most pleased to receive the law 

review art icle you refer red to bo th for the record a nd for ou r own ge nera l needs. W ith ou t obje ction, th at will be plac ed in the record at th is 

point.

[The document referre d to follow s:]

439

An Historical Justification and 

Imnesty Today

We live in a time of political activism, and we see men imprisoned

for what, at least arguably, are “political crimes.” Professor Freeman,

convinced that America “cannot afford to ‘banish’ its potential leaders

—those who ardently seek change as well as those who defend the

status quo,” asserts that amnesty is a proper method for society to

forgive those acts that, although denominated criminal, are basically

political. In this article he examines the concept of amnesty— its history, its relation to the pardon, when and by whom it may be granted

—and concludes that the Congress and the President should take immediate steps to restore to full citizenship all “political prisoners.”

Even a casual observer of the American political scene of recent years could 

hardly fail to wonder whether there has ever been a time in our history 

when the nation has been so divided, the opposition to a war been so widespread, the cry been so loud on the one hand for ‘law and order” and on 

the other that liberty is sacrificed and justice is dead. One wonders, too, if the 

courts and jails have ever been so full of persons who are, at le&st colorably, 

political protestors.* 1 2

Today there may be more than 140,000 AWOL’s and postinduction draft 

resisters, 100,000 men who failed to register or otherwise avoided the draft, 

and 35,000 civilians since the beginning of World War II who have been 

convicted in draft cases.1

 An untold number of soldiers have been disciplined 

for antiwar sentiments and activities; perhaps 200,000 people of all ages 

have been arrested and imprisoned or fined for antiwar marches, demon-

•Professor of Law, Cornell University. A.B. 1929, LL.B. 1930, S.J.D. 1945, Cornell

University.

1. The meaning of the term "political” is discussed and illustrated later in this article. 

See pages 529—33 infra. On the one hand, we cannot merely accept a defendant’s 

statement that his act was political; on the other hand, we cannot accept the view 

that no felony can be political. (Perhaps we cannot even accept the idea that violence 

is nonpolitical, for revolution is generally recognized as political.) Tentatively, "political” should be used to refer to any acts, demonstrations, or statements which have 

the primary purpose of criticizing government policy or laws, bringing about governmental change, or seeking to gain control of government.

2. These figures were compiled by the author from files of the Swarthmore Library 

Peace Collection, Central Committee for Conscientious Objectors, National Committee 

for Amnesty Now, and Committees in Canada, Japan, and Scandinavia. These esti-
440

strations, and mobilizations—a sizeable number being tried or convicted for 

civil disobedience, burning of draft records, and like offenses; and other 

groups have been charged with offenses relating to support of groups such 

as the Black Panthers, or demonstrations at political conventions as in Chicago. All these offenses are, or are variously asserted to be, political offenses. 

They are all presently unamnestied and unpardoned. These are not in any 

sense ordinary criminals or those who refuse the duties of society or seek to 

save their own skins. We are talking about priests like Berrigan and Groppi, 

academics like Lynn, baby doctors like Spock, and the sons and daughters 

of the whole country—from middle America to Cabinet members. From a 

survey taken at Cornell, I would estimate that in the college community today 

(on which we must depend for future leadership) probably one in every three 

has in some way been involved in these “political crimes,” or has been 

acquainted with someone who has. For many personally, or for their friends, 

conviction has actually taken away the right to participate in government. 

I. A Thesis

The author would advance this thesis: Any nation, and particularly a 

democracy, needs all its best minds. It cannot afford to “banish” its potential 

leaders—those who ardently seek change as well as those who defend the 

status quo. Amnesty was devised as a method for society to forgive those 

whose acts were basically political, even though at the time society branded 

them as criminal, so that there should be constantly built the “nation . . . 

indivisible” to which we are dedicated by the Pledge of Allegiance.’

What are the grounds upon which those who dissent have been disabled 

by law from their civil rights? Some examples may assist. The Supreme 

Court has upheld the Selective Service provision that conscientious objectors 

must be “against war in any form,”4 although it is well known that Catholics 

distinguish between just and unjust wars, and Jehovah’s Witnesses are against 

all war except Armageddon. Religion joins philosophy, as well as politics, as 

an impetus to dissent. Father Berrigan insisted upon burning draft records, 

arguing that “some property has no right to exist.” Spock, Gregory, Dellinger, 

and nearly every other person claiming his crime, if any, was “political,” 

have asserted first amendment rights.

Speech is precious to free men; but when exercised by a minority it may

mates are similar to those currently being used by Senator Robert Taft, N.Y. Times, 

Jan. 8, 1972, at 29, col. 4—6; by the National Committee for Amnesty Now, statement 

issued Oct. 15, 1971; and to those reported in Time, Jan. 10, 1972, at 17. See also

page 519 infra. To take just one example, Pentagon figures indicate that in the first 

10 months of fiscal year 1971 there were 68,449 desertions from the United States 

Army, or a rate of 62.6 per 1000 men, up nearly 20 percent from the 52.3 rate for 

fiscal year 1970. N.Y. Times, Aug. 15, 1971, § 4 (Week in Review) at 4, col. 7.

3. 36 U.S.C. § 172 (1970).

4. Gillette v. United States, 401 U.S. 437 (1971).
441

occasion political suspicion, which, in turn, may give rise to unsubstantiated 

criminal charges. It must never be forgotten that charges of the most severe 

nature are made against persons in high places during periods of great 

national stress. For example, President Truman was accused of treason by 

Senator Joseph McCarthy; and John L. Lewis was charged with “virtual 

treason” for refusing to settle a coal dispute.1 The Supreme Court upholds 

even overzealous criticisms of public institutions and figures, and has abolished the rule of seditious libel.* Since 1967, over 4000 clergymen and laymen 

have counseled and aided conscientious draft refusers even though this may 

violate federal law.5 67 8 These men are lawyers, clergy, doctors—leaders who 

have acted upon their political beliefs. And we must not forget the warning of the late Justice Hugo L. Black:

When [America] begins to send its dissenters . . . to jail, the liberties 

indispensable to its existence must be fast disappearing. . . .

. . . There are grim reminders all around this world that the distance between individual liberty and firing squads is not always 

as far as it seems.*

No matter where one stands in the political spectrum, it cannot be gainsaid 

that the American concept of government stands foremost for political freedom, whose handmaiden is the right of all to the public forum. If dissenters 

are denied their forum and their leaders, and (by civil disabilities and otherwise) their dignity and civil rights such as that to hold public office, then 

they are denied their American heritage, and America is denied their counsel. 

In the United States as elsewhere, the history of amnesty supports the 

thesis for amnesty. Once a major upheaval has crested, it is endemic in 

modem history among civilized governments to refuse to bear political 

grudges against those who, by reason of their political views alone, have 

sought to turn aside the juggernaut of a majority whom they sincerely believed to be wrong. As a society now experiencing the waning phase of one 

such an upheaval, Vietnam (even as others wax or wane), it behooves us 

to examine anew what history can contribute to a resolution of our urgent 

current problems, if we are to approach these with reasoned intelligence.

II. History of Amnesty—Non-American

Amnesty is a public law concept, derived from the Greek amnestia (meaning oblivion, intentional overlooking—the same stem as amnesia). It is the

5. Russ, Does the President Stitt Hav e Am nes tyin g Power?, 16 Miss. L.T. 127, 127 (1 94 4) . 

The New York Times publication of The Pen tagon Papers ha^ bee n called virtual 

if not actua l treason. N.Y. Times, June 17, 1971, at 18, col. 6.

6. Monitor Patriot Co. v. Roy, 401 U.S. 265 (1 97 1) . See Time , Inc. v. Pape, 401 U.S. 

279 (197 1) ; Greenbelt Coop. Publ. Ass’n v. Bresler, 398 U.S. 6 (1 97 0) ; New York 

Times Co. v. Sullivan, 3 76 U.S. 254 (196 4).

7. 50 U.S.C. App. § 462 (197 0).

8. Braden v. United States, 365 U.S. 431, 444—46 (196 1) (disse ntin g opinion).

31-6 58 0 - 74 - 30
442

act of the legal sovereign voluntarily extinguishing certain “criminal” acts 

against the state, and almost always involves political offenses. Some view 

it as a principle of international law that is binding on the sovereign, a kind 

of jus gentium*

Most historians view amnesty’s clearest beginning in the act of Thrasybulus 

(403 B.C.), who, after the expulsion of the Tyrants from Athens, forbade 

further action against citizens for previous political acts, and required an 

oath of amnesty to erase all political strife from memory. There are other 

examples in the Greek period.10 In Roman law, the practice became common 

after attempts at political overthrow or intrigue, and was known as restitutio

in integrum.11

France has a long history of amnesties after vitually every civil strife. These 

were called lettres de remission generate or lettres d’abolition. Instances11 include the truce between Armaguacs and Burgundians (1412),11 amnesties 

after the Bordeaux civil riots (1548),14 the Edict of Nantes (1598),“ nearly 

thirty examples between the Napoleonic imperial decree of 1802 and the 

amnesty of 1881 (following the Paris Commune and 1871 civil disturbances),1’ 

and amnesties of persons convicted of war-related crimes in World War II 

and the Algerian war.17

9.At least one court has said that the term “properly belongs to international law . . . . 

[Amnesty applies] to rebellions which by their magnitude are brought within the rules 

of international law . . . .” Knote v. United States, 10 Ct. Cl. 397, 407 (1874). The 

international law book best known at the formation of America, and constantly 

referred to in the 1860—70 American discussions of amnesty said:

It is a much-discussed question whether the sovereign must observe the 

ordinary laws of war in dealing with rebellious subjects who have openly 

taken up arms against him . . . .

. . . Subjects who rise up against their prince without cause deserve the 

severest punishment. But here, also, the number of the guilty forces the 

sovereign to show mercy . . . .

. . . If they have revolted without cause . . . the sovereign must even 

then . . . grant amnesty to the greater number of them.

3 E. de Vattel, The Law of Nations 336—40 (Fenwick transl. 1916).

10. A. Dorjahn, Political Forciveness in Old Athens (1970); J. Bury, A History

of Greece (rev. ed. 1951). In Biblical times a kind of amnesty was a part of the 

festival cycle; old grudges were forgiven every seventh year.

11. See 1 Encyclopaedia Britannica Amnesty 807 (1971); T. Mommsen, Romisches

Strafrecht 457 (1955); G. Rein, Kriminalrecht der Romer 264 (1962).

12. For greater detail the following works are of value: L. Cabat, De l’Amnistie (1904); 

P. Husson, La Reserve des Droits des Tiers dans les Lois d’Amnistie (1922); 

P. Priguon, La Nouvelle Amnistie (1920).

13. See generally 2 F. Guizot, The History of France from the Earliest Times to

1848, at 207 (R. Black transl. undated).

14. See generally id. at 186—87.

15. See generally id. at 444—46; A. Maurois, A History of France 167 (H. Binsse 

transl. 1956).

16. E.g., general amnesty of 1859 granted by Napoleon III for all political prisoners. 

2 C. Guicnebert, A Short History of the French People 614 (F. Richmond transl. 

1930).

17. See, e.g., 1 Encyclopedia Americana Algeria 570 (197 1).
443

With English history we begin to see both the importance of amnesty to 

Anglo-American law and the source of much of the confusion between pardon 

and amnesty, hereafter discussed.1* The most famous early amnesties were 

those granted in 1651 after the Civil War,1* in 1660 by Charles II 10 and in 

1902 following the Boer War.” Amnesties were also granted following World 

Wars I and II.” The theory of pardons, remissions, and amnesties in Britain 

was that these were all “sovereign” powers, embodied in the King who had 

powers in many capacities: the King as executive, as judiciary, and the King 

in Parliament. Because all pardons, remissions, and amnesties were issued in 

the name of the King, little attention was paid to whether Parliament acted. 

Actually, in nearly every instance general amnesties were given by the King 

in Parliament.”

The practice of amnesty is well developed in many other countries. In the first year following World War II, amnesties were granted 

to political prisoners in Argentina, Brazil, and Canada, and perhaps elsewhere in the Americas.” Similar action could be found in the same year in 

Bulgaria, Greece, India, Italy, the U.S.S.R., Yugoslavia, and other European 

countries.” In 1946, General MacArthur released nearly one million political 

prisoners in Japan,” and General Clay proclaimed an “amnesty” for over 

one million German political offenders under the age of 27.”

Before turning to the American experience, we should take note of the size 

of the international problem and of the organization Amnesty International.” 

This London-based group has estimated that there are one-half million individuals in jail principally because of their beliefs: Jehova’s Witnesses in Spain 

intransigently opposed to military service, 1200 Greeks rounded up in the 

1967 colonels’ coup, several thousand persons in Ethiopia, perhaps 100,000 

in Indonesia, and many others.” Amnesty International was formed in 1961

18. See pages 524—27 infra.

19. Gagliardi, Am nesty, in Encyclopedia Giuridica Italiana (188 4).

20. “An Act of Indemnity and Oblivion.” P. Morrah, 1660: The Year of Restoration

170 (1 96 0) ; 1 Encyclopaedia Britannica Am nesty 808 (1 97 1) .

21. Tre aty of Vereeniging, May, 1902. 1 Encyclopaedia Britannica Am nesty 807 (197 1).

22. Id. at 808.

23. Dr. Groe nvelt’s Case, 91 Eng. Rep. 1038 (K.B. 169 7), which had early said: “ [A]s [the

King] cannot bu t have the adm inistration of public revenge, so he cannot bu t have 

a power to rem it it by his pard ons . . . .” Id. at 1039. See also Gruff, Some Historical

Aspects of the Pardon in England, 7 Am . J. Lec. Hist. 51 (196 3).

24. See generally R. Dawson, The Government of Canada (196 3); J. Johnson, Continuity and C hange in Latin Amer ica (196 3) ; Latin America (N . Bailey ed. 1965).

25. See 19 Current Dig. Sov. Practice 31 (No v. 22, 196 7); Int’l Comm unist Jurists

Bull. 15—26 (De c. 196 4); 5 Inst. Study U.S.S.R. Bull. 40 (195 8) ; 1 Encyclopaedia Britannica Am nesty 808 (197 1).

26. See generally Government Section, Supr eme Comma nder Allied Powers, Political

Reorientation of Japan (194 6); K. Kawaii, Japa n’s American Interlude (196 0).

27. See generally 1 Encyclopaedia Britannica Am nesty 808 (197 1).

28. See Kahn, The Meddlers, New Yorker, Aug. 22, 1970, at 44—57.

29. Id. at 44.
444

to help “prisoners of conscience.” It called lawyers, political scientists, editors, labor leaders, philosophers, social workers, and like professionals to 

Utrecht for a colloquy on “The Boundaries of Freedom.” By 1962 it was publishing a monthly, Amnesty Action, and a slick-cover journal, Amnesty International. It then began its first three missions to Ghana, Czechoslovakia, and 

Portugal. Many missions and 15,000 members later, Amnesty International 

has branches in nearly all countries and has helped to free over 2,500 individual prisoners.30

III. Amnesty in the United States

United States history is replete with general “pardons” and “amnesties” 

for political offenses. After the Revolution, Congress restored their rights to 

those Loyalists who did not flee to Canada.31 On July 4, 1794, President Washington granted “pardons” to all who participated in the “Whiskey Rebellion.”32

On May 21, 1800, President Adams gave a general pardon to “the late wicked 

and treasonable insurrection against the just authority of the United States 

of sundry persons in the counties of Northampton, Montgomery, and Bucks, 

in the State of Pennsylvania” (th e so-called “House tax insurrection” of 

1798).33 In 1815, President Madison gave a general pardon for smuggling and 

similar offenses to the Barratoria Pirates of New Orleans.34

We may skip over the intervening years and come to the Civil War. This 

period was marked by extensive amnesties, even for treason, and by conflict 

concerning whether the power to amnesty was congressional or Presidential.35

Presidents Lincoln and Johnson were both much quicker to forgive insurgents 

than was Congress. In the Confiscation Law of 1862,30 Congress had given 

the President power to “pardon and amnesty” those participating in the rebellion. Lincoln acted twice, Johnson four times. The Presidents accordingly 

labelled their actions as general pardons and amnesties. On December 8, 

1863, Lincoln offered to recognize the government of any state in which 10 

percent of the voters took the “oath of amnesty” included in the Proclamation. He referred both to his constitutional pardoning power and to Con30. Id.

31. Although reprisals against the Loyalists were severe immediately following the Revolution, many regained their estates by 1789, and confiscatory laws were subsequently 

repealed. 1 Encyclopaedia Britannica Loyalists (Tories), America 378 (1971). Other 

early examples include John Adams’ amnesty to offenders in Fries’ Rebellion of 1799, 

and that granted by James Madison to certain offenders in the War of 1812. 1 Messages and Papers of the Presidents, 1789—1897, at 303—04, 558—60 (J. Richardson 

comp. 1896) [hereinafter cited as J. Richardson].

32. J. Richardson, supra note 31, at 181.

33. Id. at 303—04. Some exceptions to the pardon existed. 20 Op. Att’y Gen. 343 (1892).

34. J. Richardson, supra note 31, at 558—60.

35. See U.S. Const, art. II, § 2.

36. Act of July 17, 1862, ch. 195 § 13, 12 Stat. 589, as amended, 12 Stat. $27 (1862).
445

gress’ delegation of the amnesty power, as the sources of his authority.” President Johnson, 3 years after the war’s end, finally proclaimed

unconditionally, and without reservation, to all and to every person 

who directly or indirectly participated in the late insurrection or 

rebellion, a full pardon and amnesty for the offence of treason against 

the United States .. .. * *

Congress also was active. As we have said,3’ in 1862 it gave the President 

the right to “pardon and amnesty” those participating in the rebellion. After 

the war, Congress amnestied citizens of parts of Louisiana, and Representatives therefrom were received in the House.40 Progressively broader amnesties 

were subsequently proposed in Congress;41 the most inclusive (all participants ) was defeated in 1873.43 However, in 1872, Congress did enact a general 

amnesty bill which excepted only certain high officials,43 at least on the 

theory that it had not delegated the total amnesty power to the President.44

The first truly universal amnesty, which included the few remaining Civil 

War pariahs, was passed by Congress in 1898, after the Spanish-American 

War.45

The Supreme Court did little4’ to resolve the question of power. In Ex 

parte Garland,*7 while nullifying test oaths for pardoned lawyers, the Court 

stated that the President could give a general pardon prior to conviction as

37. Proclamation No. 11, 13 Stat. 737 (Dec. 8, 186 3). Cf. J. Fick len , History of Reconstruction in Louisiana 151 (1 91 0).

38. Proclamation No. 15, 15 Stat. 711, 712 (Dec. 25, 186 8).

39. See note 36 supra.

40. J. Fick len , supra note 37, at 180.

41. See J. Dorris, Pardon and Amne sty under Lincoln and Johnson (195 3).

42. Id. at 380.

43. Id. at 375—79. During this period there were, however, amnesty bills enacted for the 

benefit of individuals, Act of June 19, 1868, ch. 62, 15 Stat. 360 (R. R. Butler of 

Ten nessee) ; and persons in designated sections, Act of June 19, 1868, ch. 83, 15 Stat. 

361 (about 1350 peop le) .

44. See J. Dorris, supra note 41, at 358—61. The Wade-Davis bill, containing the radical 

republican plan for reconstruction and including clemency provisions, was passed by 

Congress but vetoed by President Lincoln, Proclamation No. 18, 13 Stat. 744—45 (Ju ly 

8, 1864) . See Russ, supra note 5, at 127, 129—30 (interesting account of battle over 

amnesty between President and Con gress).

45. Act of June 6, 1898, ch. 389, 30 Stat. 432. President Johnson declared a universal 

amnesty for all those yet unpardoned on Christmas Day, 1868. See note 38 supra. J. 

Dorris, supra note 41, at 310—11. But congressional action did not include the highest 

officials, such as Jefferson Davis, until 1898. Id. at 387—391. One author indicates 

that Congress was concerned with relief from political disabilities, while the Presidential action effected “pardon” from crime. P. Buck, The Road to Reunion 1865— 

1900, at 121—27 (193 7). See generally K. Sta mp p, The E ra of Reconstruction

1865—1877 (1 96 5). The following Presidential proclamations are also of interest: 

Proclamation No. 11, 13 Stat. 737 (Dec. 8, 1863); Proclamation No. 14, 13 Stat. 741 

(Ma r. 26, 1864); Proclamation No. 37, 13 Stat. 737 (May 29, 18 65); Proclamation 

No. 6, 15 Stat. 702 (Ju ly 4, 18 68); and Proclomation No. 15, 15 Stat. 711 (Dec. 25, 

186 8).

46. See pages 524—25 infra.

47. 71 U.S. (4 W all.) 333 (1 86 7).
446

well as after conviction, and blot out guilt as well as relieve from punishment.4

’ 

But in fact the Presidential proclamation was under the amnesty power delegated by Congress in 1862,4* as well as under this pardoning power. The issue 

could not be squarely faced while the 1862 delegation was in effect; Congress 

repealed it on January 7, 1867.50 The earlier cases avoided the issues, and 

those after 1867 perhaps viewed the thirteenth, fourteenth, and fifteenth 

amendments, and the almost universal congressional amnesty of 1872, as 

retroactively eliminating the issue for the Civil War period.”

After the Civil War both the practice and the confusion between pardon 

and amnesty continued. By an Act of March 22, 1882, Congress provided: 

That the President is hereby authorized to grant amnesty to such 

classes of offenders guilty of bigamy, polygamy, or unlawful cohabitation before the passage of this act, on such conditions and under 

such limitations as he shall think proper . . . ”

48. This pow er of the Preside nt is not subject to legislative control. Congress 

can neither limit the effect of his pardon, nor exclude from its exercise any 

class of offenders. The ben ign prerogative of mercy reposed in him cannot 

be fettered by any legislative restrictions.

Such being the case, the inquiry arises as to the effect and operation of 

a pard on, and on this point all the authorities concur. A pardon reaches both 

the pun ishment prescribed for the offence and the guilt of the offender; 

and when the pardon is full, it releases the pun ishment and blots out of 

existence the guilt, so that in the eye of the law the offender is as innocent 

as if he ha d never committed the offence. If gra nted before conviction, it 

prev ents any of the penaltie s and disabilities consequent upon conviction 

from attaching; if gra nted after conviction, it removes the penaltie s and disabilities, and restores him to all his civil rights; it makes him, as it were, a 

new man, and gives him a new credit and capacity.

Id. at 38 0-81 .

49. See note 37 supra.

50. Act of Ja n. 21, 1867, ch. 8, 14 Stat. 377.

51. Th e cases and opinions of this period fall into these categories: (A ) Lower court 

cases hold ing tha t early Presidential pard ons applied not only to those in custody 

for treason bu t also to enemies in the field. E.g., United States v. Hughes, 26 F. Cas. 

420 (No . 15,418) (D.C.S.D. Ohio 1864). The issue never reac hed the Supreme Cou rt 

and the rule was changed by Proclamtion No. 14, 13 Stat. 741 (Mar. 26, 1864). (B ) 

Decisions hold ing tha t pardon or amnesty did not app ly to thing s, such as vessels. 

E.g., The Cray Jacket, 72 U.S. (5 Wa ll.) 342, 36 7- 68 (186 6); 10 Op . Att y Gen. 

452 (196 3); 11 Op. Att ’y Gen. 445 (186 6). (C ) Decisions grantin g to loyal persons 

the right to recover property seized, or the cash proceeds thereof. Uni ted States v. 

Klein, 80 U.S. (13 Wa ll.) 128 (1 87 1); United States v. Padelford, 76 U.S. (9 Wa ll.) 

531 (1 86 9); Hamilton v. United States, 7 Ct. Cl. 444 (187 1). (D ) Cases in which 

recovery of confiscated property was denied beca use of lapses in coverage or express 

exceptions in pardons, amnesties, or statutes. Semmes v. Uni ted States, 91 U.S. 21 

(187 5) ; The Confiscation Cases, 87 U.S. (20 Wall.) ,92 (187 3). (E ) Claims concerning forfeited realty and dealing with the vesting or nonvesting of property, rights 

in oth er parties. E.g., Jenkins v. Collard, 145 U.S. 546 (189 3); Illinois Cent. rlf.R. v. 

Bosworth, 133 U.S. 92 (1890) (go od review of cases); Wallach v. Van Riswick, 

92 U.S. 202 (1 87 5) . (F ) Cases hold ing that proof of loyalty is not prerequisite to 

recovery by amnestied perso ns in the Court of Claims. Pargoud v. United States, 

80 U.S. (13 Wall.) 156 (1 87 1); Armstrong v. United SMt£s, 80 U.S'. (1 3 Wa ll.) 

154 (187 1). Many of these cases discuss the question wh eth er amnesty power lies in 

the Presiden t or in Congress. Although often in dicta only, the cases suggest tha t the 

Co urt was not sheltered from the issue—lang uage concern ing the Presidential power 

often seems almost gratuito usly bold in his favor. See pages 527—30 infra.

52. Act of Mar. 22, 1882, ch. 47, § 6, 22 Stat. 30.
447

Such amnesties were thereafter proclaimed by the President.” The universal 

amnesty following the Spanish-American War was congressional.” President 

Wilson in effect pardoned a list of espionage agents after World War I.” 

President Coolidge remitted citizenship and civil rights to men who deserted 

the armed forces between the end of actual World War I combat and the 

formal termination of the war.” In 1933, Franklin D. Roosevelt granted a 

Christmas “full pardon” to all violators of the World War I draft laws and 

the 1917 espionage law.”

Following the Draft Act of 1940,” we come to some of our most confusing history. Before Christmas 1945, President Truman granted a full 

pardon for all nonmilitary federal crimes to every honorably discharged 

World War II veteran.” He stated at that time that he was considering a 

general “amnesty,” and almost immediately a Committee for Amnesty was 

formed, comprised of such well known persons as A. J. Muste, Dorothy Canfield Fisher, Henry Luce, Pearl Buck, Thomas Mann, Thornton Wilder, Harry 

Emerson Fosdick, Thurgood Marshall, and Frank Graham. In late 1946, 

President Truman appointed a “President’s Amnesty Board,”’0 headed by 

Supreme Court Justice Roberts. A Gallup poll of January 28, 1947, showed 

69 percent favoring amnesty and 23 percent opposed.** Over 100 organizations 

representing most church, union, civil rights, and humanitarian groups, urged 

amnesty. The major newspapers editorialized for amnesty.” Peculiarly, the 

President’s Amnesty Board in effect resolved itself into a parole board. It 

considered the Selective Service violators on a case by case basis, ultimately 

recommending pardons in 1523 cases of obvious injustice (out of 15 to 20 

thousand persons actually convicted). These individuals were then pardoned

53. Congress authorized the President to give "amnesty,” id.; President Arthur exercised 

this power case by case, and the courts viewed his action as "pardon,” which carried 

with it the full congressional "amnesty.” See United States v. Bassett, 5 Utah 131, 

131-34, 13 P. 237, 238-3 9 (1887), rev’d on other grounds, 137 U.S. 496 (1890). 

Presidents Harrison and Cleveland later acted to proclaim “amnesty” for the Mormons. 

Proclamation No. 42, 27 Stat. 1058 (Jan. 4, 1893); Proclamation No. 14, 28 Stat. 1257 

(Sept. 25, 1894).

54. See page 521 supra.

55. Wilson commuted the sentences of some 50 people, including Eugene V. Debs, who 

had been convicted under the 1917 Espionage Act. For most the result was a 

reduction in sentence, only one individual gaining a full reprieve of punishment. N.Y. 

Times, May 9, 1919, a t 6, col. 4; id., Dec. 31, 1921, at 4, col. 1. An interesting collection of materials on amnesty in World War I may be found in the New York City 

Public Library.

56. Proclamation, 43 Stat. 1940-(Mar. 5, 1924).

57. Proclamation, 48 Stat. 1725 (Dec. 23, 1933).

58. Act of Sept. 16, 1940, ch. 720, 54 Stat. 885.

59. Proclamation No. 2676, 3 C.F.R. 72 (Dec. 24, 1945).

60. Exec. Order No. 9814, 3 C.F.R. 594 (Dec. 23, 1946).

61. Poll on file with Committee for Amnesty, 5 Beekman Place, New York, N.Y.

62. Washington Post, Dec. 25, 1947; N.Y. Herald Tribune, Dec. 25, 1947.
448

by the President in December 1947.M After that the Board ceased to function."4

During the Korean War, in an action similar to President Coolidge’s,” President Truman proclaimed pardons for all federal crimes to honorably discharged veterans who had 1 year of service after June 1950." He also remitted citizenship and civil rights to all persons convicted of military desertion from August 14, 1945, to June 25, 1950.” There was again an organized 

move for amnesty in 1953, but nothing came of this." No further amnesties 

nor general pardons have occurred since. So, literally, all the “political” prisoners not covered by the Roosevelt Proclamation of 1933;" all Selective 

Service violators of World War II, the Korean and Vietnam Wars, and the 

intervening periods; all persons convicted since 1933 of “political” crimes; 

and all persons who are subject to prosecution for any of these various 

types of crimes (unless covered by one of the pardons for honorably discharged veterans) are today unamnestied and effectively deprived of their 

rights as citizens. Moreover, the country is deprived of their potential leadership.

IV. Amnesty and Pardon Distinguished

As can be seen from the above review there has been considerable confusion between pardon and amnesty, particularly by laymen and by Presidents in their attempts to assert power. But it does not appear to this writer 

that there is or should be any legal confusion.

In Burdick v. United States,” the Supreme Court defined the concept of 

amnesty, in comparison to pardon, as follows:

The one [amnesty] overlooks offense; the other [pardon] remits 

punishment. The first is usually addressed to crimes against the 

sovereignty of the State, to political offenses, forgiveness being deemed more expedient for the public welfare than prosecution and 

punishment. The second condones infractions of the peace of the 

State. Amnesty is usually general, addressed to classes or even communities, a legislative act or under legislation, constitutional or statutory, the act of the supreme magistrate.”

63. Proclamation No. 2762, 3 C.F.R. 145 (Dec. 23, 1947).

64. In the Proclamation establishing the Board, supra note 57, it was provided that the 

Board would cease to function after it presented its recommendations to the Attorney 

General. It did so on December 23, 1947. Some action in quest of amnesty continued. 

See, e.g., N.Y. Times, Dec. 26, 1947, at 18, col. 3; id., Feb. 9, 1948, at 20, col. 3.

65. See page 523 and note 56 supra.

66. Proclamation No. 3000, 3 C.F.R. 175 (Dec. 24, 1952).

67. Proclamation No. 3001, 3 C.F.R. 175 (Dec. 24, 1952).

68. To the author’s knowledge, the following amnesty campaigns occurred: Committee for 

Amnesty, 1945—47; Central Committee for Conscientious Objectors, 1949; Central 

Committee for Conscientious Objectors and American Friends Service Committee, 

1953—54; War Resisters League and others, 1945, 1951, 1956; Amnesty International, 

1961.

69. See page 523 supra.

70. 236U .S. 79 (1915).

71. Id. at 95.
44 9

In United States v. Bassett,'1* a case involving congressional authorization 

for the President to grant amnesty for the practice of bigamy, the Court said: 

The word “Amnesty” is defined thus: “An act of oblivion of past 

offenses, granted by the government to those who have been guilty 

of any neglect or crime, usually upon condition that they return to 

their duty within a certain period.”

A pardon relieves an offender from the consequences of an offense 

of which he has been convicted, while amnesty obliterates an offense 

before conviction; and in such case, he stands before the law precisely as though he had committed no offense. And while the term 

“pardon” was used by the president, it had the effect of amnesty.”

The Encyclopedia of the Social Sciences distinguishes the juridical aspects 

and reports the President-Congress confusion:

Amnesty is usually held to be juridically different from pardon in 

that it involves no nullification of a penalty already judicially 

determin ed in particular cases, but is a general determination that 

whole classes of offenses and offenders will not be prosecuted. 

Normally amnesty is carried into effect by statute rathe r than by 

executive order, unless a devolution of the power upon the executive has been granted, under a survival of executive prerogative 

such as exists in England and Italy and, perhaps one may say, in 

the United States. Joseph-Barthelemy almost alone believes that 

amnesty, because it involves discretion, is an executive act and for 

that reason, under the French system, ought to be accorded by the 

parliament (no t as a legislative power but as representa tive of the 

nation) but on the exclusive initiation of the government. Others 

have held that it proceeds ultimately from the highest source of 

legislative authority, existing in the crown under constitutional monarchies, in the representative body under parliamentary republics. 

Owing to a refusal on the part of American courts to differentiate 

amnesty from pardon, the power is found both in president and in 

Congress under the constitutional allocation of powers in the United 

States.

For purposes of formal classification amnesties may be said to be: 

first, general or particular, that is, they may cover all classes of 

political offenders or may be limited to special groups, with specific 

exceptions; and second, absolute or conditional, that is, they may 

impose no conditions or they may de mand the performance of certain 

conditions before their provisions enter into legal effect.”

State v. BlalockTM is often taken as the classic statement in the state courts:

Pardon and amnesty are not precisely the same. A pardon is 

granted to one who is certainly guilty, sometimes before, but usually 

after conviction. And the court takes no notice of it, unless pleaded, 

or claimed by the person pardoned; and it is usually granted by 

the crown or by the executive. But amnesty is to those who may be 

guilty, and is usually granted by Parliament, or the Legislature;

72. 5 Utah 131, 13 P. 237 (188 7), rev’d on other grounds, 137 U.S. 496 (189 0).

73. Id. at 133, 13 P. at 239 (citations omitted).

74. W. Elliott, Amnesty in 2 Encyclopaedia of the Social Science s 36—37 (E . Selig ­

man & A. Johnson eds. 1930) (citations omitted ).

75. 61 N.C. 199 (186 7) .
450

and to whole classes, before trial. Amnesty is the abolition or oblivion 

of the offense; pardon is its forgiveness."

Federal cases generally recognize the following principle features of 

amnesty: (a) oblivion, (b ) for past offenses, (c) usually in favor of classes 

of persons, (d ) who may not already have been convicted, (e ) for generally 

political act (s) against the sovereign, (f) as a matter of legislative grace.” 

The federal and state pardon cases are also helpful in clarifying the definitional problem. Pardon is considered a “remission of the punishment,”7

’ which 

erases any imposition of punishment but does not negate the offense itself,7’ 

although a few cases say it is a remission of “guilt.”" Since pardon exempts 

a person from the punishment, it properly proceeds from the one required to 

enforce penalties—the executive.’1 Pardon is individual, and it must be accepted by the beneficiary as he would a deed or grant.” Acceptance of a 

pardon admits guilt, in exchange for the remission of penalties.” Sometimes 

the courts try to distinguish between a pardon and a “full pardon.” The latter

76. Id. at 202—03. See also State ex rel. Anheuser-Busch Brewing Ass’n v. Eby, 170 Mo. 

497, 524, 71 S.W. 52, 61 (190 2); In re Briggs, 135 N.C. 118, 14 5-46 , 47 S.E. 403, 

411 (1904) ( conc urring op ini on).

77. E.g., Brown v. Walker, 161 U.S. 591, 601—02 (1 89 6) . Useful comparisons are United 

States v. Hugh es, 175 F. 238, 242 (D. C.W .D. Penn. 189 2), a ff d for w ant of prosecution,

154 U.S. 505 (189 3) (num ber of persons affe cted differen tiate s pardo n and amnesty); 

United States v. Wilson, 32 U.S. (7 Pet.) 150 (1833) (p ardo n).

78. State v. Brinkley, 354 Mo. 1051, 1073 -74, 193 S.W.2d 49, 58 (1 94 6); Moore v. State, 

43 N. J.L . 203, 241 (188 1).

79. Uni ted States v. Swift, 186 F. 1002, 1017 (1 91 1); In re Spenser, 22 F. Cas. 921, 922 

(No. 13,234) (C.C.D . Ore. 187 8); Hughes v. State Bd. of Health, 348 Mo. 1236, 

1241, 159 S.W.2d 277, 279 (194 2); People ex rel. Prisament v. Brophy, 287 N.Y. 

132, 138—40, 38 N.E .2d 468, 471—72 (194 1). Some say a par don cannot be granted 

until afte r sentencing. E.g., State ex rel. Gordon v. Zangerle, 136 Ohio St. 371, 375, 

26 N.E .2d 190, 194 (194 0). But see note 47 supra, and note 84, infra.

80. E.g., Ex parte Garland, 71 U.S. (4 Wa ll.) 333, 380 (1 86 6); United States ex rel.

Palerm o v. Smith, 17 F.2 d 534, 535 ( 2d Cir. 1927); United States ex rel. Forino v. 

Garfinkel, 69 F. Supp. 846, 848 (W .D. Pa. 1947), rev’d on other grounds, 166 F.2d 

887 (3 d Cir. 1948); State ex rel. Collins v. Lewis, 111 La. 693, 695, 35 So. 816, 817 

(190 4). See note 47 supra, and note 81 infra.

81. Uni ted States v. Wilson, 32 U.S. (7 Pet.) 150, 160—61 (183 3); George v. Lillard, 

106 Ky. 820, 823, 51 S.W. 793, 794 (189 9); Rich v. Chamberlain, 104 Mich. 436, 

44 0- 41 , 62 N.W. 584, 585 (189 5); State v. Stern, 210 Minn. 107, 110, 297 N.W. 

321, 323 (194 1); State ex rel. Stewart v. Blair, 356 Mo. 790, 79 4- 95 , 203 S.W.2d 

716, 718 (1 94 7); State v. Jacobson, 348 Mo. 258, 26 0- 61 , 152 S.W.2d 1061, 1063 

(194 1); Ex parte Campion, 79 Neb. 364, 37 0- 73 , 112 N.W. 585, 588 (190 7); 

People ex rel. Prisament v. Brophy, 287 N.Y. 132, 135—37, 38 N.E .2d 468, 470—71 

(194 1); Roberts v. State, 30 App. Div. 106, 51 N.Y.S. 691, 692 (189 8), aff’d, 160 

N.Y. 217, 54 N.E. 678 (1 89 9); People ex rel. Benton v. Court of Sess., 8 N.Y. Crim. 

355, 35 9- 61 , 19 N.Y.S. 508, 510 (Sup. Ct. Monroe County, 189 2); State v. Peters, 

43 Ohio St. 629, 650, 4 N.E. 81, 87 (18 85) ; Ex parte Ridley, 3 Okla. Crim. 350, 3 54- 

56, 106 P. 549, 551 (1 91 0); Ex parte Miers, 124 Tex. Crim. 592, 59 4- 96 , 64 S.W.2d 

778, 780 (193 3); Ex parte Rice, 72 Tex. Crim. 587, 59 3- 95 , 162 S.W. 891, 899 

(191 3).

82. Burdick v. Uni ted States, 236 U.S. 79, 91 (1 91 5) ; United States v. Wilson, 32 U.S. 

(7 P et.) 150, 16 0-61 (1 88 3) .

83. State v. Jacob son, 348 Mo. 258, 261, 152 S.W.2d 1061, 1963 (1 94 1); Jones v. State, 141 

Tex. Crim. 70, 73- 74 , 147 S.W.2d 508, 510 (C t. Crim. App. 194 1); State v. Cullen, 

14 Wash . 2d 105, 109, 127 P.2d 257, 259 (1 94 2) .
451

is said to equal an amnesty and blot out the offense as well as the punishment,*4

 but such statements are often dicta. Confusingly, in cases of this type, 

and on occasion, in others, the courts may say that pardon both wipes out 

the conviction and restores civil rights.*5

V. Authority To Grant Amnesty and Pardons in the

United States

It can be fairly readily ascertained that the power to pardon is only in the 

President. The United States Constitution provides: “The President . . . 

shall have Power to grant Reprives and Pardons for Offenses against the 

United States, except in Cases of Impeachment.”” Early English history, 

from which we derive our theories of government, and the general history 

of pardon," confirm that pardon is an executive function. The Supreme Court 

has recognized that “[t]his [pardoning] power of the President is not subject to 

legislative control. Congress can neither limit the effect of his pardon, nor 

exclude from its exercise any class of offenders.”” This is so even though 

there were, in effect, legislative pardons prior to our Constitution,” and some 

states have continued to use them.”

One constitutional question still remains open. As shown in the section 

above,*1

 the generally accepted theory of pardon is that it assumes that guilt 

has been proved and punishment imposed; pardon may be granted only 

after a conviction. It can be argued on behalf of the President, on the other 

hand, that the Constitution uses the word “offenses,” not “crimes,” and 

“offenses” can refer as well to preconviction cases. There is some support 

for such a distinction between offenses and crimes in the cases defining 

these terms,” but it is weak and many cases fail to mention any such dis84. See, e.g., Uni ted States v. Athens Armory, 24 F. Cas. 878, 884 (No. 14,473) (N .D 

Ga. 186 6); Randall v. State, 73 Ca. App. 354, 376, 36 S.E.2d 450, 463 (194 5), cert,

den ied, 329 U.S. 749 (1 94 6); Ex parte Jones, 25 Okla. Crim. 347, 350, 220 P. 978 

979 ( 92 3); Wa rren v. State, 127 Tex. Crim. 71, 74, 74 S.W.2d 1006, 1008 (1934).

85. Knote v. United States, 95 U.S. 149, 153 (1 87 7); Taran v. United States, 266 F.2d 

561, 566 (8th Cir. 195 9); Groseclose v. Plummer, 106 F.2 d 311, 313 (9th Cir. 193 9); 

Vem eco, Inc. v. Fidelity & Cas. Co., 253 La. 721, 724, 219 So.2d 508, 511 (196 9); State 

ex rel. Herman v. Powell, 139 Mont. 583, 588—89, 367 P.2d 553, 556 (1 96 1); Commonwealth ex rel. Banks v. Cain , 345 Pa. 581, 584—86, 28 A.2d 897, 899—900 (194 2).

86. U.S. Const, art. II, § 2.

87. See history, page 519 and pages 520—24 supra.

88. Ex parte Garland, 71 U.S. (4 Wall.) 333, 380 (1 86 6) .

89. E.g., prerevolution writs of amnesty issued by the Maryland legislature. J. McSherry, 

H istory of Maryland 62—63 (190 4) (pard on agreem ent be tw een Puritans and 

Catholics, Mar. 22, 1658).

90. See, e.g., State v. Nichols, 26 Ark. 74 (187 0) ; State ex rel. Witter v. Fork ner, 94 

Iowa 1, 62 N.W. 772 (189 5); State v. Bowman, 145 N.C. 452, 59 S.E /7 4 (1 90 7) .

91. See pa ges 524—26 supra.

92. See Ex parte Grossman, 267 U.S. 87, 120 (1 92 5); In re Opinion of Justices, 301 

Mass. 615, 17 N.E .2d 906 (193 8) ; State v. Brantley, 1 Ohio St. 2d 139, 205 N.E.2d 

391 (1 96 5) . See also, United States v. Witherspoo n, 110 F. Supp. 364 (E .D . Ten n.
452

tinction.” The Supreme Court has expressly refused to consider this pre- versus 

postconviction question concerning the Presidential pardoning power,*4 and 

the issue remains to be resolved.

We have pointed out some attempts in the cases to define a “full and 

complete” or “general” pardon as nearly the equivalent of amnesty,*5 but this 

writer can find neither authoritative nor modern Supreme Court acceptance 

of such a view.

It is submitted that the power of amnesty belongs only to the United 

States Congress.” The Encyclopedia of the Social Sciences shows this to be 

a view accepted by scholars.” The only law review article to date which 

faces the question, takes as its thesis that Congress alone has the amnestying 

power.”

The original Constitution did not expressly place the amnesty power. It is 

the general rule that in such situations it rests where it would under the then 

British system,” or in the people under the ninth and tenth amendments to 

the Constitution.100 If anyone can exercise it on their behalf, it is their representatives in Congress. The one place in the Constitution where the matter 

is noio mentioned is in the fourteenth amendment (adopted after the PresidentCongress conflict of the Civil W ar), which clearly recognizes that the power 

to amnesty lies with the Congress.101 The early Presidential actions were

1953), modified, 211 F.2d 858 (6th Cir. 1954); W.J. Dillner Transfer Co. v. International Bhd. of Teamsters, 94 F. Supp. 491 (W.D. Pa. 1950); People v. Phillips, 

284 N.Y. 235, 30 N.E.2d 488 (1940).

93. E.g., Pendergast v. United States, 317 U.S. 412 (1943); United States v. Bozza, 365

F.2d 206 ( 2d Cir. 1966); State v. Slowe, 230 Wis. 406, 284 N.W. 4 (1939).

94. Burdick v. United States, 236 U.S. 79, 93 (1915).

95. See note 84 supra.

96. See the historical section, pages 517—24 supra, for a discussion of the many examples 

of legislative amnesty.

97. See page 525 supra.

98. Russ, supra note 5, at 127.

99. See Ex parte Wells, 59 U.S. (18 How.) 307, 310—11 (195 5). Traditionally, amnesty 

was considered the King’s prerogative, although restrictions were placed on his arbitrary use of it. Id. at 310—12.

100. The text reads:

The enumeration in the Constitution of certain rights, shall not be construed 

to deny or disparage others retained by the people.

U.S. Const, amend. IX. Furthermore:

The powers not delegated to the United States by the Constitution, nor 

prohibited by it to the States, are reserved to the States respectively, or 

to the people.

Id. amend. X. The Supreme Court has said:

Although the power to grant reprieves and pardons may be vested in the 

President, this has never been held to take from the legislature the power 

to pass acts of general amnesty.

Brown v. Walker, 161 U.S. 591, 601 (1896).

101. The text reads:

No person shall be a Senator or Representative in Congress, or elector of 

President and Vice President, or hold any office, civil or military, under the 

United States, or under any State, who, having previously taken an oath, 

as a member of Congress, or as an officer of the United States, or as a
453

either pardons in fact, or were taken under express congressional delegation 

of the amnestying power.**1

Subsequent to the Civil War, as the historical review shows, Congress and 

the President have generally respected this division of power.*” Thus Congress 

authorized an amnesty to the Mormons for bigamy,’*4

 which was later proclaimed by the Executive.**’ When Presidents Wilson, Coolidge, and Roosevelt forgave offenses, they were properly acting under their pardoning power 

and used the word “pardon.”*” President Truman created an “Amnesty Board” 

in 1946 but in fact it recommended pardons to him and he granted pardons. 

The same is true of all Presidential actions regarding World War II and the 

Korean War.*”

It therefore seems clear that the President is empowered to grant pardons

for all past offenses for which an individual has been convicted, and perhaps 

for those for which he has not been convicted and on which the statute 

of limitations on prosecution has not run, while Congress has the farther 

reaching prerogative to grant amnesties for all political activity.

Many of our political offenders have been prosecuted or threatened with 

prosecution under state laws of trespass, unlawful assembly, and the like. 

Can the United States (President and Congress) pardon or amnesty these 

state offenders? It is submitted that to the extent that a state conviction 

punishes one for acts against the federal government (e.g., destruction of 

draft files), the President and Congress do have such power.*” They also 

may have it where the state conviction prevents exercise of federal rights, 

such as voting.*" It is even arguable that the only “sovereignty” in the United 

States is that of the United States, and the States are merely allowed to 

exercise certain aspects thereof, so that Congress and the President may 

exercise complete powers of amnesty and pardon over the effects of all state

member of any State legislature, or as an executive or judicial officer of 

any State, to support the Constitution of the United States, shall have 

engaged in insurrection or rebellion against the same, or given aid or comfort 

to the enemies thereof. But Congress may by a vote of two-thirds of each 

House, remove such disability.

U.S. Const, amend. XIV, § 3.

102. See pages 520—24 supra.

103. When a president questioned Congress’ action he did so because Congress limited 

his “prerogative of pardon.” President Johnson’s Farewell Address, Mar. 4, 1869, in 

The American Annual Cyclopedia 591 (186 9).

104. Act of Mar. 22, 1882, ch. 47, § 6, 22 Stat. 30.

105. Proclamation No. 42, 27 Stat. 1058 (Jan. 4, 1893); Proclamation No. 14, 28 Stat. 

1257 (Sept. 25, 1894).

106. See page 523 supra.

107. See pages 523—24 supra.

108. See Hamm v. City of Rock Hill, 379 U.S. 306, 314—17 (1964) (in passing the Civil 

Rights Act, Congress validly exercised power to abate prior state prosecutions in 

lunch-counter cases).

109. Id.
454

offenses, since it is federal law which removes federal rights upon a state 

conviction.* 11

’

VI. O ffe nse s fo r W h ic h Am nest y C an Be G ra nt ed

One way to approach this question is to say that it is “political” offenses 

for which amnesty can be granted and then inquire what “political” means. 

But this approach presents us with a dilemma because crimes are the unique 

province of the courts, yet the courts refuse to consider political issues.111

Hence using the term “political crimes” is like trying to mix oil and water. 

But the dilemma may be more apparent than real, for it may be the courts’ 

refusal to consider the political nature of an offense that requires the offender 

to seek amnesty from the legislative or executive branch.111

Or we may turn to general definitions of “political.” Here, the wide range 

of uses of the word—political issue, office, matter, party, organization, and 

the like—makes the definitions of little help. One does gather that anything 

is “political” which pertains to the policy of government or to any group 

of persons holding similar beliefs who strive to gain control of government 

or general adoption of their own programs. At the same time there is an 

attem pt to restrict the term to orderly processes and rule out revolution.111

A recent case11’ holds that citizen protest marches are “political” under the 

Hatch Act111 and Civil Service regulations.11

’

110. See In re Bocchiaro, 49 F. Supp. 37 (W.D.N.Y. 194 3); 10 Op. Att’y Gen. 452 (186 3); 11 Op. Att y Gen. 122 (186 4).

111. The rule has not been substantially altered by the Wechsler-B ickel deb ate. Compare Wechsler, Toward Neutral Principles of Constitutional Law , 73 Harv. L. Rev. 1 (195 9), with Bickel, Foreword: The Passive Virtues, 75 Harv. L. Rev. 40 (196 1). 

Nor has it been dislodged by the liberalizing cases of Brown v. Board of Educ 

347 U.S. 483 (195 4); Baker v. Carr, 369 U.S. 186 (196 2); Reynolds v. Sims, 377 

U.S. 533 (1 96 4); Powell v. McCormack, 395 U.S. 486 (1 96 9); and their progeny. 

Many law review articles so indicate . E.g., Scharpf, Judicial Review and the Political

Question: A Functional Analysis, 75 Yale L.J. 517 (1966).

112. Also of interest is the refusal of the Supreme Court to adjudicate the legality of the 

wa r in Vietnam, involved in many of the offenses we are considering. Massachusetts 

v. Laird, 400 U.S. 886 (197 0); Velvel v. Nixon, 396 U.S. 1042 (1 97 0); McArthur 

v. Clifford, 393 U.S. 1002 (1 96 8); Hart v. Uni ted States, 391 U.S. 956 (19 68)- 

Holmes v. United States, 391 U.S. 936 (1 96 8); Mora v. McNamara, 389 U.S 934 

(196 7); Miller v. Uni ted States, 389 U.S. 930 (196 7). Compare Velvel, The Wa r in Vietnam: Unconstitutional, Justiciable, and Jurisdictionally Attackable, 16 Kan. L. Rev. 449 (1 96 8) , with Note, Congress, the President, arid the Power to Com mit

Forces to Combat, 81 Harv. L. Rev. 1771 (1 96 8) . See alw Autenrieth v. Cullen 

418 F.2 d 586 ( 9th Cir. 1969), cert, denied, 397 U.S. 1036 (19 70) (refusal to 

allow religious scruples as a defense to pay ment of war tax es); F. Wormuth, The President Versus the Constitution (1968).

113. General definition s: Moser v. United States, 341 U.S. 41 (195 1) ; People v. Morgan 

90 111. 558 (1 87 8); In re Stillwell Political Club, 17 N.Y.2d 574, 215 N.E .2d 512’ 

109 N.Y.S.2d 331 (Su p. Ct. 1951). Excluding revolution: Pockm an v. Leonard , 39 

Cal. 2d 676, 249 P.2d 267 (195 2), appeal dismissed, 345 U.S. 962 (195 3); 

Lockheed Aircraft Corp. v. Superior Court, 28 Cal. 2d 481, 171 P.2d 21 (194 6).

114. Holden v. Finc h, 446 F.2d 1311 (D. C. Cir. 197 1).

115. 18 U.S.C. §§ 5 94 -9 5, 598, 60 0- 01 , 60 4-05 , 60 8- 09 , 61 1- 12 (197 0).

116. E g., 5 C.F.R. § 315 (1 97 1) , 18 U.S.C. § 595 (1 97 0) .
455

But these definitions become wholly inadequate when we look at the deportation and extradition statutes and cases, the only place the federal law seems 

to define “political crimes” explicitly. The Refugee Relief Act of 19531” and 

the Displaced Persons Act of 19481” permit stay of deportation and acquisition of immigrant status if return to the country of former residence would 

cause political persecution or fear of persecution. This turns out to be persecution on account of race, religion, or political beliefs or activity.11’ The 

extradition statutes, treaties, and cases are even more helpful. “Political 

offenses” are not cause for extradition, whether there has been a conviction 

or a mere charge, and this is so because the United States should not permit 

its legal process to be used by a foreign government for reprisals against 

its political opponents.1” To defeat extradition for murder or other violent 

crimes, it is necessary for the accused to prove that he was part of a revolutionary movement, or that the occurrence was part of a political uprising or 

opposition.1

’

1

 Giving orders to kill during a war (and presumably refusing 

orders to kill or participate in war acts) is a political crime,1” as is treason.1” 

There is some indication that such acts as going to another country or claiming foreign citizenship to avoid required military service are political.1”

But it is the historical examples of the use of amnesty that seem determinative. Amnesty has been used to erase treason, insurrection, attempted political 

overthrow, tax refusal, civil and racial strife, draft avoidance, army desertion, 

disloyalty, espionage, and even bigamy, polygamy, and murder,1” particularly when these arise from political-racial-religious claims of necessity.1”

117. 67 Stat. 400 (1953).

118. 62 Stat. 1009 (194 8), as amended, 64 Stat. 219 (195 0).

119. See 50 U.S.C. App. § 1971(d); 8 U.S.C. §§ 1101, 1253(h) (1970). Cheng Fu Sheng 

v. Barber, 269 F.2d 497 (9th Cir. 1959); Cheng Lee King v. Camahan, 253 F.2d 

893 (9th Cir. 1958); Application of Paktorovics, 156 F. Supp. 813 (S.D.N.Y. 1957), 

rev’d, 260 F.2d 610 (2d Cir. 1958); Ex parte Kurth, 28 F. Supp. 258 (S.D. Cal.), 

appeal dismissed, 106 F.2d 1003 ( 9th Cir. 1939). Court review of executive action 

is very narrow: Schieber v. United States Immig. & Nat. Serv., 427 F.2d 1019 (2d 

Cir. 1970); Hamad v. United States Immig. & Nat. Serv., 420 F.2d 645 (D.C. Cir. 

1969); Sovich v. Esperdy, 319 F.2d 21 (2d Cir. 1963); Blazina v. Bouchard, 286 

F.2d 507 (3d Cir.), cert, denied, 366 U.S. 950 (1961); MacKay v. McAlexander, 

268 F.2d 35 (9th Cir. 1959), cert, denied, 362 U.S. 961 (1960).

120. 18 U.S.C. § 3184 (1970); e.g., In re Extradition of Gonzalez, 217 F. Supp. 717 

(S.D.N.Y. 1963); Treaty with Venezuela on Extradition, Jan. 19, 21, 1922, 43 Stat. 

1698, T.S. No. 675; Treaty with Dominican Republic on Extradition, June 19, 1909, 

36 Stat. 2468, T.S. No. 550; Treaty with Switzerland on Extradition, May 14, 1900, 

31 Stat. 1928, T.S. No. 354; Treaty with Mexico on Extradition, Feb. 22, 1899, 31 

Stat. 1818, T.S. No. 242. There are nearly 100 other like treaties.

121. Jimenez v. Aristeguieta, 311 F.2d 547 (5th Cir. 1962), cert, denied, 373 U.S. 914 

(1963); In re Extradition of Gonzalez, 217 F. Supp. 717 (S.D.N.Y. 1963); Ramos 

v. Diaz, 179 F. Supp. 459 (S.D. Fla. 1959).

122. Karadzole v. Artukovic, 247 F.2d 198 (9th Cir. 1957), vacated, 355 U.S. 393 (1958).

123. Chandler v. United States. 171 F.2d 921 (1st Cir. 1948), cert, denied, 336 U.S. 918, 

rehearing denied, 336 U.S. 947 (194 9).

124. Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963); Moser v. United States, 341 

U.S. 41 (1951).

125. See pages 518—24 supra.

126. See notes 117—124 supra.
456

Every class of offense listed at the beginning of this article1" and claimed 

by the participants to be political seems to be within one of the above definitions and examples. And the participants—Angela Davis, Panthers Seale and 

Newton, the Berrigans, the San Francisco Stockade “mutineers,” the Catonsville 

Nine, Chicago Seven, Milwaukee Fourteen, New Jersey Eight, the AWOL’s 

and deserters, the draft evaders and avoiders, those arrested for trespass, 

riot, and other acts in Washington, D.C., mobilizations and sit-ins, even the 

Attica prison revolters—all claim to have engaged in law violations (if any) 

to press the government to get out of an erroneous or illegal war, change 

foreign policy, give up racial suppression, or end practices leading to disenfranchisement.

It may be desirable to ask the question in another way: What criteria 

might be used to determine which “crimes” are “ordinary” (not to be amnestied) and which are “political” (to be amnestied)? It is submitted that the 

following are the more important considerations:

1) Has the position for which the prisoner stood now become generally accepted in the community?1”

2) Has the government activity against which protest was made, been 

ended? 1”

3) Was the action taken originally as an expression of religion, 

conscience, or other first amendment right?1”

4) Were the conditions (prison, race, police activity) such obvious 

failings of government that the citizenry ought to be encouraged 

to speak out?1*

1

5) Does the policy of the government against which protest was 

made (e.g., the war) represent a relatively small political group

127. See page 515 supra.

128. For example, public support of official actions in Vietnam has markedly waned. In 

early March of 1966, a poll of the adult American population showed 61 percent 

favored bombing North Vietnamese industrial plants and factories. Overall, 50 percent approved President Johnson’s handling of the Vietnam situation, and 33 percent 

were opposed, according to the Gallup Political Index, Feb. 1966, No. 9, at 5—6. 

But in a poll taken between November 14 and 16, 1969, it appeared that 64 percent 

of the adult American population approved the way President Nixon was handling 

the Vietnam situation (Vietnamization and withdrawal of troops). Gallup Opinion 

Index, Dec. 1969, No. 54, at 2. On the campuses, the polls said that in January 

1970, 69 percent of the students polled were in favor of reducing our military effort 

in Vietnam, while 20 percent favored increased military action. Gallup Opinion Index, 

Jan. 1970, No. 55 at 19. See note 142 infra.

129. Typical are amnesties after a war for draft avoiders, AWOL’s, and like persons. See pages 520—24 supra.

130. See Freeman, A Remonstrance for Conscience, 106 U. Pa. L. Rev. 806 (1958). 

Prosecution tends to show a restrictive first amendment application under hysteria 

conditions.

131. This would cover demands for amnesty in prison uprisings, and racial issues of 

nearly every kind.
457

imposing its will upon the citizenry without a clear mandate, thus 

lacking democratic sanction and bound to elicit protest?1”

6) Was the original action nonviolent and therefore nearest to 

protection as free speech?1”

7) Was the crime one generally condemned by all society as against 

the peace and good order of the people, with few or no political 

overtones?1”

8) Was the so-called political position taken that of anarchy?1”

9) Even if the original crime for which a person is in jail was nonpolitical, has the matter of confinement turned into a political 

imprisonment or harassment?1”

10) Can society expect no serious threat if it releases the prisoners?1”

It seems quite possible to this writer to formulate proper criteria along 

these lines, and to set up a board if necessary to sort out borderline cases. 

The bugaboo argument of “would you release all criminals?” has little relevance.

VII. Conclusion

As was pointed out earlier, never in United States history has the 

problem seemed so large and important. We now have a huge number of 

unamnestied and unpardoned political offenders—many of whom may be 

our finest young people and potential leaders. The offenses are backed up 

all the way to World War I and II. Nowhere else in the world are political 

offenders treated as common criminals. Even in Greece and some of the 

most dictatorial countries, they are placed under house arrest or allowed to 

move to another country. In most noncommunist countries they are amnestied 

and allowed to try again for political power.1” We need immediately to erase

132. As a pa rt of this it would be pro per to consider what position Congress had itself 

expressed.

133. See the autho r’s various articles on Civil Diso bedienc e: Freeman, The Rig ht of Protest

and Civil Disobedience, 41 Ind. L.J. 228 (1 96 5); Freeman, Moral Preemption Part I:

The Case for the Diso bedient, 17 Hast. L.J. 425 (196 6); Freema n, Civil Disobedience,

La w and Democracy, 3 Law Trans. 13 (196 6); Freema n, Civil Diso bedience and

the Law , 21 Rut. L. Rev. 17 (196 6). See also Keeton, The Morality of Civil Disobed ience, 43 Texas L. Rev. 507 (1 96 5) .

134. Murder, robb ery, felonious assault, and like crimes are of this nature—even if the 

prisoner claims his repressed and societally pro duced bac kground is responsible. On 

the oth er han d, “normal” criminal statutes, such as trespass and disorderly conduct, 

can be used for criminal suppression.

135. It may be too much to ask the governm ent to free a person constantly trying to 

overthrow all government.

136. The re are those who feel tha t the Angela Davis, Soledad Brothers, Jackson, and Seale 

cases have becom e “politicized.” Tim e, Sept. 6, 1971, at 18.

137. This would certainly apply to most conscientious objector and Jeh ova h’s Witn ess 

cases.

138. Big Minh was amn estied in South Vietnam. In September, 1970, even Fra nco of 

Spain amn estied hundr eds of political prisoners.

31 -65 8 0 - 74 - 31
458

this blot on American democracy. Even more we need to rec ruit these critics 

of society back into the political process of changing society, as most everyone recognizes society needs changing. At Attica, Commissioner of Corrections Oswald adm itted tha t 28 of the 30 prisoner demands should be implemented.1” It may be small satisfaction to the Berrigans and other antiwar 

“criminals,” bu t there is now general political agre eme nt on the error of the 

Vietnam war. Rosa Park’s feet and the busted head of many a demonstrator 

may hu rt no less, but desegregation is becoming a reality. The natio n has a 

profound interest in allowing reform ists a radical means of shaking us from 

our lethargy. The more rapid the need for reform, the more radical must be 

the means of getting public attention and action.

Senator Edward Kennedy has introduced a bill as an alternative to further 

Selective Service extension which proposes an amnesty “study ” for Congress.140

Senator Taf t introduced an amnesty bill on December 14, 1971,141 and popular 

support for amnesty is strong.141 This is a start, bu t it is not enough. Congress 

and the President should app oint a Joint Committe e to study the whole 

problem of pardon and amnesty, and recom mend immediate action to wipe 

out all “political offenses” and return all these citizens to w here they are nee ded, in “One Nation . . . Indivisible, with Liberty and Justice for all.”143

139. Commissioner Oswald is reported to have acceded to all but two of the demands 

in the early stages of the insurgency. Time, Sept. 27, 1971, at 22.

140. S. 483, 92d Cong., 1st Sess. (1971 ).

141. S. 3011, 92d Cong., 1st Sess. (1971).

142. See, e.g., Newsweek, Jan. 17, 1972, at 19. A recent Gallup poll indicated in part 

that, when asked about amnesty conditioned on alternative service such as that 

presently required for conscientious objectors, 71 percent of those polled favored 

amnesty generally, while 22 percent were against it, and 7 percent had no opinion. 

Of the 71 percent in favor of amnesty, 63 percent favored the condition, while 7 

percent were for amnesty without qualification; 1 percent said they were proamnesty, 

but uncertain about required service. The poll also found that 49 percent favored 

amnesty for Army Lieutenant William Calley, convicted in the My Lai affair, 

while 24 percent were opposed. Id. at 20.

143. Pledge of Allegiance, 36 U.S.C. § 172 (1970).
459

Professor F reeman. The gen eral sta tem ent of the Fr iend s Com ­

mittee on National Leg islation e mph asizes the degree to which Qu ak ­

ers over its 300-year his tor y has been concerned wi th the reconc iliation of opp osing gro ups at the ter mina tio n of variou s wars.

T hat h ist ory I th in k is well known an d ou t o f th at g row s o ur unity 

with the concept th at a general and uncon dition al amnesty should be 

granted for reco nciliation of the variou s pol itic al pos itions th at have 

come out of this w ar : those in favo r and those th at a re opposed.

I would like to point out th at there is in Am eric a a lon g h istory of 

amnesty and pardon —and h ere we get into some difficulty with wo rding of wh at might be called gen eral pardon by the Pr esiden t and 

general amnesty by Con gress—g oin g back to immediately af te r the 

Re volution ary W ar and com ing up th roug h the pre sen t time. There 

are some 40 examples of those discussed am ong st oth er things in the 

article.

I th ink th at if one looks at the legal histo ry of am nesty, it goes back 

in most peo ple’s jud gm ent to the Greeks, who did use the wor d 

am nestia or f orge tting or amne sty, as compared to the use of the word 

“p ardo n.” A nd the H ebrews h ad a si mila r p attern w ith th e Sabbatical 

Ye ar and the Jubil ee Ye ar in which all pen alties were forgiv en. Th is 

comes up throug h the Rom an jur isp rud ence and to the A nglo- Am erican juris pru dence and the re we b egin t o get the sp lit that causes par t 

of ou r question, because Pa rli am en t in Eng land gr an ted wh at it called 

sometimes a general pardo n and sometimes it called i t an amn esty and 

the king also gran ted a pa rdo n actin g in his ri gh t as executive, where as 

when h e would pro mu lga te amn esty on b eh alf of P arlia men t, h e acted 

in the righ t of Parlia me nt.

W ha t h appened therea fter when we get to th is country carry ing o ut 

the Br itish tra ditio n, the pardo n goes to the Pr es id en t un de r the 

specific provisio n of th e Co nstitu tion and the amnesty pow er seems to 

go to Congres s under the ge ner al, necessary a nd p rope r clause a nd th e 

variou s clauses with rega rd to managing the arm y, the navy and so 

forth and even such matters as the c ontrol o f th e Dist ric t o f C olumbia 

and th e co ntro l o f bu ilding s, forts and arsenals.

I would po int out t hat in prec isely these areas a g reat deal h as been 

said pe rti ne nt to amn esty about the power of C ongress when it enacts 

laws to also free persons from th ei r pen alties. Fo r example, the Uni ­

form Code of Military Justice, witho ut which none of the people 

who ought to be am nestied because of dishonorable dischar ges or courtmartia ls w ould have been u p f or pun ishme nt at all.

In thes e cases it has been recognized specifically th at Cong ress has 

the righ t to impose a sta tute of limita tio ns an d it has done so im pos ing 

a 5-year period for enforcemen t of these pen alties a gains t individuals.

Am nesty is in essence a statute of l imitatio ns, an d say s th at f rom this 

time on. we no longer expect th at punishm ent for a pa rticul ar crim e 

or a p ar tic ul ar offense will occur.

If you wa nt me to. M r. C ha irm an, I can show you the cases a nd w hat 

has been said in reg ard to these lim ita tio ns b eing a p rope r way to end 

prosecutio ns and on the desir ability to get peop le back in un ity and 

an d reconciliation . You can find pa rt o f th is as to th e U nifo rm Code of 

Military Justice in the case of Galla ghe r v. Quinn* 363 F. 2d 301, 

certiorari denied 385 U.S . 881 in the U.S . Supre me Co urt in 1966 

where the y said Congress h as the pow er to make rules and reg ula tio ns
460

fo r the lan d and nav al forces and th at it is prop er th at the code 

sho uld in clud e limitation s impo sed by Congress. An d you have at least 

two opinions of the At torney Gen eral to the same effect going back 

to the early 1800’s (1 op. At t. Gen. 383, 6 op. Att. Gen. 239).

You have a sim ila r position of the U.S. Supre me C ou rt wi th reg ard 

to Selective Service. In Toassie v. Un ited S tates , 397 U .S. 112 (1970), 

where Congress prescribed an obligation to reg ist er for all persons 

between 18 and 26, it was arg ued by the Ju sti ce D ep artm ent th at th at 

was a continuing o bligation and th at , the refore , the sta tute of lim ita ­

tions th at Congress imposed should end 5 years af te r age 26. “No” 

said th e Court. It was one obligation to reg ist er at age 18 or within 

5 day s th erea fter and Congress had the com plete choice as to when 

it made its s tatute o f lim ita tio ns run. And they interpreted it as ru nning from 5 days af te r the age o f 18, g iving Congress th e total power 

to make th at kind of an exception or a forgiving or a forgettin g or 

an endin g or a termi natio n by the sta tute of lim itations.

Mr. Rauh read from Bu rdick again st the Un ite d Sta tes , rea din g 

actua lly from the quotation in the art icle t hat I have alr eady refe rre d 

to and th at was a custo ms frau d case and the preside nt there gave a 

pardon if a person would tes tify. Th en the co urt made it cle ar th at 

where the witn ess refused to take th e pa rdo n, it was different from 

an am nesty ; th at a pardo n is in the natur e of a personal gr an t and 

there fore has to be accepted and the ind ivi dual has a perfe ct righ t to 

refuse the pardo n if he wants to. Bu t on the other hand, th at amnesty 

is in the na ture o f a general sta tute and app lies wh eth er he w’ants it 

or not. An d th at distinction we h ave to , in my jud gm ent, keep before 

us at all time. As I un derst and it, the spokesm an for the Ju sti ce D epa rtm en t on Fr id ay referre d pa rti cu larly to two cases, the Garland

case in 4 Wallace 333, an early S uprem e Co urt case a nd also Br ow n v. 

Walker^ an 1896 case.

Now the Garland case states very cle arly, in a pa ra gr ap h th at he 

ap pa rently d id not w ant to re fer to, th at Congress can no t ba r a person 

fro m the practic e of law by vir tue o f his pa rti ci pa ting in rebellion i f 

th e Pr esiden t has g iven h im a p ard on because to do so would be a bill 

of attainde r, bu t the c ourt very clearly and very c are fully refer red to 

the En glish his tory and the d istinc tio n between a pardo n and a c ongressiona l or pa rli am en tar ian amnesty. Th is is done also in a num ber 

of ot he r cases.

In Br ow n again st Walk er case, Congress gran ted immu nity from

I

jros ecution if a person would tes tify. Th e court there saw the othe r 

lalf of t he coin and sa id th at i t is perf ectly p rope r fo r Congress to do 

this. Th ere a re a num ber of law review’ a nd U .S. Sup rem e Co urt cases 

follow ing th eir decision.

In the Un ited States again st IP?7s<m case, 32 U.S . 150, Preside nt

Jackson gave a pardon as to certain offenses and not as to o thers. The 

Co urt held th at th e executive pardo n mu st be pleade d and must be 

show n to ha ve been accepted. An d they specifically said in disting uis hing pardo n by parli am en t—an d th ey used the term “p ardo n” bu t in my 

judg men t the correct ter m is “am nes ty”—a nd in disti ng uis hin g pard on 

by pa rli am en t c ompared to pardo n by the ex ecutive th ey sta te d: “Th e 

reason why a court mu st ex officio, tak e notice of a pa rdon b y an act 

of pa rli am en t is that it is co nsid ered as a pub lic law h av ing the same 

effect on the case as if th e general law pu nishing the offense had been
461

repealed or annulled,” whereas the matter of pardon, Mr. Chairman, 

went to the punishment,

Well, I could go on and on citing to you any number of cases of this 

variety. I know of no single case that has ever raised the question of 

congressional power to grant amnesty.

The history through our jurisprudence is entirely to the effect that 

it has the power.

I have suggested among other things that there are a large number 

of persons here th at we are considering—and I don’t want to play the 

numbers game, whether it is 30,000 or 35,000 abroad or whether there 

are 500,000 or 400,000 less-than-honorable discharges—there are a 

very large number who may be considered to have just prematurely 

been right about the Vietnam war and they were punished by virtue 

of the laws, many of which were later interpreted in ways that would 

not have required their punishment.

And I remind you t hat up until 1965 under the Selective Service 

interpretation you had to believe in a divine being before you could be 

a conscientious objector and that even after tha t time, most boards 

were still making a requirement of that in spite of the Supreme Court 

decision to the contrary.

Another group felt th at Congress had been defrauded into adopting 

the Tonkin Gulf resolution and believed that the war was illegal and 

unconstitutional and that somebody ought to raise tha t question, a 

position later taken by Congress.

There was still another group tha t felt that the services were 

extremely racist and that action had to be taken with regard to this and 

they obtained less-than-honorable discharges or other punishment as 

a result. There were those who believed in the Nuremberg principle 

and asserted that principle.

And we could go through a number of others, but I would like to 

speak to one and I ’m sure Father D rinan is concerned about th is also 

and th at is the Catholic Church has always taken a position that there 

are just and unjust wars and, therefore, it is a selective moral question. 

And I happen to represent the Berrigan brothers in the Catonsville 9

case. Here were men who took this religious position and paid a 

penalty for a view that Congress had not p ut into the selective service 

law. But tha t ought not to prevent Congress from viewing it now 

sometime late r as saying tha t was a moral and responsible and legitimate position and they should be freed by amnesty.

Those are just a few, I think, of the moral issues that are here involved. A number of years ago I wrote an article on a Remonstrance 

for Conscience that suggests that our whole legal system depends upon 

the development of the individual conscience because without the public conscience believing in nonviolence and the support of law, we 

would be unable to have a legal system in the country. And I think 

tha t nothing can be of greater priority than for the Congress of the 

United States to see the moral position here and cause the conflict 

between sides in regard to this war to be erased from our history.

I would like to make one last comment. That if the Justice D epartment were taken at full face value to suggest that the President and 

only the President has ultimate amnesty power, we would be in the 

strange position where if Congress adopted a law against certain 

crimes and the President vetoed it and Congress overrode the veto, the
462

Pr esiden t would the n pu t in a gen eral amn esty and com pletely overthrow the whole legisla tive process. Th at sim ply c ann ot be the law of 

ou r Constitution.

Th an k you.

Mr. Kastenmeier. T ha nk you, professor. As a matter of fact, as I 

have suggested, I think the interpretation th at Mr. U llm an was definitive in his conclusions is somewhat mistake n. Ac tua lly, in his statement he recites on page 5 the dictum in the W alke r case as going so 

fa r as to sug gest th at although the Co nstituti on vests the pa rdo nin g 

pow er in the Presiden t, th is power has nev er been held to tak e from 

Congres s the pow’er to pass acts of general amnesty.

Pr ofessor F reeman. That is th e po sitio n I wou ld take.

Mr. Kastenmeier. Yes, I think tha t shou ld be clear.

Professor F reeman. I don’t mean to misquote him.

An d again I wish to than k the comm ittee fo r the op po rtu nity to 

ap pe ar her e to day.

Mr. K astenmeier. T only made the observation m erely for the p urpose o f p ut tin g the re ma rks of the Deputy Assi sta nt At torney General 

in pr op er con text.

I am won dering, does Mr. Ku lberg wa nt to make h is sta tem ent?

Mr. Kulberg. Altho ugh I certa inl y su pp ort ev ery thi ng th at Pro ­

fessor Freem an has sta ted , I am spe aki ng f or a sep ara te organiz ation 

know n as the Fr iend s M eeti ng of Wa shington .

I apologiz e fo r havin g been late i n prov idi ng my testimo ny. It was 

a case of a one-man activ ity and, the refore , I was d elayed in ge tting 

it to you r counsel.

There is a dictum t hat a lawyer should no t be his own c lient. I sup ­

pose a man s hould not be his own se cretary also.

I also apologize fo r the ty pi ng which I have h ere in my statem ent.

In my p rep are d statem ent, wh ich I h ope will be placed in the record, 

I first po int o ut how our cong reg ation, the F rie nd s Meeting o f W ashing ton , has su pp orted w ar resistance d ur ing the tim e t hat the conflicts 

were taki ng place in Ind ochina and subsequently the actions t hat we 

hav e take n over th e l ast several months in su pp ort of th e w hole m atter 

of amnesty fo r w ar resisters.

I suggest then th at there are f ou r p rincip les to which amnesty legislat ion should be dire cted, four crite ria again st which it sho uld be 

checked.

Th e first of these is th at the a mne sty should be as in clusive a nd wid espr ead as possible. We ask th at i t be app lied to all cases ari sin g from 

war resista nce regard less of the sta tutes or reg ula tio ns held to be 

violate d.

Second, th at th e amn esty should be gran ted as one or more class 

actions, n ot th roug h a case by case process. How ever, the re sho uld be a 

review ing au thority to settle dispute d cases before they go to th e courts 

and t he bu rde n of action and proo f should be o n the prosec ution.

Thi rd , the amn esty sho uld dc unc onditional. No sanctio ns, altern ative service, pro of of ch arac ter or oth er suggestion s th at hav e been 

mad e should be required of those who were being amnestied.

La stly, th at the am nes ties should be com plete and th at it should 

eliminat e all legal imped ime nts an d restore all righ ts ac cru ing to th ose 

who were amnestied.
463

I then applied these particula r points to the legislation tha t this 

committee has before it. We of course reject the two resolutions that 

have been proposed opposing amnesty and point out that in the matter 

of inclusiveness, H.R. 236 does eliminate overall Federal laws and regulations, although there may be additional ones.

And I wonder if perhaps there should be in any legislation tha t is 

passed a provision for either the reviewing board, if one is established, 

or the courts, to consider disabilities under other laws if those should 

become apparent in the future.

Also, I point out that H.R. 674 does make provision for violation of 

State statutes. I believe it is unique in that regard.

The matter of restoration of citizenship I think is adequately dealt 

with in both H.R. 236 and other bills in making it possible by petition 

to a district court.

Then there is the whole question of a reviewing body. I deal with 

that in the testimony by pointing out tha t there is an amnesty commission in two of the bills and the National Amnesty Board in one of 

the other bills.

The sort of thin g th at I propose here for the committee’s consideration is perhaps a little different from any of those tha t have been 

described so far.

It seems to me that what we want to have established is a temporary 

board. I think that it would be one that should be at least around for 

5 years or so in order to give adequate time for these questions to be 

settled for people and perhaps even then be subject to extension if 

necessary, but at least with that sort of a life span.

What it essentially ought to be is an appellate body to which officials 

who wish to challenge the granting of amnesty, would apply rather 

than placing the burden upon the individual who has been amnestied 

to establish his right to it. In given situations, say, for example, if a 

person were to attempt to exercise his right to vote, which might have 

been denied because of his having a prison record, it would then be 

incumbent upon the official to make application to the board concerned 

and ask for a ruling. Whatever the decision, it could then be appealed 

to the courts.

I also suggest that the procedures be as informal and as simple as 

possible. There is quite a burden on citizens in these days when even 

the lawyers have lawyers, and we want to try to keep this as easy on 

the citizens in general as possible.

Therefore, I think that the burden in this case ought to be on those 

who challenge anyone who has received the remedy of amnesty in any 

given circumstances.

That is different, as I say, from the way it is dealt with here, but 

I think it offers something of value and I hope your committee will 

give it some serious consideration.

As I did mention earlier, we do reject the matter of conditions. I 

think we feel that granting amnesty is something that is called for in 

the present time or as soon as possible certainly and that no conditions 

are necessary for the time when it goes into effect.

I was impressed by section 3 of H.R. 236, which does indicate five 

effects in terms of restoration of rights to anyone who is amnestied 

and I think these ought to be incorporated into any legislation which 

is passed.
464

Two of the other bills, H.R. 674 and H.R. 13001 do deal with it 

briefly, but I like the wording in H.R. 236.

These were some of the points we raised as far as specific bills.

Lastly, we do deal with this matter of discharges from military 

service. I suggest perhaps tha t the question of discharges be dealt 

with as a past event and for the future by giving the person who is 

discharged from the military service a single discharge category. In 

other words, that he would be discharged from the military service and 

tha t would be it. If there were certain offenses which he committed 

while in the military service, these should be dealt with during the 

time that he is in the military service and should not be a burden upon 

him in the future. In other words, this is not something that should 

carry over into the civilian life in any wa y; that anything that is done, 

is done within the military, and is distinct from civilian life in this 

country. I think tha t is an important provision regardless of the 

offense.

I may say, I am speakng personally there. Our group has only dealt 

with this in the concept of amnesty for war resisters. My own concern 

though is that this broader matter be dealt with.

I would also like to point out, as I deal within the testimony here, 

that the machinery for conscription still exists. There are still prosecutions taking place under the Military Selective Service Act and this to 

me is really a disheartening matter.

I spoke recently to one of the people who was concerned with dra ft 

evading in the past, sort of anticipating tha t their case load would 

have gone down, and he said tha t on the contrary, at the present time 

they are actually having perhaps as many people as they did at the 

high point because the Justice Department apparently is prosecuting 

as many of these cases as it can at the present time.

And we urge you again, as Members of Congress, to completely dismantle the Selective Service System. We feel that the long-term interests of the Republic are going to best be taken care of by that 

particular action.

And even in a more general way, we hope t hat we will move away 

from the utilization of military responses to international questions. 

The whole question of nonviolent national defense, which is certainly 

not before you today, but nonetheless it needs to be on our minds, is 

something tha t we would urge to your attention and hope tha t the 

Members of Congress give serious attention to ways of getting us out 

of the situation in which there will be future Vietnams, World War 

I l ’s or anything else of a military character.

Thank you very much for having heard me on that.

Mr. Kastenmeier. Thank you.

[The statement of Raoul Kulberg follows:]

Testim on y of R aoul Kulberg

REGARDING AMNE ST Y FOR WAR RESISTERS AN D RELATED MATTERS

Mr. Cha irm an : I am Raoul Kulberg of 3916 McKinley Street, NW. Washington, 

D.C., 20015. I am appe aring today on behalf of the Frie nds Meeting of Washington, a Quaker congregation located at 2111 Florida Avenue, NW, Washington, 

D.C., 20008. I am altern ate chairman of the Meeting's Peace Committee.

Our Meeting has taken several actions showing its support, of amnesty for 

those who resisted the wars in Indochina. During the time of activ e U.S. militar y involvement in Southeast Asia, the Meeting supported vigils, demonstra-
465

tions, lawsuits, represen tations to Congress, let ters to and meetings with 

officials and othe r action s in orde r to ha lt at least thi s American participation.

On 16 Feb ruary 1969 the Meeting accepted a minu te offering san ctuary to 

“those dr af t resiste rs whose stand is the res ult of conscience and whose resistance is non-violent.” This commitm ent was most recently manifested in the case 

of Bruee Baechler, a young Friend from Ha rtfo rd residing in Washington. 

Bruee refuse d to regi ster for the dr af t which many Americans mista kenly think 

ended las t June. The Meeting provided san ctua ry until his arr est . (H e is now 

awa iting tr ia l.)

In November the Meeting sent a let ter to the Wash ington press urgi ng amnesty 

as a gestu re of reconciliation during the holiday season. On New Year's Eve, 

af ter a Meeting for Worship, local Frie nds held a vigil at the Whi te House 

urging amnesty . Most recently the Meeting approved my appe aran ce before this 

Committee. Although I am here solely a s a rep rese ntat ive of the Fri end s Meeting 

of Washington, our activitie s have often been in conjunction with Quake rs from 

the other Natio nal Cap ital area Meetings. As you will know from the testimony 

of the Frie nds Committee on Natio nal Legislation, Balti more Yearly Meeting, 

consisting of Frie nds living in the are a from Sou theastern Pennsylv ania down 

into Virginia , has minuted its supp ort for amnesty.

Let me first suggest the princip les rega rdin g the kind of amnesty we want. 

I will the n rela te those princ iples to the bills and resolutions before you. 

Finally, I will touch on some related mat ters .

The princ iples are these:

1. The amnesty should be as inclusiv e and widespread as possible. We ask 

th at it be applied to all cases arisin g from wa r resis tance regardless of the 

sta tut es or regulations held to be violated .

2. The amnesty should be gran ted as one or more class actions, not through 

a case by case review process. However, the re should be a reviewi ng aut hor ity 

to set tle disputed cases before they would go to the courts. The burde n of action 

and proof should be on the prosecution.

3. The amnesty should be unconditional. No sanctions, alt ern ative service, 

proofs of chara cte r or other burden s should be placed on those amnesti ed.

4. The amnesty should be complete. It should elim inate all legal impediments 

and restore all righ ts accruing to those amnestied.

The amnesty may be gran ted in one actio n or in several. The decision on this 

is politic al with rega rd to what can be accomplished by the Congress or the 

President at any given time. It is legal in th at severa l sta tut es and regu latio ns 

are involved. Howver, it should be o ur national policy to accomplish an amnesty 

th at meets all the four principles for all war resisters.

With this as our stand , we, of course, call for the rejec tion of H. Con. Res. 144 

and 385 an d any o ther expressions opposed to amnesty.

H.R. 236, H.R. 3100 and H.R. 5195 are esse ntially the sa me; herea fter my 

references to H.R. 236 include the other two bills.

As rega rds inclusiveness, H.R. 236 enumerates several Federal laws and the 

“regulations and policies promulgated pu rsu ant theret o.” I believe t ha t a careful 

review of the disa bilities suffered by war resiste rs should be m ade to assure this 

list does not overlook any pertine nt law or regula tion. Perhap s a general provision could be added grantin g some di scretion to a reviewing body and the cour ts 

to remove any disabilities shown to have aris en unde r any other sta tut e by 

reason of war resistance. H.R. 674 add s the useful provision of amnes ty for 

those offenses were a gai nst Sta te laws.

H.R. 236 and several of the other bills provide the best remedy for the r est ora ­

tion of citize nship by making it avai lable upon petition to any dis trict court.

An Amnesty Commission is established by H.R. 236 and H.R. 10979, consisting 

of five persons appointed by five sep ara te elected officials. H.R. 13001 sets up 

a Natio nal Amnesty “Board of thre e members appointed by the Pre sident by 

and with the advice and consent of the Senate. At this time, I would tend to 

favo r the form er approach as more likely to adva nce the case of amnsty.

H.R. 236 implies a temp orary commission but sets no time limit. Eithe r thi s 

provision or at leas t a five-year life span should be accorded the reviewing 

commission.

The reviewi ng aut hority I propose would not be for the purpose of case by 

case review. Ra the r it would be an app elate body of first reso rt in any cases 

where the effects of amne sty were challenged by any public official. Amnesty, 

including full restora tion of rights , would be presumed to have been accomplished 

unless an official appeal in a given case was made to the “am nesty review board.”
466

Decisions of the board would be appealed by eith er par ty to the Federal courts.

My intent in this proposal is to keep as much added burden as possible from 

the shoulders of the amnestied resi ster and as many cases as possible out of the 

courts. As noted above, the burden of proof should rest on the challenger; the 

procedures should be as informal and simple as r easonable discretion would allow.

We clearly rejec t the conditions for amnesty th at would be imposed by H.R. 

674, H.R. 2167, H.R. 10979 and H.R. 13001. In par ticu lar, we rejec t the openended provision of H.R. 674 for conditions “th at may be autho rized or imposed 

by the Pres iden t of the United Sta tes” If the re are good reasons for grantin g 

amnesty , as we firmly believe there are, then no imposition of conditoins is 

called for.

The five “effects” of Section 3 of H.R. 236 should be incorporate d into any 

amnesty legislation to restore the righ ts and sta tu s quo ante (a t leas t legally) 

of any amnestied resis ter. H.R. 2167, H.R. 10979 and H.R. 10980 fail to mention 

rest oration of rights. H.R. 674 and H.R. 13001 both briefly s tate t ha t the amnes ty 

they authorize shall h ave the effect of restorin g all civil and politic al righ ts th at 

have been lost or im paired.

Mr. Cha irman, th at puts the bills unde r consid eration in the persp ective of the 

principles we propose. The re is no one bill th at meets all the criteria . H.R. 236 

is clearly the closest to the need. We feel it should be red raft ed to encompass 

some elements from othe r bills plus the proposals th at we an d other s are p utti ng 

before your committee. We will welcome the opportunity to par ticipate in such 

a redra fting .

We also wan t to direct your atte ntio n to some broader related matters. The 

first of these is the question of discharges from mili tary service.

There have been successful efforts to ass ure people in the Armed Forces tha t 

they share con stitu tional rights with the civilian population. However, military 

life is still recognized as something distin ct. It has its own ways, both formal 

and informal, including its own criminal code, the Uniform Code of Military 

Justice.

We believe th at any punishme nts for m ilita ry offenses should be accomplished 

within the mili tary and not spill over into civilia n life. When a person ’s mili tary 

service is completed, he should be discharged withou t prejudice. There should 

be no rank ing of discharges th at penalizes a person outside of mil itary life. 

Once outside mili tary juri sdic tion there is no opportunity to alte r, rectif y or 

expunge one’s discha rge sta tus . Therefore, there should be a single discha rge 

classification.

We have been chagrined to lear n of the high ra te of prosecutions und er the 

dr af t law’ (th e Military Selective Service Act). We ask th at these be brought 

to an early halt . As I mentioned, our Meeting has recent ly witnessed the case 

of a fine young man who is being atta cked unde r these provisions. I am also 

concerned about the fa te of my own son, soon to be of dr af t age.

Throu gh this Committee we wTan t to ale rt our fellow’ citizens to the fact th at 

the conscription machinery still ex ists; only the power to indu ct has expired. 

The long-term intere sts of the Republic will best be served by the complete 

dism antli ng of the Selective Service System.

There is the pressi ng necessity for our Nation to find its path away from 

military responses to intern atio nal question s and tow ard the development of 

non-violent nationa l defense. This wall be a long and difficult road. I hope it is 

not too late to begin. I t is cert ainly not too soon. Amnesty for those who resisted 

wa r is a step th at will help us make th at journey tow ard a world living by 

the ways of peace.

Mr. K astenmeier. I hav e ju st one question of Profe ssor Freem an 

and th at is a hypothe tical in terms of exe rcis ing power. If it came 

to pass th at the Congress was in th e process of passing a general 

amn esty law. not prec isely unconstitu tional bu t somewhat in th at 

direction , and the President before it passe s pre em ptively announced 

a system with a review boa rd, a system of h an dlin g the same area in 

amn esty , an d announced th at th is was pu rsua nt to his power of pa rdo n 

or reprieve and th at he would r egard any p ass ing of an act by Co ngress 

which was pro tective, to be null and void as i nte rfe ren ce w ith hi s own 

exercise of pardon and repriev e, the n as the fri en d of the C ou rt how 

would you advise the reconciliation of th at matter?
467

Profe sso r F reeman. I th in k the Cou rt would hav e to decide th at 

Congress stil l has the righ t to adopt a gen eral sta tute, ju st a s it has 

the r ight t o repeal any statute th at exis ted in the pa st, an d the general 

rule is in a criminal sta tute, when it is repeale d, it nullifies all fu ture 

prosecutions. You could do th at.

He on the oth er hand has a perfe ct righ t rig ht, it seems to me, to 

gr an t pardons. An d acc ording to one Sup rem e Co urt case he has the 

righ t to gra nt pa rdo ns even b efore a person ha s been convicted, gene ral 

pardo ns so th at to th at degree he could act in th at manner. Bu t also 

the n I would think the Co urt would have to det erm ine th at your 

sta tute took in a sense preeminence, because there mi gh t be those w ho 

did not wa nt a pardo n, who wanted ra th er to have a gene ral a mnesty. 

So the sta tute should sta nd and those who wante d pardo ns, c ould g et 

pardon s.

Mr. K astenmeier. Th an k you.

Mr. Kulberg. Mr. Ch air ma n, ju st in th at reg ard . Al thou gh I am 

not eit he r a legal his tor ian or a law yer, it seems to me the variou s 

amn esties th at were granted af te r the Civil W ar to people who ha d 

been in rebe llion a ga ins t th e Un ite d State s were gran ted over a period 

of tim e and th at there were several of them which ap pa rently became 

more inclusive as tim e went along. An d it seems to me the Presiden t 

could certa inl y act within narro w bou nds and if the Congress then 

chose to act in wid er ones, why one could keep inc rea sin g t he b read th 

of the amn esty th at is gran ted wi tho ut being in conflict with one 

ano ther.

Profe ssor F reeman. T her e are two t hing s I need to say about t hat 

Civil W ar period. I think M r. Sandma n raised th e question, was there 

ever a general pardo n or an ything of th is sort given to person s who 

had less than honorable discha rge s or court-m artia ls esta blis hed 

again st them . And the a nsw er is yes. Pr esiden t Jack son gave a gen era l 

pardo n on a peculiar con dition—an d I do not th in k anyone speak ing 

here fo r amnesty will be unwi lling to accept th at con dition tho ug h 

the y will not accept most—an d th at wras th at all person s should be 

pardo ned pro vid ed the y nev er tr y to e nli st in the army.

Mr. Kastenmeier. Th at is a n interesti ng historical footnote. I yield 

to the gen tlem an from Massachusetts.

Mr. Drin an. Th an k you very much. Thi s has been an ex trao rdi na ril y he lpf ul statem ent. I am wondering if you wou ld expla in just 

a bit on pag e 5 the words th at there has been no general amnesty in 

Am erica since 1933.

Was th at unc onditional the n? W ha t does “genera l” mean in th at 

sense?

Pr ofessor F reeman. I am a lit tle tro ubled by exa ctly wh at words 

to use m yself. Fr an klin Rooseve lt’s amnesty m ade a “ general ” de cla ration th at those who ha d been gu ilty of violati ng the espionage laws 

and the selective service law s be amn estied. An d he add ed “o r genera lly pa rdoned.”

Now, t h at is th e broa dest one that we have had . An d fro m the n un til 

now we o nly have the Tr um an, th e 1946 one.

Mr. Drin an. 'Well, was th at 1933 one by the Pr esiden t, was th at 

only fo r people who h ad alr ead y been convicted and who ha d serv ed 

th eir time?

Pr ofessor F reeman. Tha t is correct.
468

Mr. Drinan. It did not reach the people who had never been 

apprehended ?

Professor Freeman. No, tha t is correct.

Mr. Drinan. Why do you call it an amnesty then?

Professor Freeman. I use it because the term was in general causes 

rather than in specifics and that comes over close at least to the concept of amnesty, which is to speak in gross terms.

Mr. Drinan. Do you think that the Congress could have done that 

very same thing in 1933?

Professor Freeman. They could have and they could have gone 

further I am quite sure.

Mr. Drinan. Do you think tha t there is any taste for the proposition or for the possibility tha t the Congress could pass an amnesty 

law that the President could not veto?

Professor Freeman. No; I am inclined not. Because I think Congressional amnesty power comes largely from article 1, section 8, 

clause 18,1 think, the general and necessary and proper clause coupled 

with the righ t to control the Army and so forth. And this would leave 

his power of pardon such I think t hat he would say this is a statute 

like all other statutes and I have a right to veto it.

Now, you can pass over his veto if you want to, but there is no exception to tha t right I am afraid.

And you will find in my article that I make an even stronger argument by saying, if any argument can be made, for the President’s 

position of a general pardon in th at the language of the Constitution 

with regard to his power of general pardon is not “crimes” but 

“offenses.” And “offenses” can be viewed as prior to conviction and, 

therefore, a general pardon for people who have not yet been even 

charged and convicted or sentenced would come under that. So I 

speak for a Presidential general pardon and /or a congressional 

amnesty.

Mr. Drinan. So the distinction you make is extraordinarily useful 

and we have not had testimony precisely on this before. I am sure 

this question will continue to arise.

Well, I have other questions based upon your article and this statement, but I will yield to the chairman. Thank you.

Mr. Kastenmeier. The gentleman from New York.

Mr. Smith. T hank you, Mr. Chairman. I want to welcome Professor Freeman here who has a connection with Cornell University Law 

School, as I do. Thank you for your testimony, Professor.

The committee is glad to have your law review article entitled 

“A Historical Justification and Legal Basis for Amnesty” and, Mr. 

Chairman, did I understand that this would be accepted as part of 

the record?

Mr. Kastenmeier. Yes; that is correct. Your understanding is 

correct.

Mr. Smith. And I am sure that it will be helpful to the committee 

from a historical basis and a legal basis.

Professor Freeman, I have one question for you. I think you said 

that President Johnson after the Civil War granted an amnesty among 

several apparently on the condition that the beneficiaries would not 

serve in the Army again.

Professor Freeman. President Jackson afte r the 1812 War.
469

Mr. Smith. Oh, I thought it was the Civil War because I knew that 

President Johnson did gran t some amnesty to Confederate soldiers 

and I could see why he wouldn’t want them to serve in their Army.

Thank you very much. One question, Mr. Kulberg. You indicated 

in your statement about the continuation or noncontinuation of the 

Military Selective Service Act th at you were concerned about the fate 

of your own son soon to be of dra ft age. I wonder what was the nature 

of t hat concern because the only requirement now of course is one to 

register af ter you get 18 years of age and there is no presently existing 

requirement of induction or authorization for induction.

Mr. Kulberg. Yes; I realize that, Mr. Smith. The reason of my 

concern was in the context of my comments about Mr. Baechler, who 

also faced the same situation and did refuse to register under the 

statute at the present time.

Now, I have no way of knowing quite frankly as to what my son’s 

intention will be. I just know him to be very much a young man of 

determination and independence. And whether he will decide in the 

nature of his belief to register or not to register, and I will support 

him in either case, I am just concerned if he should happen to decide 

not to register, tha t there is really no gain for the country in this 

particular case and there certainly would be considerable loss in his 

case.

Mr. Smith. Well, that is a good answer I think. From my point of 

view I would think tha t there would be little danger to a person’s 

conscience or otherwise in registering because, if a Selective Service 

System is ever started again—and I hope it would not ever be necessary—but i f it is, with induction and the rest of it, if the past is any 

guide for the future, I would say tha t all of his rights would be 

protected as far as his conscience is concerned.

Mr. Kulberg. Well, I think we are dealing with something perhaps 

not entirely new, but this matter of generations, Mr. Chairman. "When 

T was closer to dra ft age myself, I did take the position as a conscientious objector. As it did work out, I did not have to serve—and 

this was not necessarily because of the conscientious objector status— 

because bv the time my case had gone through various reviewing 

bodies and tha t sort of thing the draft board got around to my final 

1-A and I was then over 26 years of age. So they sort of dealt with it 

by administrative delay, but T at least felt at the time that registering 

as a conscientious objector was appropriate under the law.

I think many of us subsequently know and have been made more 

sensitive to this matter in terms of cooperation even to this extent, 

and tha t many young men were brought to the position during the 

Vietnam conflict of refusing to cooperate with the conscription system 

even to the extent of registration.

Bruce Baechler, who I described in my testimony, has taken the 

position that in good conscience he does not feel tha t he can even 

cooperate with the system to tha t extent at the present time.

Quite frankly if I were once faced by the situation of having to 

register, I am not quite sure. I am sort of in a bureaucratic trend of 

mind and I tend to go along with these things, but I think there are 

problems when you do cooperate with machinery within a democratic 

society, as I feel we are in general, whether one can really safely 

cooperate with the machinery. It is this whole question of the machin-
470

ery that is raised by young people, about cooperating with the system,

I think it is a very serious one we have to deal with. In contrast 

with Mr. Sandman’s comment th at whether or not you can deal with 

each law as it comes along, I think in a sense when it comes to the 

serious matters, that each of us does sort of have to make an individual 

decision certainly not for frivilous matters for each of us to just 

discard legal responsibilities that are placed upon us, but neither I 

think can we deal with the situation bv saying “Well, it is the law so 

I will go along with it regardless.”

I think it is sort of a kind of situation tha t authoritarian states 

have found themselves in the past when the citizens have been unwilling to go along with it.

Certainly the papers in this country have been praising Mr. Nixon 

and his speaking out. He was against Soviet law. And if one takes a 

strict view on the law-and-order situation, the Solzhenitsyn stand was 

clearly one against it, but I think many of us feel tha t he took an 

important position t hat a human being must take some times.

Mr. Smith. Perhaps the Soviet Government would have been better 

had they granted him amnesty.

Mr. Kxjlberg. I would think so. I think the best interest of the 

Soviet Union would be served by tha t as I feel the best interest of 

the United States would be served in this case.

Mr. Kastenmeier. The gentleman from Iowa.

Mr. Mezvinsky. I just want to make a comment concerning your 

article that appeared inthe Arizona State Journal and I assume this 

was volume 1971, but it was probably put out in 1972, is that right?

Professor Freeman. Bight.

Mr. Mezvinsky. You pointed out—and I thought it was very interesting—on page 533 th at “In most non-Communist countries you do 

have an amnesty and they are allowed to try again for political power.” 

Then you also recommended at the very end that we should set up 

a joint committee to study the whole problem of pardon and amnesty.

Now in your statement some 3 years later I gather what you are 

saying is we do not necessarily have to move into a joint committee 

to study it, but rather we should instead take the action regarding 

unconditional amnesty. Would you care to comment on that?

Professor Freeman. Yes, I am saying thank you for having the 

dialog here before this committee since no other committee was 

formed. You are quite correct about the article there. And I also point 

out a t one point there—and many people would lie surprised at this— 

a list of countries that granted some sort of amnesty afte r World 

War II.

And I make a rhetorical comment here in the testimony, th at I have 

found tha t at the end of World War II we did in fact amnesty over 

1 million West Germans and over 1 million Japanese for war crimes 

and what a travesty it would be if we could give 2 million “enemies” 

amnesty and could not amnesty our own sons and daughters.

Mr. Mezvinsky. Thank vou. I just wanted to have your remarks on 

that subject for the record. I appreciate both of these pieces of testimony. Thank you.

Mr. Drinan. Mr. Chairman ?

Mr. Kastenmeier. The gentleman from Massachusetts, Mr. Drinan.

Mr. Drinan. One very difficult question for me th at I have been 

meaning to ask for years: Is there any case for saying that Anglo-
471

American law or common law in all of the countries to which it has 

gone, has a tradition of giving amnesty and that these countries have 

adopted the common law and do in fact give amnesty more readily 

than we do?

Professor Freeman. I think that Amnesty International, which has 

studied this whole area, has made that general kind of statement but 

I do not know that it stands up because in reality many of the South 

American countries, for example, have granted amnesty in the Western Hemisphere.

Mr. Drinan. Thank you very much.

Mr. Kastenmeier. Thank you both very much.

And Ed Snyder, I want to recognize you as joining the other witnesses at the table. We welcome you as well and we are pleased at the 

contribution you all have made. I t will be invaluable for the purposes 

of this committee.

Professor F reeman. Thank you very much.

Mr. Kastenmeier. The next witness is Mr. James Struve, representing Wisconsin amnesty project.

TEST IMON Y OF JAM ES STRUVE, RE PR ESEN TIN G TH E WISCON SIN

AMNESTY PROJECT , ACCOMPANIED BY EDW ARD DAMATO, NA ­

TIONAL COORDINATOR, VIETNAM VETER ANS AGA INST TH E

WA R, CHICAGO, ILL ., AND SANDRA RUTHE RFO RD, VANCOUVER

AMERICAN EX ILE ASSOCIATION

Mr. Struve. Thank you, Mr. Kastenmeier. My name is Jim Struve 

and I will try to be brief. I would like to request, if there is any time 

when I am done, that tw’o others be allowed to share their opinions. 

Edward Damato from the Vietnam Veterans Against the War and 

Sandra Rutherford from the Vancouver American Exile Association.

Mr. Kastenmeier. I am sorry but we are going to have to make 

the same determination we made with respect to them as we did with 

the other witnesses.

I must tell you and the other people in this room t hat there are 

hundreds of organizations and persons and families and mothers and 

others who have requested to appear.

We have invited a number of persons and organizations to submit 

testimony and indeed we will have, as I indicated earlier, I think 

some 10 or 15 statements from people in exile submitted for the record.

There are a number of other witnesses who have come a t least as 

far as you have, Mr. Struve, who are yet to be heard from today. 

And with respect to them, I must respectfully decline your offer that 

other witnesses appear.

We are however most grateful to you that you have come.

Mr. Struve. Thank you. I respect your judgment and I hope at 

some point that more adequate time is provided for them.

My name is Jim Struve of Madison, Wis. and I appear before 

this committee today representing the Wisconsin Amnesty project, 

to speak in support of universal and unconditional amnesty.

The Wisconsin Amnesty project was formed in March 1973 in 

response to the initiative of two farmers from a rural Wisconsin
472

community who felt th at it was tim e th at concrete acti ons be un de rtak en to achieve a univ ersal and unc onditional amn esty . T he members 

of the Wisconsin Am nesty proje ct su pp ort th is stance of univers al 

and uncon dition al amn esty. To achieve our goal, we have focused 

on the tas k of general edu cation and inform ati on al activ itie s to pr omote increased pub lic discussion of the issues th at are rel evant to 

such an amn esty.

I attac hed sup pleme nts to my statem ent, which exp lain ou r orga ­

niz ation and who our membership is.

Opposition to the wa r in Ind ochin a was not only a question of 

mo ral ity and conscience, b ut also reflected a choice betwe en c onflictin g 

laws. The purpose of this statem ent is to focus on the more fu nd amenta l issue of the ille gality of Am erican pa rti cipa tio n in the In do ­

chinese wa r and the resulting consequences of resistance by large 

num ber s of the Am erican pub lic to un po pu lar U.S . mili tary policies.

We find it is difficult to determ ine ju st how m any A merica ns a ctu ally 

engaged, openly or cov ertly, in opposition to Am erican military policies in Ind och ina . Ot he r pers ons who testif y may sugges t widely v ar ying num bers of peop le who would be affected by an amn esty. An at ­

tac hed sup pleme nt con tains a list of some of the figures our o rganiza ­

tion has co mpiled. We believe 500,000 Am eric ans is a very conserva tive 

estimate to sugg est th e scope of th e prob lem we a re deali ng w ith.

We believe that an amn esty should apply to all Am eric ans f or there 

are few, if any, U.S. citizens w’hose lives w’ere left untouched by U.S. 

involve men t in th e I nd ochina w ar.

To arg ue abo ut who was correct and who w’as wrong seems not 

only an endless debate, but also a futile and was ted use of o ur hum an 

resources. Amnesty derives from the Greek word amnes tia which 

means “not rem em ber ing '’. I t is a way legally to und o wha t the law’ 

its elf has done. As Ramsey Cl ark has sa id, a mnesty does n ot condemn 

nor condone an act. Altho ugh we can not ign ore the pas t, we must 

leg ally forget our cynical need to avenge ou r past.

Rec ognition does need to be given to the difficult dile mm a th at was 

faced by young Am eric ans o f dr af t age. Many of o ur c ou ntry’s youth 

realize d th at there was no lega l dec lara tion of wa r to authorize the 

con duc t of U.S. foreign policies in Sou the ast As ia; yet the Selective 

Service laws compelled service in the m ilitary forces tha t would ca rry 

out t hose und eclared policies. Fu rth ermore, alt hough few’ people could 

art iculate the details of inter natio nal law, a dile mm a resulte d from 

a consciousness amo ng many young people th at coo peratio n wi th Selective Service law’s implied some kin d of vio lati on of int ern ation al 

codes for the cond uct of wa rfa re, while com pliance wi th these in ternatio nal codes req uired non coopera tion with Am erican law’s, and attend an t criminal prosecution.

Th is sense of legal dile mm a w’as clearly re al: very precise intern ational tre ati es con cerning the con duct of wa r w’ere set forth by the 

Ha gue Conventio ns in 1899 and 1907 as w’ell as by the four Geneva 

Con ventions of 1949. The Un ite d State s signed those int ern ational 

tre ati es, becoming a pa rty to th em, and such internationa l agreem ents 

must not be in conflict w ith the laws of our land.

As amnesty is bein g discussed now, how’ever, those pers ons who 

chose illegal form s o f resistan ce to national military p olicies have been 

forced to assume an un fa ir r esp onsibility fo r a w ar which is em erg ing
473

as the most unpopular conflict in our country’s history. Resisters are 

being made the scapegoats for the disturbance and discontent that 

the war created in American society.

But do we not all share responsibility for this war? How many 

Americans paid taxes to support an inflated Defense Department 

budget that subsidized our military involvements in Southeast Asia? 

How many American political leaders consented to the recommendations of military experts during the era of the Indochina war?

To suggest conditional amnesty only perpetuates discrimination 

against those persons who chose to act out their opposition to the war 

openly. An argument for conditional amnesty overlooks the fact that 

many young Americans faced no alternative but illegal resistance to 

the war, while hundreds of thousands of young men favored by fate 

found ways to circumvent personal involvement in the Indochina war 

by legal but arbitrarily available avenues. These options, such as school 

and job deferments, were forms of noncooperation acknowledged by 

every member of Congress who voted to support the Selective Service 

System. This kind of noncooperation was also endorsed by the sentiments of a large sector of the American public. Unfortunately, local 

dra ft boards varied tremendously in th eir interpretation and application of provisions of the system.

Even more clearly, conditional amnesty violates the meaning of the 

word amnesty itself: forgetting. The mechanics of a conditional amnesty require some form of review boards; which would seem administratively impossible, given the large numbers of people who are in 

need of amnesty. Furthermore, review boards would only serve to reinstitute the same discriminatory and judgmental decisionmaking 

process against which citizens concerned with civil rights voiced their 

opposition during the draft period.

Undoubtedly, some persons whose conduct has been morally questionable would benefit from a universal and unconditional amnesty: 

both those who performed violent acts of opposition to American military policies as well as those who carried out violent acts of war against 

human life by their participation in those m ilitary policies would be 

amnestied. We recognize tha t there will be injustices in granting amnesty in any for m; however, we feel t hat the injustices that will result 

from a universal and unconditional amnesty will be less than would 

result from the inclusion of any conditions.

Our stance places us in opposition to all legislation that has thus far 

been introduced to deal with the need for an amnesty. We cannot support any legislation that does not encompass universal amnesty; we 

cannot support any legislation that perpetuates the vindictiveness of 

conditional requirements in granting an amnesty; we cannot support 

any legislation that requires the implementation of review boards to 

allow the opportunity for discriminatory judgments of individual warrelated activities.

We are dismayed bv the reluctance o f the American Government 

to undertake more positive steps to respond to this pressing need for 

reunification of the American people. American democracy in the 

1970’s stands in sharp contrast to the compassion displayed by our 

Nation following earlier wars as well as to the policies that have been 

undertaken by other nations. For example, several European nations 

granted amnesties to persons engaged in the compromising activities

31 -65 8 0 - 7 4 - 3 2
474

follow ing World W ar II . Ja pa n granted a sweepin g amnesty to 

1,300,000 of its citizenry followi ng Worl d W ar II .

So it is in this sp iri t of regene ration th at wre requ est the Congres s 

of the U nited State s to e nact legisla tion to allow for u niv ersal and uncon ditiona l amnesty. To resolve all the specific details of such an 

amn esty will, undoubtedly, be a difficult tas k, bu t one which is essentia l to res tore stability to t he lives of hundre ds of tho usa nds of A me ricans who would benefit from such congressional actions.

We feel an amn esty must be universal, for which Am eric an among 

us is rea lly free of the need for some form of amnesty rega rding the 

Ind ochin a war ?

We feel an amn esty must be unc onditional, for to sit in jud gm ent 

of the correctnes s o f any Am erican ’s response to the Ind ochin a war is 

to pe rpetu ate the dis crimination which so chara cte rized this con troversial war.

We feel an amn esty m ust be sweeping, for ne ith er Congress nor the 

Presiden t made a formal dec laration of war, so it is difficult to decide 

ju st how7

 fa r back in time an am nesty should e xten d. We might suggest 

an amnesty granted now sho uld apply to all liv ing Americans. Tha t 

would include those persons from the Korea n wa r and Worl d W ar I I 

who were never extended such an act of for getting.

If Congress is hesitant to underta ke step s tow ard the gr an tin g of 

an amn esty because of an u ncert ain ty about wh at the America n public 

feels abo ut this issue or because you c ann ot resolve the specific details 

of an amnesty, I wou ld stron gly suggest th at members of this committee, and oth ers as well, con duct pub lic hearings within your home 

distr icts to hear from your votin g constitu ency. Fa ilu re to employ 

the dem ocratic process of local pub lic heari ng s does no t justi fy Congressperso ns rem ain ing in Washin gto n to rat ion alize ina ction on thi s 

issue.

I migh t add to my sta tem ent th at such gro ups as the one th at I 

rep res ent , the Amnesty Pr ojec t of Wisconsin, and oth ers across the 

country would be very wi lling to coopera te and assist in setting up 

such local hea rings. I think the discussion I he ard pr io r shows how 

difficult it is going to be to resolve all of the issues involved an d I think 

one of the ways we can hear from large num bers of people is to get 

righ t back at t he g rassro ots level and allow the op po rtu nity for both 

sides to speak out as much as they can.

Tha nk you.

Mr. K astenmeier. Th an k you. Incid ental ly, you come from Wisconsin ?

Mr. Struve. Rig ht, th at is where I work.

Mr. K astenmeier. I wou ld add here that I do end orse local foru ms 

on such issues as this. I believe one was held in my district and , as a 

matter of fac t, whate ver may be the res ult of these hearings, they 

ou gh t to have an effect of ju stify in g or at lea st of su pp ortin g a na ­

tio nal dia log on the question.

Now th at the wa r is over I person ally think it is ap prop riate to see 

wh eth er th is issue can be resolved by movin g f orwa rd and doin g someth in g positive. The question is can we, and, i f so, w hat can w7e do?

So yo ur con trib ution in this resp ect is appre cia ted .

Th e gen tlem an from Massach usetts, Mr. Dr inan , do you have any 

questions ?
475

Mr. Drinan. No. I wa nt to th an k you fo r your testim ony and for 

your contr ibu tions and fo r your statem ent. Th an k you.

Mr. Kastenmeier. The gen tlem an from New Y ork.

Mr. Smith. T ha nk you, Mr. Ch airma n. Th an k you Mr. Struve, for 

coming and giv ing us your testim ony from the Wisconsin Am nesty 

Proje ct. I have one question I am curious about.

You made the sta tem ent t hat Jap an g ranted a swee ping am nesty to 

1,300,000 of i ts citizens following W orld W ar I I. W ha t was th at for ? 

Wh y were there 1,300,000 Jap anese t ha t the Japanese Gove rnm ent had 

to g ra nt am nesty to ?

Mr. Struve. The specifics of that I am af ra id I wou ld hav e t o look 

up. All I know it was fo r wh at they call ed com promis ing activities 

and a t some po int there was enough dissension in th e ranks th at people 

were not follow ing military policies of Ja pan to t he lette r and there 

were enough people to constitu te 1,300,000 who were affected by that.

I think one of the sup pleme nts th at was pu t into the dra ft of the 

Am eric an his tory in the Ind ochin a war mak es reference to that.

If you want, I can look up the exa ct source of th at and supply it 

to the comm ittee.

Mr. Smith. Wou ld you supply t hat fo r the comm ittee ?

Mr. Struve. Yes, I can.

Mr. K astenmeier. You may send it to me or to the committee.

The ge ntle man from Iowa.

Mr. Mezvinsky. Th an k you, Mr. Struv e. I ga ther you are a commu nitywide gro up. As such, how did you form yo ur organiz ation? 

I)o you have m any stu dents ? Can you give us some back grou nd on how 

you were form ed and how you pu t the pac kag e tog eth er con cerning 

the Wisconsin Amnesty P rojec t?

Mr. Struve. Yes, we have go tte n very lit tle su pp ort in ou r efforts 

with students. We are basically nonstudent .

As I said , last wi nter in abo ut Ma rch, two farm ers fro m th e ru ra l 

com munity came in and sta rte d pricking the conscience of some of 

us who were more active in the city of Mad ison and asked wh at we 

were doing on amnesty. Quite fra nk ly, we were no t doing anyth ing .

So throug h a series of meetings and ge tti ng people fro m th e legislat ure, churc h gro ups, and so on, we forme d wh at we c alle d th e W isconsin Am nesty Proje ct, which is a statew ide org ani zat ion .

Some of ou r mem bers hip includes the Wisconsin Counc il of 

Chu rches, the Am eric an Civ il Libe rties Un ion , the Wo men’s In te rnatio nal Leagu e fo r Peace, the Me thodist Ch urch, the Presby teria n 

Churc h, the Catho lic Ch urc h, Catho lic pri ests, and 90 on. We have 

been engaged pr im arily in a statew ide sp eak ers bureau, s tatewide dissem ination of news and setting up forum s with people at th e local 

level and such other a ctiv ities.

We have no membership as such, bu t thes e groups are mem bers of 

the forum of the Wisconsin Am nesty Pr ojec t and act to facilitate 

gro up acti on in the communities.

So most of our work is outsid e Madison. T hat constitu tes a very 

sma ll par t of our act ivities and wh at we do there.

Air. Mezvinsky. Th an k you very much.

Mr. K astenmeier. T ha nk you. Tha t was very illum ina tin g. Tha nk 

you fo r yo ur sta tem ent and your app earance.
476

Mr. K astenmeier. Mr. St ruve ’s statem ent and add end um will be 

plac ed in the record.

[The documents refer red to follow :]

Amnesty Testimony Given to House J udiciary Subcommittee

I am Jim Struve of Madison, Wisconsin and I appear before this committee, 

representing the Wisconsin Amnesty Project, to speak in supp ort of unive rsal and uncon ditional amnesty.

The Wisconsin Amnesty Proj ect was formed in March of 1973 in response to 

the ini tiative of two farmers from a rur al Wisconsin community who felt th at 

it was time th at concrete actions be undertak en to achieve a unive rsal and 

unconditional amnesty. The members of the Wisconsin Amnesty Proj ect suppo rt 

this stance of unive rsal and uncond itional amnesty . To achieve our goal, we 

have focused on the task of general educationa l and infor mati onal activ ities 

to promote increased public discussion of the issues th at are relevant to such 

an amnesty.

Opposition to the Wa r in Indoch ina was not only a question of moral ity and 

conscience, but also reflected a choice between conflicting laws. The purpose 

of thi s stateme nt is to focus on the more funda mental issue of the illega lity of 

American part icip atio n in the Indochinese War and the resulting consequences 

of resis tanc e by large numbers of the American public to unpo pular U.S. mili tary 

policies.

It is difficult to determ ine jus t how many Americans actu ally engaged, openly 

or covertly, in opposition to American mili tary policies in Indochin a. Other 

persons who testify may suggest widely vary ing numbers of people who would 

be affected by an amnesty. An attached supplem ent conta ins a list of some of 

the figures our organizatio n has compiled. We believe 500.000 Americans is a 

very conser vative esti mat e to sugge st the scope of the problem we are dealing 

with.

We believe that- an amnesty should apply to all Americans, for there are few, 

if any, United Stat es citizens whose lives were left untouched by U.S. involvement 

in th e Indoch ina War.

To argu e about who was corre ct and who was wrong seems not only a n endless 

debate, but also a futi le and wasted use of our human resources. Amnesty derives from the Greek word amn estia which means “not remembering”. It is a 

way legally to undo wha t the law itse lf has done. As Ramsey Clark has said, 

amnes ty does not condemn nor condone an act. Although we cannot ignore the 

past, we must legally forget our cynical need to avenge our past.

Recognition does need to be given to the difficult dilemma th at was faced by 

young Americans of draft age. Many of our cou ntry ’s youth realized that there 

was no legal decla ration of war t o auth orize the conduct of U.S. foreign policies 

in Southeast Asia : yet the Selective Service laws compelled service in the 

mil itar y forces that would car ry out those undeclared policies. Furth ermore, 

althou gh few people could art icu late the details of inte rnation al law, a dilemma 

resulted from a consciousness among many young people th at cooperation with 

Selective Service laws implied some kind of violation of inte rna tion al codes for 

the conduct of warfare, while c ompliance with these intern atio nal codes re quired 

non-cooperation with American laws, and attendant criminal prosecution.

This sense of legal dilemma was cle arly re al: very precise inte rnation al treaties 

concernin g the conduct of war set forth by the Hasrue Conventions in 1899 and 

1907 as well as by the fou r Geneva Conventions of 1949. The United States signed 

those intern atio nal trea ties, becoming a par ty to them, and such inter nati ona l 

agree ments mus t not be in conflict with the laws of our land.

As amnes ty is being discussed now, however, those persons who chose illegal 

forms of resis tance to natio nal mili tary policies have been forced to assume an 

un fair respo nsibility for a war which is emerging as the most unpop ular conflict in our cou ntry ’s history. Resisters are being made the scapegoats for the 

disturba nce and discontent th at the wa r crea ted in American society.

But do we not all sha re respo nsibility for this wa r? How many Americans 

paid taxe s to suppo rt an inflated Defense Depa rtme nt budget that subsidized our 

mil itar y involvements in Southeast Asia ? How many American politic al leade rs 

consented to the recommendations of mii ltary expe rts duri ng the era of the 

Indoch ina wa r?
M l

To suggest conditional amnesty only perp etua tes discr imination aga inst those 

persons who chose to act out the ir opposition to the war openly. An argum ent for 

conditional amnesty overlooks the fact tha t many young Americans faced no 

alte rna tive but illegal resistance to the war, while hundr eds of thou sands of 

young men fa vored by fate found ways to circ umvent personal involveme nt in th e 

Indochina War by legal but arb itrari ly available avenues. These options, such as 

school and job deferments, were forms of non-cooi>eration acknowledged by every 

meml>er of Congress who voted to suppo rt the Selective Service System. This 

kind of non-cooi>eration was also endorse d by the sentiment s of a large sector 

of the American public. Unfo rtuna tely, local dr af t boards varied tremendously 

in t heir interp erta tion and applic ation of provisions of th e system.

Even more clearly, conditional amnesty violates the meaning of the w’ord 

amnesty itself: forgetting. The mechanics of a conditional amnesty requ ire some 

form of review bo ar ds : which would seem adm inis trativel y impossible, given the 

large numbers of people who are in need of amnesty. Furt herm ore, review hoards 

would only serve to reinst itute the same discr imin atory and judgmen tal decisionmaking process against which citizens concerned with civil righ ts voiced the ir 

opj>osition during the dr aft period.

Undoubtedly, some person s whose conduct has been morally questio nable would 

benefit from a universal and uncon ditional am ne sty : both those who performed 

violent acts of opposition to American mili tary policies as well as those who 

carried out violent acts of war again st huma n life by the ir par ticipation in 

those mili tary policies would he amnestied. We recognize that there will be 

injustice s in grantin g amnesty in any fo rm ; however, we feel th at the injustice s 

th at will resu lt from a unive rsal and unconditional amnesty will be less tha n 

would resu lt from the inclusion of any conditions.

Our stanc e places us in opposition to all legislation th at has thu s fa r been 

introduced to deal with the need for an amnesty . We cannot supp ort any legislatio n th at does not encompass univ ersal am ne sty ; we cann ot supix>rt any 

legislation th at peri>etuates the vindictiveness of conditional requ irem ents in 

grantin g an amnesty : we ca nnot supp ort any legislation th at requires the implement ation of review boards th at allow the opportunity for discr imin atory judg ements of indiv idual war -rela ted activi ties.

We are dismayed by the reluctance of the American Government to und ertake more positive steps to respond to this pressi ng need for reunification of the 

American people. American “democracy” in the 1970’s stan ds in sha rp con trast 

to the compassion displayed by our natio n following ear lier war s as well as to 

the policies th at have been undertak en by other nations . For example, several 

Europ ean nations gran ted amnesties to persons engaged in the “compromising 

activities ” af ter World Wa r II. Jap an gran ted a sweeping amnesty to 1,300,000 

of its citizen ry following World War II.

It is in this spirit of regen eratio n th at we reque st the Congress of the United 

States to enac t legislation to allow for universal and uncon ditional amnesty. 

To resolve all the specific deta ils of such an amnesty will, undoubtedly, be a 

difficult task, but. one which is essential to reso rt stability to the lives of hun dreds 

of thousands of Americans who would benefit from such Congressional actions.

An amnesty must be universal, for which American among us is really free 

of the need for some form of amnesty rega rdin g the Indoch ina W ar?

An amnesty must he unconditional, for to sit in judgment of the correct ness 

of any American’s response to the Indoch ina War is to per pet uat e the discrim ination which so characte rized thi s controversial w’ar.

An amnesty must be sweeping, for nei the r Congress nor the Preside nt made 

a formal Declaratio n of War, so it is difficult to decide how fa r back in time 

an amnes ty should extend. We suggest an amnesty gran ted now should apply 

to all living Americans. Th at would include those persons from the Korean 

Wa r and World Wa r II who were never extend ed such an act of forge tting.

If Congress is hesitant to und erta ke positive steps towa rd the gra ntin g of 

an amnesty because of unc erta inty abou t wh at the American public feels about 

this issue or because you cannot resolve the specific det ails of an amnesty, 

I would strongly suggest th at members of this committee, and othe rs as well, 

conduct public hearings within your home dis tric ts to hear from your voting 

constitue ncy. Fa ilu re to employ the democ ratic process of local public hearings 

does not j ust ify C ongresspersons remainin g in Washington t o rationa lize ina ction 

on this issue.

Than k you for allowing me the oppo rtuni ty to app ear before this committee 

today.
478

Wisco ns in Amn esty P roje ct

STATEM ENT OF PURPOSE

The Wisconsin Amnesty Project is committed to working for universal and 

unconditional amnesty for all persons suffering disabilities because of opposition to United States involvement in the War in Southeast Asia, to the dra ft, 

and to the military.

Immediate amnesty without conditions (such as altern ative service) and without case-by-case review would inclu de:

All military resisters (including “deserters”) and dr aft resisters, whether in 

exile or underground in the U.S .;

All persons who, because of their opposition to the war and the military, 

have been administratively punished, convicted by civilian or military courts, or 

are subject to prosecutio n; and

All veterans with less-than-honorable discharges.

The purpose of the Wisconsin Amnesty Project is to educate the people of 

Wisconsin about the need for amnesty and to mobilize them to work for a 

universal and unconditional amnesty.

WHA T IS AM NE STY?

Legally, amnesty differs from jwirdon in that iwirdon implies guilt while amnesty does not. According to the U.S. Supreme Court (in the post-Civil War jieriod), “Amnesty is the abolition and forgetfulness of the offense: pardon implies forgiveness.” Also a pardon usually aixplies only to a specific individual while 

amnesty applies to an entire class of people. However, there is a tendency at 

present to regard am nesty as an act of forgiveness.

Conditional amnesty.—This is a measure which removes the legal jienalties for 

resistance on condition th at the resister perform alte rna tive service.

General or universal amnesty.—This is an amnesty which includes deserters as 

well as people who violated the selective service laws as civilians.

H istorical no te : Amnesty has a long history in Western trad itio n—the first 

recorded amnesty was proclaimed in 404 BC by Thra sybulus of Athens. Roman 

law, upon which much of our law is based, contained the concept of restitutio in

interrum (loosely, “restoring the whole”). While many peace treaties contain amnesty clauses, eith er explicity or implicitly, the treaties after World War I and 

World War II did not. However, France, Germany, and Jap an have declared 

amnesties for persons engaged in “compromising activities” durin g World War I I ; 

in the case of Jap an this included some 1,300,000 persons.

HOW MA NY ARE ELIGIBLE FOR AM NE STY?

Preside nt Nixon has spoken of “these few hundred who chose to desert their 

country . . .”

The Pentagon repo rts that between July 1906 and July 1972 there were more 

tha n 420,000 deserters, of whom at least 32,000 are still at large.

Estimates of the number of exiles in Canada range from 20,000 to 50,000 or 

more.

About 10,000 men are in jail or under indictment for refusing or evading military service.

Toward the end of the massive American ground combat presence in Indochina, the FBI estimated that about two-thirds of the 36,000 men and women i t 

picked up each year were wanted in connection with avoiding military service.

About 40 percent of the young men ordered to report for induction into the 

Army initially failed to comply.

It is not possible to estimate the number of d ra ft delinquents who have never 

been indicted due to court overload, much less the number of men who have never 

registered for the d raft.

The rate of desertion from the Army in 1971 was 73 per thousand, the highest 

in this century.

Between 300.000 and 560,000 servicemen have received less-than-honorable discharges, resulting in the loss of vete rans’ benefits, as a resu lt of opposing the 

Vietnam war.
479

THE DRAFT IN AMERICAN HISTORY AND THE INDO CHINA WAR

The draft in American history

Karl Hess and Tom Reeves, in The End of the Dra ft, offer this definition of 

conscriirtion: “Conscription is confiscation. It is the process wherein the esta blished aut hor ity of a nati on-state confiscates not the material property but the 

very lives of its citizens. Its purpose is to defend th at established aut hor ity and 

the process it re prese nts.”

Many of our ances tors came to America to escape Europ ean military conscription, unwilling to be pawns of the mil itar ists . Duri ng most of our histo ry, conscrip tion was considered alien to American principles of fredom.

George Washin gton proposed compulsory mili tia but was reject ed by the 

emergency natio nal leadership. Duri ng the War of 1812, Congress opposed d ra fting men from the mili tia into the regular army. Daniel Webster was the leading 

opponent, asking, “Is this, Sir, consis tent with the cha rac ter of a free governmen t? Is this civil lib erty? Is this the real chara cte r of a free gover nmen t? No, 

Sir, indeed i t is not . . .”

Durin g the Civil War, the first American dr af t law was adopted. Men were 

dra fted from those communitie s which failed to produce a predetermin ed quota 

by voluntary means. Men could hire a sub stit ute or pay the government $300 to 

prevent being draf ted. Two percent of the army was made up of draftees. Draft 

riot s occurre d in New York, Boston, Rutl and, Vermont, Ports mouth, New H ampshire, and Wooster. Ohio. T he dr aft ended in 1864 a nd no fu rth er conscription law 

was adopted until World War I.

In World War I conscription met extensive discussion and significant Congressional opposition. Congressman Joh n Nicholls from North Carolina state d, 

“In my sta te they have a feeling th at a conscript is a slave. And I wan t to ask 

you thi s qu est ion : Would this not be a gre at government to go to Germany and 

free slaves with an ar my of sla ves?”

The Selective Service La w was adopted on May 1 8,19 17. Conscientious objectors 

were exempted from combat onlj' if they were members of a well-recognized sect 

whose princip les forbade its members to engage in war. Of those called in the 

first dra ft, 50.62% put in claims for exemption. More tha n a qu art er million or 

eight percent failed to appe ar at all and succeeded in escaping a rre st. Thousands 

failed to appear to registe r and thou sand s more refused to app ear when called. 

So many men lef t the country to escape the dr aft th at an order was issued prohibiting this. So many had the ir teeth extracted in order to disqu alify physically 

for the dr aft that the War Departm ent issued a warning to den tist s th at they 

were liable to prosecution for aidin g dr af t evasion. Conscription ended with the 

war.

In 1940 the United States adopte d a selective conscription law unde r which 

conscientious objectors were exem pted a nd allowed to do ci vilian work of national 

importance, provided the ir objection was by virt ue of religious training and 

belief. Opposition was very stron g in the U.S. since consc ription was seen by 

many as leadin g to America’s entr y into the war. The 1940 law was adopted for 

one ye ar only.

On August 18, 1941, the Selective Service Extension Act was adopted in the 

House by a one-vote margin 203-202. Fifteen thous and men went to jai l during 

World War I I for selective service violations.

The law expired in March, 1947 but was rein stat ed in June, 1948. Attempts to 

term inate the law have failed. The law remains int act at prese nt except for one 

section which expire d las t June , th at which gives the Preside nt the author ity 

to induct.

Vietnam and the dra ft

The peacetime dr af t allowed the war to be escala ted with out the consent of 

Congress. Unlimited supply of manpower meant more war power.

During Vietnam dra ftees made up 11 percent of the Ar my ; 25 perce nt of combat troo ps in Vietnam ; a nd nearly h alf the combat deaths.

The dr af t discriminated against the poor, minorities, and the un educate d. Only 

seven perce nt of those eligible were ever called to activ e duty. We w ere a natio n 

of dr aft dodgers—legally deferre d. Those with money an d position could receive 

medical deferm ents from sym path etic doctors. “Legal” dodges were widespread 

and bl at an t Joe N amath wes ex empt because of a “trick knee” and actor George
480

Hamilton was exempt because he was the “sole support of his mother.” Millions 

of young men escaped through educational deferments not available to poorer 

youths.

Conscientious objection was not an alternativ e for a great many registers. A 

CO must be opposed to all wars, not jus t the Indochina War. Up until 1970 one 

had to be p art of an orthodox or trad itional religion. The case of Welsh vs. U.S. 

determ ined this was not essential—too late for thousands of war resisters. Many 

would-be CO’s were turned down by draft hoards which identified patrio tism 

with carryin g a gun. One applicant was told by his draft board. “We’ve never 

gran ted a CO since we’ve been in operation and we’re not going to start with you.” 

Dr aft counselors report th at such a rbitrary and capricious judgments were in fact 

very common.

Soon dissent against the Selective Service System moved to resistance. David 

Miller w’as the first person prosecuted for draft card burning. In 1965 Congress 

prosecuted at first but stopped when draft card burn ing became commonplace. 

More and more young men, when called up for induction, refused to take the 

symbolic step; in some localities only a fraction of those drafted reported for 

induction. The number of young men who upon becoming 18 deliberately failed to 

register for the draft is unknown and adds a large uncertainty to estim ates of 

the number of people eligible for amnesty.

No dr aft can be fair—a fact admitted to by General Ilershey when he was 

Selective Service Director. A discussion of amnesty for Selective Service violators 

cannot be fair without a thorough study of the Selective Service System and 

its inequities.

Mr. Kastenmeier. Our next witness is Mr. Polling on behalf of the 

Church of the Brethren.

TESTIMONY OF JAMES N. POLING ON BEHALF OF THE CHURCH OF

THE BRETHREN GENERAL BOARD, ACCOMPANIED BY RALPH E.

SMETZER, CHURCH OF THE BRETHREN, AND WARREN HOOVER,

CHURCH OF THE BRETHREN

Mr. Poling. Thank you, Mr. Chairman. I am joined by two of my 

colleagues who are only here to help, if necessary, Mr. Ralph Smetzer, 

who works for the Church of the Brethren, and Mr. Warren Hoover, 

who is also a member of the Church of the Brethren.

T hope that you have copies of my testimony and I would like to 

summarize the testimony and answer any questions, if you have any.

Mr. Kastenmeier. Your testimony is quite brief. If you care to give 

it in its entirety, it will be quite acceptable.

Mr. P oling. Thank you, I will read certain paragraphs here, which 

I do think catch the meaning of the paper.

My name is James Poling from Thomasville, Pa. I am the pastor 

of the West York Church of the Brethren, which is a small church 

with about, 86 members.

Today I have been invited bv my denomination, the Church of the 

Brethren and its general board to represent the roughly 1,000 congregations that this board represents across the country.

The Church of the Brethren in its 1973 annual conference last June 

voted support for a full and unconditional amnesty for all our citizens 

suffering alienation and disadvantage because of acts of conscience 

related to participation in the war.

Our complete conference statement is attached and is a p art of our 

testimony.

I might add at this point also that the delegated body of our church 

is predominantly laymen and not clergy and that the vote was nearly 

90 percent in favor of the statement tha t is presented to you today.
481

The first section on amn esty for our m embers, we have had a number 

of members who have refu sed to coo perate with the Selective Service 

System and who have been convicted as felons. These and oth ers who 

have said no to military service in other ways have ha d the str ong 

and the official of our den omina tion and such position of ou r chu rch 

does go back to our founding over 250 years ago.

It is f or these members pa rti cu larly th at we ap pea l to you for a tot al 

and unc ondition al amn esty. Bu t our concern is not only or even 

espe cially for our own m embers.

As we have str uggle d with the wa r in So uth eas t Asia, we h ave become aware of many oth ers who have str ong and sincere convictions 

about wa r although pe rhaps com ing to th ei r positions from quite dif ­

ferent bac kgrounds than ours. We have lea rne d to have a deep and 

abiding respect for th ei r conscience and the belief. An d we believe 

that our Na tion is stron ger for th eir contr ibuti on as citizens.

And so for these persons especially we app eal to you for total and 

unc onditional amnesty.

As we un derst and amn esty—a nd I would say at this po int I am not 

a law yer or histo ria n—as we un derst and amn esty, it is a lega l pr ovision for res tor ing the rig hts of a grou p of pers ons wi tho ut necessar ily resolving the issue which caused the aliena tion or witho ut 

pla cin g blam e or decla rin g total innocence. It is a legal app roa ch, 

which is ap prop ria te when reco nciliation of persons and gro ups is a 

pre fer able political and moral alt erna tiv e to con tinued conflict and 

retributio n.

There for e, in order th at many pers ons m igh t have th eir full op po rtunit ies as citiz ens restored and in order th at ou r Nation migh t move 

tow ard un ity and reco nciliation in these tro ubled times, we urg e you 

to aut horize legisla tion th at gives a full and unc onditional amn esty 

to all who are alien ated from ou r Nation because of war.

Mr. Kastexmeier. Than k you f or you r sta tem ent.

Mr. P oling. I would like to add ju st a few statem ent s, if possible.

Mr. K astenmeier. Yes, all rig ht.

Mr. P oling. I think I have alr eady sub mitted for the record has 

been t his book called Religiou s S tatem ents on Am nesty w hich ha s been 

collected by the National Inter -R eligio us Serv ice Bo ard for conscientious objectors.

[The doc ument referre d to follows :]
482

r i Q . © t r I i C L © t r

 > © x
483

INTRODUCTI ON

The National In te rr eligio us Service Board fo r Conscientious Objectors is 

pleased to present th is compilation of o ffic ia l re lig io us statements on 

amnesty. To the best of our knowledge, a ll recent amnesty statements by 

national re lig io us groups are included.

Nearly a ll of these statements call fo r some form of unconditional amnesty . The reader w il l find expressions which vary in scope and in te n sity, 

such as: "c allin g fo r an act of re concili ation" or "supportin g men of 

good conscience" or "c allin g both the President and the Congress to ac t" 

as we ll as some ex ce lle nt suggestions fo r re lig io us groups on "p ro viding a supportive community fo r a ll persons".

The s p ir it of re concili ation pervades these statements. They also re ­

fl e c t a growing uneasiness with some of our nation's emphases in the recent past and an in dic ation that re lig io us communities are in te nt on 

loo kin g to the fu tu re and gra ppling with the present.

Our hope, in providing th is co mpilatio n, is th at people everywhere might 

be tte r understand the mo tivations of war objec tors and re sis te rs , the 

needs of stigmatized veterans and the significa nce of amnesty.

This booklet is pa rt of a larg er colle ction of information provided by 

NISBCO's Amnesty Inform ation Service and is included in the NISBCO Amnesty Education Packet. Prices fo r sing le copies of th is booklet - $.35 

(prepaid) and fo r the Packet - $1 (prepa id). Contact NISBCO fo r special 

rates on bulk ord ers , (see back of booklet fo r address)

Warren W. Hoover James E. Tomlonson

Executive Dire ctor

January 1974

Editor
484

TABLE OF CONTENTS

American Bap tis t - 1969 .................................................................... 1

American Ethica l Union - 1972 ........................................................ 1

American Friends Service Committee - 1973 ................................. 2

C hrist ia n Church (D isciples of C hrist) - 1973 ......................... 4

C hristian Reformed Church - 1973 .................................................. 6

Church of the Brethre n - 1973 ........................................................ 7

Cle rgy and Laity Concerned - 1973 ................................................ 9

Ecumenical Witness - 1972 ................................................................ 10

Episcopal (House of Bishops) - 1973 ............................................ 10

Fellowship of Reco ncilia tio n - 1973 ............................................. 11

Friends Committee on National Legis la tion - 1972 ................... 12

In te rr e lig io u s Conference on Amnesty - 1972 ............................. 12

Jewish

American Jew ish Congress - 1972 .............................................. 14

National Feder atio n o f Temple Siste rhoo ds - 1973 .............. 15

Union o f Hebrew Congregations - 1973 ..................................... 15

Lutheran

Lutheran Council in the U. S. A.

- 1972 ............ 16

Mennonite

Old Mennonite Church and the Peace Se ction o f the

Mennonite Central Committee - 1973 . . . . 17

National Council o f Churches of C hrist in U. S. A. - 1972 .. 19

National In te rr e lig io u s Service Board fo r

Conscientious Ob jectors - 1972 .............. 22

Roman Catho lic

National Conference o f Catho lic Bishops - 1972 .................. 22

Conference o f Major Sup eriors o f Men U. S. A. - 1973 . . . . 24

Southern C hristian Leadership Conference - 1973 ..................... 25

U nita rian U niv ers alist As so cia tio n - 1973 ................................. 26

United Church o f C hrist - 1971 ...................................................... 27

United Methodist Church - 1972 ...................................................... 27

United Presbyterian Church in the U. S. A. - 1973 ................. 29
485

RELIGIOUS ST AT EM EN TS

ON A MNE ST Y

AMERICAN BAPTIST

Amnesty

Just as we respect the convictions of those young men who have fe lt tha t it 

was their duty to comply with the draft laws of our country by entering military 

service, so we also respect those young men who, during recent years, have resisted the dr af t because of their sincere conviction that participation in the Vie tnamese war would constitute a violation of their consciences. We deeply sympathize with the families of those young men who have died in the performance of 

the ir military duties and we sympathize with those young men and the ir families 

who have become alienated from the ir government through their protest against 

the war. We honor those men who have sacrificed their future by death on the 

battlefield and we respect those who have risked their future by conscientious acts 

of non-conformity. Therefore, consistent with our concept of freedom and conscience, and recognizing that many of our ancestors came to this country to avoid 

conscription in Europe, we call upon the President of the U.S. to gra nt amnesty 

upon the cessation of hostilities or upon major reduction of American forces for 

all persons who are either in jail or outside the country due to the ir acts of conscience against the war in Vietnam and the Selective Service System.

American Baptist General Convention, "Resolution on Conscience, Freedom, and

Responsibility", 1969.

AMERICAN ETHIC AL UNION

Amnesty

Whereas, a great number of our best young people suffer imprisonment or 

exile, following their strong convictions to refuse to serve in an immoral war waged 

by the United States in Southeast Asia; and

Whereas, it is widely recognized by the people of the United States that this 

war was a mistake; and

Whereas, we admire and respect those young people who refuse to submit.

Therefore, be it resolved, tha t the American Ethical Union petition the President of the United States to grant a full and unconditional amnesty to all those in 

prison, living abroad, or in hiding in their own country because of moral convictions 

which force them to refuse service in the armed forces.

- 1 -
486

Repatriation and Restoration to Citizenship of War Resisters Abroa d

Whereas, many draft resisters now living abroad have acted out of revulsion 

to war which by now is wid ely recognized as unjust or immoral, or at least a governmental action which was a grave mistake; and

Whereas, many draft resisters abroad have not broken any law, as they 

have emigrated to countries with whom the United States maintains frie ndly relations and have renounced United States citizenship before having become ob ligated to service in the armed forces of the United States; and

Whereas, most resisters abroa d have suffered hardships of separation from 

their families, lack of employment, and other difficulties;

Therefore, be it resolved, that the repatriation of those resisters abroad who 

have not broken any law of the United States as they have not become obligated 

to service in the armed forces should be fac ilita ted by the requisite legislative or 

administrative action for repatriation and restoration of citizenship.

64th Annua l America Ethical Union Assembly, March 7, 1972, Cleveland, Ohio.

AMERICAN FRIENDS SERVICE COMMITTEE

The people of the United States have before them the question of amnesty for 

those who violated civil or m ilitary law in the course of active opposition to the 

war in Indochina, or in the course of removing themselves fro m partic ipa tion in or 

sup port of that war.

The American Friends Service Com mittee urges the United States Government 

to declare an amnesty for all these persons.

The American Friends Service Committee is opposed to all war and all conscriptio n because of our religious faith. We are opposed to particip ation in war, preparation fo r war and civilian sup port of war. We are opposed to civil war, international war, foreign wars, wars in this co untry, wars o f defense, wars of aggression, 

popular wars and u npopular wars.

Starting from tha t position, we iden tify with those fo r whom we are asking 

amnesty. We do this even while rejecting methods, such as evasion and violence, 

used by some. We believe in confrontation with evil, not evasion, and in nonvio len t direct action against evil, no t violence. These moral judgements we make 

fo r ourselves, not for others.

In one sense, those in need of amnesty are accidental victims. In fairness, they 

should share the good fortune of all those who missed the draf t through the 

lotte ry, deferments, etc. Others have already received their "am nesty” through 

the dropping of many cases of military charges and of criminal charges before 

civilia n courts.

Amnesty does not involve making case-by-case moral, political or pragmatic 

judgements. Amnesty is no t an ex post facto stamp of approval on a class of 

offenses form erly seen as illegal or anti-social. A declaration of amnesty is a

- 2 -
487

po litical act which, like many political acts, may be inspired by a great many 

diffe rent m otiv ations and judgements.

Amnesty does not mean forgiveness, nor is forgiveness being sought. Amnesty 

comes from a Greek word meaning forgetfulness and a French word meaning 

forgotten. Amnesty means forgettin g a broad classification of offenses, being in a 

state o f amnesia insofar as certain events are concerned.

Afte r World War II, so-called amnesty was granted to on ly 1,500 of appro ximately 15,000 whose conscience had led them to break the Selective Service law. 

The fac t that the ir objections were religiously bassd, serves to underscore the 

con tinu ed preferential treatm ent granted religious objectors. We reject this special 

privilege fo r lim ited kinds of objection . Although the AFSC fir m ly believes these 

men should have amnesty, we consider it inappropriate to make a special plea fo r 

these persons.

There are others with much greater need, with tradition s quite diffe rent than 

ours, many of whom have no objection to war in general bu t came to have pro ­

fou nd objections to the Indochina War. Many of these men left this coun try to 

avoid Selective Service o r to separate themselves fro m the armed forces. Many of 

them w ould like to return. They and their families are torn by separation, financial 

difficu lties , fear and many other problems resulting fro m having left the country 

under these circumstances. Others live in this coun try , some in apprehension 

underground, some in prison, some with prison terms completed, but carrying 

permanent legal disabilities as a result.

The misery in the lives of these people should no t be used as a political footba ll. 

Insofar as the amnesty issue is concerned, let us put behind us the controversies o f 

the war in Indochina. Amnesty is neither a justificatio n of the legal offenses 

comm itte d, nor a judgement on the war giving rise to those offenses.

The uncontested fact is that the war in Indochina has torn the fab ric of Am erican society as no other war has done since our own Civil War, now more than 

100 years behind us. Ou t of that war came Lin coln's great call fo r reconciliation, 

"w ith malice to ward none."

In the sp irit of such reconciliation, let us begin t o heal the wounds of this war, 

even while we recognize tha t we are still a long way from peace in Indochina. As a 

simple act of mercy which will help thousands o f persons to reclaim their rig htful 

role as American citizens, there must be an amnesty. As one small step of many 

needed to get on with the building of peace, let there be an official forgettin g of 

offenses grow ing ou t of opposition to, or personal withdraw al from, the war in 

Indochina.

Approved by American Friends Service Committee Board of Directors: Ap ril, 1973.

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CHRISTIAN CHURCH (Disciples o f Christ)

Resolution on Reconciling the Nation through a Grant of Amnesty (Abridged) 

Intro du ction : As the Indochina war, the longest in our his tory, appears to be

drawing to a close, the people of the United States already are involved in healing 

acts of assistance. To those who fought for our country, pensions, medical care, 

employment and educational assistance have been made available. Presidents 

Johnson and Nixon have proposed multi-million dollar relief and reh abilita tion 

programs for both friend and foe among the nations of Indochina.

The people of the United States also have commenced consideration of an 

appropriate healing minis try to those young men who fo r conscientious reasons 

dissented with our national policy and are or may be in legal jeopardy for vio lation 

of civil or military law. Since acts o f conscience are fre quently inspired by a man's 

religious faith , it was to be expected tha t the religious community would assume 

leadership in petitioning the President and Congress for a General Amnesty for the 

approximately 10,000 men who have been prosecuted for draft violations, the 

60,000 exiles in foreign countries and the 300,000 Vietnam Era veterans who 

have received less-than-honorable discharges.

A Proposal by the General Board: As a result of the Interreligious Conference 

on Amnesty, held in Washington, D.C., March, 1972, the General Minister and 

President, in cooperation with the department of church in society of the division 

of homeland ministries, prepared a draft report and resolution fo r the General 

Board of the Christian Church (Disciples of Christ), meeting at St. Louis, Missouri, 

June 1972. The General Board considered the report and the proposed resolution 

and then declared tha t it:

1. Endorses the prin ciple of an act o f Amnesty at the conclusion of the war in 

Indochina.

2. Urges congregations, regions and general manifestations of the church to 

engage in a program of education related to the moral issues of Amnesty during 

the year preceding action by the General Assembly in Cincinnati, Ohio, including 

a study of various con ditions that might be proposed in connection with an act 

of Amnesty.

3. Requests the General Minister and President to w ork with appropriate units 

of the church so tha t:

a. government officia ls will be apprised of the views of the General Board 

concerning Amnesty;

b. assistance may be given congregations, regions, general units and related 

ins titu tions of the church in developing a program of education concerning 

Amnesty;

c. an updated resolution of Amnesty will be presented to the General 

Assembly in 1973.

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A Recommendation by the Division of Homeland Ministries (1973): The division of homeland ministries, having reviewed the pros and cons concerning pardon 

and amnesty, feels tha t a General Amnesty fo r all men in legal jeopardy due to 

violations of civil and military law is most consistent with the Gospel of Jesus 

Christ, the Prince of Peace, whose central message of love and reconc iliation 

embraced all men regardless of condition . Amnesty is the "blessed act o f ob liv ion" 

of which Winston Ch urchill speaks, it is the magnanimous gesture of Abraham 

Lincoln's "w ith malice toward none. . . .charity for all" and most importa nt, it is 

the act of secure and religious people who are strong enough to perform the 

loving and healing acts of reconciliation w hich our nation and the wo rld requires.

The division has considered the various alternatives to Amnesty and finds them 

either unwise or punitive. The suggestion that those g uilty of viola tions of civil or 

military law perform fro m two to three years of national service is retribu tive and 

unrealistic. It ignores the reality of a situation wherein these men of conscience 

feel they already have served and suffered and that as dissenters to an immoral 

war it is they, not we, who should do the forgiving. It is not the purpose of the 

division in this statement to evaluate w ho has the pre-eminent role of forgiv er and 

forgiven, but simply to recognize tha t a punitive gesture would be no more 

acceptable to men of conscience in time of peace than it was in time of war.

In the same manner, individual pardons fail as a method of achieving an act of 

reconc iliation that is consistent with the Gospel o f Jesus Christ. Individual pardons 

granted or denied by a Presidential Board must deal w ith the question of intention 

and sincerity of those charged. This division and all other church agencies who 

have counselled conscientious objectors during the war know tha t the evaluation 

of inte ntio ns and sincerity is a difficult and elusive task. Even dedicated persons 

laboring in the 4,000 local draf t boards of this country have produced an ambiguous hodgepodge of decisions. Sincerity is in the eye of the beholder. No acceptable and objective general criteria are available. For example, the Presidential 

Pardon Board following World War II fou nd itself enmeshed in the test of sincerity 

and in the end left its wo rk unfinished after granting pardons to o nly ten percent 

of the 15,000 men in legal jeopardy. It is fo r this reason, therefore, tha t the division recommends a General Amnesty as the only wise, realistic and humane 

method of reco nciling the nation so wrought by division while the war was in 

progress.

Therefore be it Resolved, that the General Assembly of the Christian Church 

(Disciples of Christ), meeting in Cincinnati, Ohio, October, 1973 approves the 

prin ciple of Amnesty for conscientious dissenters to the Indochina war as con ­

sistent with the teachings of Jesus Christ and furth er declares tha t such an act is 

most likely to achieve our national goal of reco nciling the nation and binding up 

its wounds once the war is concluded;

Bert Further Resolved, th at the President of the United States and the Congress 

be urged "to declare amnesty fo r all persons in legal jeopardy and for acts of nonviolen t resistance to civil or military law because of opposition or forced pa rticipation in the Indochina war, except those convicted of acts of violence and even 

here we recommend that these cases be reviewed on an in dividual basis."

Be it Further Resolved, tha t we ask the General Minister and President of the 

Christian Church (Disciples of Christ) to communicate this resolution to the 

President of the United States and relevant Congressional Committees, and urge 

the division of homeland ministries to develop a program of education and action 

to involve our congregations in an ecumenical ef fo rt to secure Amne sty.

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490

Appro ved by the General Assembly o f the Christian Church (Disciples o f Christ)

meeting in Cincinnati, Ohio, October 1973.

CHRISTIAN REFORMED CHURCH

In facing the question of conscientious objectors, the Synod of the Christian 

Reformed Church in 1973 made the fo llowing decisions:

1. To urge pastors, consistories, and its church membership to fulfill the ir du ty 

to extend Christian love and concern to all who have been directly or 

ind irectly punished for resisting the Vietnam Co nflict because of conscience 

which has been info rmed by Scripture.

2. To send once again our 1939 and 1963 decisions regarding the Christian 

attitu de toward war and peace to the President and each member of Congress 

with the following statement:

In 1969 we sent to you our T ESTIM ON Y REGARDING THE CH RISTIAN 'S 

AT TITU DE TOWARD WAR AND PEACE, a docum ent adopted by our 

denomination in 1939 and reaffirmed in 1969. With that document we also 

sent to you decisions that were made by our denomination in 1969. Those 

documents still represent the position of our denomination.

Based on this position and in respect for individual conscience, in the interest 

of national reconciliation and in the name of Christian love and justice we urge 

the President of the United States and Congress to grant, at the earliest opportu nity , amnesty fo r those who by reason of their Christian conscientious objectio n to the Vietnam Con flict are in exile, at large, incarcerated, or deprived 

of the fu ll rights of citizenship. The request fo r amnesty fo r such men does not 

make a judgment on the justness or unjustness of war; it does support the man 

who in good conscience could no t bear arms in the Vietnam Co nflict. This request 

does no t dishonor, but respects the consciences o f those w ho fought and died. 

Grounds:

a. Although synod has never declared a specific war to be just or unjust, it has 

consistently supported the man who could not in good conscience before 

God bear arms in a given war. "B oth Scripture and our Confessions place a 

restriction upon our d uty to obey the government. Peter at one time refused 

to obey the civil authorities and appealed to a higher loyalty to God in 

doing so. And our Creed restricts the du ty of the citizen to the State to 'all 

things which are no t repugnant to the Word of God.' From this it is clear 

that the Church must no t only recognize the right of Christians but even 

the ir du ty under certain de finite circumstances to refuse obedience to the 

civil magistrate." (Acts o f Synod, 1939, p. 246)

"The only conscientious objector to military service whose claim the Church 

cannot repudiate is he who, recognizing his du ty to obey his government 

and to defend his coun try in response to its call to arms, has inte lligent and 

adequate grounds to be convinced tha t the given war to which he is summoned is an unjust war.

When he is absolutely certain in the light of the principle o f the Word of God 

that his country is figh ting for a wrong cause, he cannot morally justify his

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491

partic ipa tion in the given war. War is k illing people and for anyone to engage 

in such killing of fellowmen when he is convinced in his heart that the cause 

fo r which he is fighting is an unjust one, this procedure cannot be justified 

before the trib unal of God and His W ord. The on ly course open to such a 

person is to resort to passive resistance and to refuse to bear arms in tha t 

given war.

In closing, synod would urge upon all to pray fo r righteousness and peace in 

national and inte rnational affairs; to study the revealed Word fo r an understanding of the will of God fo r the guidance of the life o f citizens and their 

governments; to obey all lawfully constituted authorities fo r God's sake; and, 

it a serious co nf lic t of du ty should occur, to obey God rather than man.” 

(Acts o f Synod, 1939, p. 249)

b. A request to declare amnesty fo r conscientious objectors to the Vietnam 

Con flic t is a concrete action which implements the words of synodical decisions especially the 1969 decision urging us to ". . . .extend Christian love 

and concern to all the draft eligible including those who struggle with the 

decision regarding selective conscientious objection and its consequences." 

(Acts o f Synod, 1969, p. 99)

c. Such a statement also implements our respon sibility as a denominatio n to 

speak the Word of God as we perceive it to those in au thority over us, a 

respon sibility clearly recognized by the 1969 Synod which sent our decisions 

to Washington.

Decision made b y the Synod o f the C hristian Reform ed Church in 1973.

CHURCH OF THE BRETHREN

There are thousands of persons today who have f elt the effects of the div iding

wall o f ho st ility which has been generated by war. Social relationships in the 

family and between families have been damaged because persons have had d ifferen t 

beliefs and con victions about war. Even after the war has been declared over, there 

remain divisions which cause suffering for persons and groups in o ur society.

The Church of the Brethren regards this situation with concern and sorrow 

not on ly because we believe that war is sin, but also because we understand tha t 

the gospel message can bridge the walls of ho stilit y which exist, between exiles, 

families, and government.

A t its roo t, the concept of amnesty had to do with the biblical understanding 

of reconciliation. How can there be reconciliation between parents and children 

in the United States? How can there be reconciliation between the government 

and exiles? How can there be reconciliation between those w ith diffe rent opinions 

on war? How can we restore the un ity of our nation wh ile maintaining integrity 

both for the coun try and its people?

We, the members of the Church of the Brethren, believe that reconciliation is 

most lik ely if the following things occu r:

(1) The United States Government should grant uncon ditional amnesty to all 

those who are alienated from their nation because o f the ir personal acts of con ­

science in relation to war.

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492

(2) Christians, both individu ally and as denominations, should become agents 

of reconciliation wherever such service is needed.

In the New Testament, the theme of reconciliation is central to the understanding of God's love for persons in Jesus Christ. The gospel calls us to a m inis try 

of reco nciliation.

First, according to Ephesians 2:14 ff, reconciliation is a gi ft of God. For he is

ou r peace, who has made us both one, and has broken down the dividin g wall o f

ho stility. . . .Through God's action in Jesus Christ, there is reconciliation between 

people while there are differences (John 10:16; Galatians 3:2 8). Even though the 

disagreements on many issues separate people with in our nation, there can be 

reconciliation if we accept it as God's gift.

A declaration of amnesty follow s this model. Through amnesty, a government 

can forget the legal penalties connected with the actions of a group of persons, 

and thereby declare tha t the un ity o f its people is more impo rta nt than continued 

ho stility and division. Amnesty can bring reconc iliation even though significant 

differences remain on the issues at stake, because such an action removes the 

punitive measures related to such differences. Reconciliation is a g ift of God and 

he will bring peace if we tru st him (Psalm 118:8-9).

Second, according to II Corinthians 5:18, the church is called to be an agent 

of reconciliation. (A ll this is from God who through Christ reconciled us to him ­

self and gave us the ministry o f rec onciliation.) The Church of the Brethren has 

always taken this Scripture seriously and we have set ou t to be reconcilers. As 

Christ was the mediator between sinners and God, so the Church is called to a 

ministry of reconciliation between persons and God and between people in 

co nflict w ith one another.

Whatever the government does about amnesty, there will be need fo r reconciliation. Many men have become alienated from the ir families and local com ­

munities and now want to be reunited. Many young people could return home 

now with ou t legal diffic ulties, and may if they have a supportive comm unity. 

Some may decide to return and face the legal penalties rather than remain as 

exiles. On many levels there is work of reco nciliation which cou ld be done by the 

Church. The Scriptures lead us to such a m inis try.

Throughout its his tory, the Church of the Brethren has taken seriously the 

task of bringing persons together. During the Revolutio nary War the Brethren 

refused to side w ith either army, but w orked to bring peace in their communities. 

It was Elder John Kline in the War between the States who tirelessly rode the 

circuit of reconc iliation to keep persons as one in faithfulness to Christ. During 

and following World War II, Brethren too k in and aided Japanese-American 

refugees. The present situation presents the Brethren another op po rtu nity to be 

involved in healing the wounds of war and to be fa ith fu l to the ministry of 

reconciliation.

The question of amnesty is being debated in the press, discussed on radio and 

television, and kept much alive in our nation's capital. Several amnesty bills and 

resolutions have been introduced since the present session of Congress began.

In any discussion of amnesty, we are talking about hundreds and thousands 

who have suffered some legal dis ability because of war. For instance, tens of 

thousands of these persons have come ou t o f the m ilitary service in the Indochina 

War w ith less than honorable discharges, have been convicted of Selective Service 

violations or have become exiles, fo r conscience sake.

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493

Therefore, we come to these conclusions on the question of amnesty:

(1) As United States citizens, we believe tha t reconciliation is more important 

fo r our natio n than the punitive wrath of the law. We favor unconditional amnesty 

fo r all those who due to an act of conscience are alienated because o f war. We 

recommend the officers of Annual Conference make these views kno wn to the 

President and appropriate persons in Congress.

(2) As Christians we believe that our ministry of reconciliation begins now. 

Whatever the governm ent does, we must begin w orkin g now to bring reconc iliation 

between those who have become separated because of the ir views on war. We 

recommend the following action:

(a) We recommend that our members and local congregations provide a 

supportive community fo r all persons who desire reconciliation w ith their government, families, and/or local communities. This might involve such activities as 

providing a context in which persons can talk with their parents or children, 

providing a home fo r those who need a place to live w hile becoming reestablished in a com munity, helping men who choose to face a prison experience.

(b) We recommend our General Board provide program and resources to 

help members and local congregations be agents of reconciliation fo r persons 

alienated fro m the ir government, their families and/or their local communities. 

This mig ht involve com munication with and sup port of exiles and deserters in 

various parts of the wo rld, pu blicity on our services, and education of local 

congregations.

We pray that reconciliation can become a rea lity and that our nation can 

become unified around purposes which reflect the will of God in our time. 

Ad op ted by the Church o f the Brethren An nu al Conference, June 1973.

CL ER GY AND LA IT Y CONC ERNE D

For all those whose opposition to the war in Indochina brought them into 

co nf lic t with the laws of the Government, we ask amnesty. We call upon the 

Congress to enact amnesty in its legislative au thority to determine what is the law. 

We call upon the President to declare amnesty by his executive a utho rity.

Amnesty is n ot pardon. In judicia l tra ditio n, amnesty forgets or blots ou t the 

offense fo r the sake of reconciliation and a new beginning. Let us remember in 

proclaiming amnesty we affirm our trad ition of defense of conscience, the du ty of 

individuals to judge fo r themselves w hat is rig ht in the face of con flic tin g duties, 

and the fou ndation of our society on higher moral law.

This war has brought no heroes but on ly victims. Therefore, let us not be 

vin dictive toward one group to assuage the sufferings of others. While we are 

making peace with our enemies, let us be reconciled among ourselves.

We may be bro ught together again if redress is provided fo r those who had to 

face jail or exile fo r their convictions. Let all those who are convicted be set free 

and all those facing prosecution or who mig ht be prosecuted be immunized from 

furth er jeopardy and all records be wiped clean. For all deserters, dr aft violators, 

and those accused of civilian acts of resistence, let there be a new beginning.

Let us amnesty also all those who, because of the war, were bro ught into 

extenuating circumstances in which they breached civilian or military regulations

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494

or were denied the full protection s of due process. For the ha lf-million veterans 

who are now being punished for life by other-than-honorable discharges, let their 

records be corrected to make them eligible for benefits tha t would fac ilitate a 

more hopeful future .

Religious tra ditio n teaches that "y ou should no t hate your bro the r in your 

heart, but you shall reason with your neighbor, lest you hear sin because of him. 

You shall not take vengeance or bear any grudges against the sons o f your own 

people. . . ."

We cannot restore to life our dead soldiers, nor undo the hurts and wounds of 

others. We cannot undo the devastation o f the lands and people of Indochina. We 

can repent and wo rk fo r post-war healing. An unconditional amnesty would free 

us for a responsible and serious ef fo rt to rebuild our divided people.

Issued by Clergy and La ity Concerned, New York, May, 1973.

THE ECU MENICAL WITNESS

The religious community of the United States, as represented by the Ecumenical Witness, aware tha t the War in Indochina must be brought to an immediate 

end, urges the implementation thereupon of a broad, general and plenary amnesty, without any qualifications or conditions, to all those men and women who 

have been prosecuted or will face possible prosecution by civilian or military 

courts for any alleged offenses arising out of the war, as well as the meeting of 

our social responsibility to those who might refuse amnesty, to the civilian members 

of the resistance, and to those who have served in the military. We urge this amnesty in order to overcome the paralyzing divisiveness of the W ar on our society 

and in order to mitigate as far as possible the tra gic consequences of the War 

upon tha t generation tha t has been called upon to bear the heaviest existential 

burden of this war.

We believe that amnesty will be one step tow ard the reconciliation of the 

society, but we do not believe that amnesty itself will constitute atonement of the 

society's responsibility for the War nor will it be in the nature of forgiveness for 

any offenses, but rather an effo rt to give ourselves the benefit of moral courage 

and idealism to the men and women of the young generation. We call upon the 

religious community further to cooperate with other groups in the society by pursuing this objective and to implement this commitment by appro priate educational 

and other supportive action within their own constituencies.

An Ecu menical Witness, Ja nu ary 13-16, 1972, Kansas City, Missouri.

EPISCOPAL CHURCH — House of Bishops

Whereas, American society must proceed to heal the wounds at home and 

abroad caused by the War in Indochina and to reconcile all people in peace; and

Whereas, the national disunity brought about by the War in Indochina has

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495

caused some in this nation to scorn the conscientious acts of those who resisted 

the call to bear arms, and others to be litt le the sacrifice of those w ho accepted the 

call of m ilitary service; and

Whereas, as Christians we are called to w ork fo r rec onciliation among all people; 

now, therefore be it

Resolved, the House o f Deputies concurring , this 64th General Convention of 

the Episcopal Church calls upon the people of the Church to w ork to insure that 

the government of the United States grant to Vietnam veterans every benefit that 

it has given to veterans o f past wars; and be it fu rth er

Resolved, the House of Deputies concurring th at general amnesty be granted to 

all who have refused to particip ate in the co nflict in Indochina; and be it fu rth er

Resolved, the House of Deputies concurring tha t this Convention calls upon 

dioceses and parishes of this Church to include in their Christian education and 

social concerns programs a serious consideration of the question of amnesty and 

the needs of returnin g veterans.

Resolution Passed by The House o f Bishops o f the Protestant Episcopal Church o f

the Un ited States in Louisville, Ke ntucky September 29th thru October 11, 1973.

(This Resolution failed to pass the House o f Deputies )

FELLOWSHIP OF RECONC ILIA TION

Whereas there are many thousands of Americans in this country or overseas 

who have resisted the war effort or otherwise refused participation in the dr aft or 

military service in the war in Indochina, or in earlier wars, or who have engaged 

in other acts of resistance to war, and have therefore been convicted of or are 

subject to prosecution for offenses against the government; and

Whereas their offense is political, not involving violence against persons, 

and is unlikely to be repeated because it relates to a war tha t is past; and

Whereas many of these persons are on prin ciple opposed to violence and 

will encourage respect for both persons and for nonviolent processes of change; 

and

Whereas it is desirable to heal the divisions of wa r and end the alienation 

of citizens from their government;

Therefore, be it resolved that those who face or have suffered criminal or 

administrative penalties for acts o f evasion or of resistance to the draf t or military 

service or war, involving violations of laws and regulations, including the Selective 

Service Law and the Uniform Code of Military Justice, prior to the actual ending 

of the wa r in Vietnam should be granted a full, broad and unconditional amnesty.

Executive Committee of the Fellowship of Reconcilation, February 12, 1973,

Nyack, New York.

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496

FRIENDS COMMITTEE ON NATIONAL LEGISLATION

Friends have long realized the wounds of wa r are sustained by both combatants and non-combatants. A nation suffers because of the moral burden wa rfare thrusts on the individual and his conscience. The moral and religious dilemmas posed by war and conscription result in an addition al casualty list.

The war in Indochina is increasingly recognized by Americans as immoral, 

ille ga l and unjust, carried on in violation of the United Nations Charter and the 

United States Constitution. Our first priority remains to stop the killing in Indochina.

The Nurem berg principles, supported by the United States, the USSR, France 

and Gre at Britian and subsequently approved by the United Nations, emphasize 

tha t final responsibility for participation in morally reprehensible acts against 

humanity rests with the individual.

We believe most persons who have refused to participate in military service 

or have opposed conscription during the course o f the wa r in Indochina have done 

so on the ground that they were conscientiously opposed to the war or wartime 

military service. However, proof of conscience is inherently difficult, and exp erience has proved that efforts to judge conscientiousness have been marked all too 

often by refusals to recognize sincere beliefs. We therefore urge that all persons 

who have refused military service or conscription should not be punished for such 

refusal, whether it took place before, during, or after military service.

We urge the President and Congress, in a spirit of reconciliation, to join in 

a full and unconditional amnesty for those who are deemed to have violated U.S. 

laws in this regard. Thus, the government should: (1) permit the return of those 

now outside the United States, either to stay or to visit; (2) provide for prompt 

release of all currently held in civilian or military prisons; (3) drop pending and 

potential prosecutions; and (4) restore civil rights to all who have completed prison 

terms or otherwise lost such rights due to their opposition to the war.

General Committee of the Friends Committee on Na tional Legislation,

February 21, 1972, Washington, DC.

INTE RRELIGIOUS CO NFERENCE ON AMNESTY

Amnesty: A Statement to the Religious Community of America

Passover is the time when Jews remember the mercy of God, who brought 

his people out of bondage, and who ever since then has upheld, forgiven and restored them countless times. Holy Week is the time when Christians remember 

that Jesus wept over Jerusalem saying, "W ould that even now you knew the things 

that make for peace."

We have met here in Washington to discuss how as Americans we can make 

peace one with another once this terrible war is over.

Since President Nixon took office, three million Indochinese have been killed, 

maimed, or rendered homeless. Since the war began over 55,000 Americans have 

been killed, 350,000 have been wounded, over 75,000 are in exile, over 350,000

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497

have deserted from the military, more than 10,000 have been prosecuted for draft 

violations, and over 300,000 Vietnam era veterans have less than honorable discharges. Social reforms are still being set aside because of the demands of the 

war machine. Spiritual dislocations, though harder to articula te, are deeply felt 

by all. Clearly, then, there can be no honest peace among us until we fin ally and 

totally end all involvement, military and fina ncial, in the Indochinese war.

We call once again upon the Adm inistration to withdraw immediately all 

troops from Indochina, including all air and naval forces; to end conscription as 

a method of raising a military force; and to make America's wealth ava ilable for 

the rebuilding of the nations of Indochina.

At home we need to meet our obligations to the men who have fought the 

war, to those who were killed, and to the Vietnam era veterans. The families of 

those killed, especially the children, deserve every assistance that a compassionate 

society can provide. The veteran similarly requires our help. One qua rter of the 

5.3 million veterans of the Vietnam era do not have a high school education. Of 

these, only 12 per cent have used the Gl Bill for any purpose. The unemployment 

rate for black veterans in the eighteen through twenty-four age bracket is 21 per 

cent. At leost 60,000 Vietnam era veterans are addicted to heroin. Many others 

report spiritual and emotional crises because of their war time experience. The 

Gl Bill for education has the lowest benefits in history. Many employers ignore 

and actually discriminate against the veteran. Few educational institutions manifest significant interest in the veteran. Governmental and private remedies lack 

the imagination and funding necessary to respond to the addicted veteran.

Finally, it is not too early to give thought to what must happen when the 

war ends. Various kinds of amnesties are presently being proposed by both opponents and supporters of the war, because both recognize that the w ar has caused 

a crisis of conscience perhaps unparalleled in this nation's history. We believe tha t 

genuine reconciliation demands that a general amnesty be granted to all who are 

in legal jeopardy because of the wa r in Southeast Asia. The only exception we 

countenance is for those who have been convicted of violence against persons; 

and even these should have their cases reviewed individually.

Such a general amnesty would include:

(a) draft resisters and deserters who have exiled themselves to other countries or who surrendered their citizenship;

(b) those currently in prison or military stockades, those on pro bation , those 

who have already served their sentences, and those who face or are subject to 

prosecution for draft or military law violations;

(c) draft resisters and deserters who have gone underground to avoid pro ­

secution;

(d) Vietnam era veterans with less than honorable discharges;

(e) those who have committed or are being prosecuted for civilian acts of 

resistance to the war.

In support of such a broad and unconditional amnesty certain considerations 

appear to us as crucial.

God alone knows what fin ally determines the actions of men, and all of us 

know tha t few of us do anything for one reason alone. Therefore, we feel it unwise to attempt to judge the motives of those to be given amnesty, just as we do 

not presume to judge the motives of those who served in the military. Nor do we 

feel, as do some, that draft evaders and deserters deserve differe nt treatment. We

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498

feel that no one should be penalized simply because his eyes were opened after 

entering the military service. The essential difference between the dr af t evader 

and the deserter is only a matter of timing.

As things of God cannot be rendered to Caesar, no one can surrender his 

conscience to the state. For centuries religious bodies have affirmed an individu al's 

moral right to refuse participation in a particu lar war in which the claims of his 

government and those of his conscience conflict. Yet despite insistent pleadings, 

Congress has steadfastly refused to provide for "Selective Conscientious Objectio n." This failure has been a major reason for the moral crisis of tens of thousands 

who saw themselves with no choice but exile or prison. Amnesty would be a belated recognition of a righ t they should never have been denied.

Often, the Armed Forces uses the less than honorable discharge as a means 

of getting rid of those they consider "un desirable." These too, are victims of the 

wa r and should not be scarred for life.

In summary, we see amnesty, not as a matter of forgiveness, but as a "blessed act of oblivion ," the law's own way of undoing what the law itself has done.

Amnesty would demonstrate that America is still capable of a communal 

moral act. It would be bitterly ironic were we to make peace with the peoples of 

China and Southeast Asia but persist in vindictiveness tow ard those of the young 

generation who refused to share in the brutalities of the war.

By seeking amnesty we do not dishonor the consciences or the acts of those 

who fought and died. Our hope is that by abstaining from all punitive acts, against 

those who prosecuted this war and against those who refused to participate in it, 

we shall affirm a spirit of humanity that will stand the nation in good stead as it 

makes peace with itself and with the world.

Interreligious Conference on Amnesty, Passover and Holy Week 1972, Washington, D.C.

JEWISH

AMERICA N JEWISH CONGRESS

One of the most grievous wounds inflicted on the United States by the Vie tnam War is the deep division it has caused among Americans. Thousands of young 

Americans have resisted serving in the Armed Forces, and countless others are 

living outside of their country because conscience does not perm it them to serve 

in an armed conflict which they believe to be wrong.

The nation is giving increased attention to bind ing up the wounds caused in our 

society by the Vietnam War. Historically, this has been done by the granting of 

amnesty.

We urge that, in accordance with this historical tradition , amnesty be extended at the end of hostilities to all those who were compelled by their conscience to 

refuse to participate in the Vietnam War.

Biennial Convention of the American Jewish Congress, Ma y 10-14, 1972,

Cleveland, Ohio.

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499

NATIONAL FEDERATIO N OF TEMPLE SISTERHOODS

The National Federation of Temple Sisterhoods expresses its most fervent hope 

that the Cease-fire Accord of the Vietnam War, signed in Paris on Saturday, 

January 27, 1973, will ripen into a just and lasting peace. May it yet provide a 

needed op po rtu nity to reconcile the deep domestic divisions which fo r too many 

years have embittered our society.

Mindful of the Jewish religious precept to temper justice with mercy, a major 

ef fo rt to effect this healing process in the United States is for the President or 

Congress of the United States to grant uncon ditional amnesty to those young men 

who fou nd, early or late, tha t they cou ld no t particip ate in the Vietnam War, and 

so eith er went to prison, resisted or deserted. As we make peace wi th our enemies, 

let us also make peace w ith the youth of America, whether or no t in conscience 

they served in the Armed Forces or took another path. Among the latter were 

religious pacifists who hold war itself in abhorrence; others objected on ly slightly 

in advance of the majority of their comp atriots to this particu lar war. Some of 

them were fo rtified in the ir resistance to serving in the Armed Forces during the 

Vietnam Co nflict by the distinction Judaism makes between a "j u st" war and an 

"u nju st" war or by the imperative to refrain from participating in a war regarded 

by the individual as immoral. Neither all who served nor those who chose alternative paths were necessarily motivated by the highest of moral values. Nevertheless, since any but a total amnesty poses great delays and almost insurmountable 

obstacles to the achievement of justice, we call upon the President or Congress of 

the United States to grant uncon ditional amnesty as an act both of reco nciliation 

and compassion tha t can speedily help to reunite the people of the United States 

for the key tasks of justice, reco nstruction and development which lie ahead both 

in this and other countries.

Resolution adopted November, 1973 by the 60th Ann iversary Biennial Convention

of the Na tional Federation o f Temple Sisterhoods in New York City . (The substance o f this Resolution is based on one subm itte d to and approved by the

Commission on Social Ac tio n fo r Reform Judaism o f w hich N FTS is a member.)

UNION OF AM ER ICAN HEBREW CONGREGATIONS

We are deeply gratified by the cease-fire accord presently in force in Vietnam. 

It has brought cessation to a war we have long opposed and fo r which we saw 

neither moral nor legal sanction.

We express ou r most reverent hope that th is cease-fire will ripen into an abiding 

and lasting peace, and that it w ill provide the needed opp or tu nity to reconcile the 

deep domestic divisions which so embitter o ur society. It is time now t o "b ind up 

the wounds of the na tio n."

Based on the Jewish religious concern to reconcile generation to generation, 

person to person and in consonance w ith the pro phetic cry of Malachi: to turn the 

hearts of the parents to the childre n and the hearts o f the childre n to the parents, 

it is our considered judg ment that the fir st way to a ffect this healing process is by 

Congress granting uncon ditiona l amnesty to those young men w ho fo und, early or 

late, that they could no t particip ate in that war and so went to prison, resisted or 

deserted. As we make peace w ith our enemies, let us also make peace w ith these, 

our youth.

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500

With full respect for those w ho chose to serve and those who sacrificed so much 

for their country, we call upon Congress to grant unconditio nal amnesty as an act 

of rec onciliation and compassion that can help speedily to reunite the American 

people fo r the key task of justice and peace which lie ahead.

Resolution passed by the Union o f American Hebrew Congregations at the 5 2nd

Biennia! General Assembly, during November, 1973.

LUTHERAN

THE AMERICAN LUTHERAN CHURCH 

Amnesty in Perspective

1. Current discussion about amnesty. The current interest and concern regarding amnesty in this nation has been occasioned by American involvemen t in the 

undeclared Vietnam War, the longest war in our history. Thousands of young

1

 American men have been convicted or have gone in to exile abroad for actions of 

conscience related to this war. They include (1) those wh o are selective (pa rticular 

war) obje ctors; (2) in-service objectors; (3) objectors to the d ra ft system; (4) draft 

registrants subjected to punitive reclassification due to protest activities; (5) 

m ilita ry deserters; (6) exiles who face criminal ind ictme nts should the y return to 

this coun try ; (7) those who have been or can still be prosecuted fo r alleged war 

crimes; (8) draf t violators who have served sentences but still bear the stigma of 

crimina l ac tiv ity ; and (9) those less-than-honorably discharged fro m the armed 

forces.

2. What is amnesty? Amnesty is a legal term which'refers, in the law of war, to 

a setting aside of an ind ictme nt fo r offenses connected with war. It is an act of 

government that grants remission of punishment fo r past high political offenses 

such as treason and is usually in behalf of certain classes or groups of persons who 

are subject to trial but have not yet been convicted. The word amnesty is derived 

from a Greek word meaning to forget. In effect, amnesty overlooks past politic al 

offenses against a government and erases them from memory. Amnesty has been 

called a "blessed act of oblivion.”

3. Pardon and amnesty. The power to pardon has been legally held to include 

the power to grant amnesty by proclamation . Pardon is governmental forgiveness 

fo r an individ ual offense; amnesty is the decision no t to punish fo r the offense. 

The United States Supreme Court has said: "A mne sty is the ab olitio n and forge tfulness o f the offense; pardon is forgiveness." (K nott vs. U.S., 95 U.S. 149)

4. A historical view of amnesty. The power to grant amnesty on federal issues 

in this coun try lies historically with in the discretion of the president. The Constitu tion of the United States, Article II, Section 2, confers upon the president the 

"pow er to grant reprieves and pardons for offenses against the United States.. . . " 

The wo rd amnesty does not appear in tha t docum ent. Presidential proclamations 

o f amnesty have been made in American histo ry, fo r example, by Presidents 

Washington, Adams, Madison, Lin coln? A ndrew Johnson, Theodore Roosevelt, 

and Truman.

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501

American citizens have the right to appeal fo r amn esty, although amnesty is 

not a legal right. Regardless of one's views concern ing amnesty in relation to the 

law of war, it is impo rta nt to understand that no general amnesties have been 

granted in the United States in the twen tieth century . After World War II, a 

President's Amne sty Board was established. It actua lly operated as a pardon board, 

considering offenses on a case-by-case basis.

5. Questions concerning amnesty and related issues. The curren t national 

discussions concerning amnesty indicate that heavy pressure will be bro ught fo r 

the granting of something like that amnesty historica lly granted by past American 

presidents, perhaps with certain conditio ns, when the Indochina War ends. 

Continuing questions concerning amnesty and related issues include: Why or why 

not? For whom ? How much?

Some citizens argue th at our government's pa rticip ation in the Vie tnam War 

has been unjust and imm oral. This vie wp oin t maintains that the federal government has been wrong and therefore it should be asking forgiveness from those who 

refused to fo llo w national po licy concerning this war. Those holding this view 

state that amnesty must not be equated with forgiveness. They do not want the 

nation to forget the conscientious acts of potential amnesty recipients — except 

in the lim ite d legal sense o f f orgettin g to in dict fo r such offenses. ?— . -

6. The range of viewpoints regarding amnesty. The alternatives under discussion range fro m unconditional amnesty thro ugh amnesty with conditions (such as 

tw o to three years of alternate civilian service) to no amnesty at all. In tim ing, the 

proposals range fro m amnesty now, through sometime after the end of the war or 

the end o f the m ilita ry d raft, to never.

Americans who now th in k the Vietnam War has been a serious blunder tend to 

advocate broad amnesty, including remission of crimina l penalties and elim ina tion 

of criminal status fo r all those whose crim inal acts were committe d because of 

their reaction to the war. Americans who believe that our national policy in the 

Vietnam War has been honorable ten d to sup port narrower interp retations of 

amnesty or no amnesty at all fo r w ar resisters.

7. Reasons comm only advanced fo r granting amnesty. (E ditor's Note: These 

reasons are listed in the complete text.)

8. Reasons comm only advanced against granting amnesty. (Editor's Note: 

These reasons are listed in the complete text.)

9. Amnesty and American public po licy. Am nesty has been granted as a m atter

of pu blic policy when pardon for po litica l offenses has been deemed more expedie nt fo r the public welfare than prosecution and punishment. A governm ent 

grants amnesty in an ef fo rt to restore good w ill, to recover mutual tru st, t o foster 

a sense of shared national purpose, and to reconcile divided faction s among its 

citizens. It is reasonable to assume, in the words of Columbia University law 

professor Louis Lusky "that the dominant concern fo r amnesty is a concern fo r 

the welfare o f society as a w ho le......... "

10. Our special role as Christians. As Christian citizens, we, too, should pa rticipate in gaining a clearer perspective on the com plex problem of amnesty and 

related issues. Our concern is focused on understanding, acceptance, and reconciliatio n among American citizens wh o disagree about the Vie tnam War. As 

Christians, we can (1, examine ou r feelings and opinions about amnesty fo r war 

resisters; (2) discuss such feelings and o pin ion s w ith persons who have a variety of 

views and experiences related to this issue; (3) study and evaluate proposed 

legislation on amnesty and related concerns; (4) listen to persons and groups 

advocating diffe rin g views on amnesty; (5, ask candidates fo r po litical office to 

state their views on amnesty at church or commun ity gatherings; (6) vote our
502

informed convictions on the issue if and when amnesty concerns are on the ballot; 

(7) discuss amnesty or pardon and its relation to reconciliation in Christ in local 

congregations and communities. This is where social concerns take root and spread.

a. Our response in concern and action. The Lutheran Council in the U.S.A. 

at its annual meeting on February 29, 1972, adopted a statement entitled "Toward 

Reconciliation." In this statement the council offered the following four particulars for resolving divisions and furthering national healing:

(1) We call for acts of reconciliation between those who believe they served 

their nation by supporting this war and those who believe they served their nation 

by refusing to support this war.

(2) We urge loving concern for those who conscientiously participated and 

now return to a society which may forget their service or give it only a negative 

meaning. We express our approval of new initiative from both government and 

private agencies in job training and placement, drug rehabilitation, and other helps 

toward re-entry to civilian life.

(3) We urge loving concern also for those who refused to participate for reasons of conscience, including those who chose to face prosecution or to leave our 

land and seek refuge in another. We express our approval of new initiative from 

both government and private agencies to resolve the question of amnesty and to 

provide services, in order to facilitate re-entry into the life of our nation.

(4) We transmit this statement to the participating church bodies with the 

hope that they will commend it to their congregations for a response in study, 

prayer, acts of reconciliation, and the resolve to be caring communities. Let all 

seek from God the strength to accept one another, the willingness to renew 

relationships, the recommitment to faith in God's desire that his healing come to 

all men, and the trust that through God's guidance mankind may find peace and 

the means for its maintenance.

b. Christian realism. Christian people will need to be realistic in appraising 

the wisdom and statesmanship involved in dealing with the public discussions 

focusing on amnesty and related issues. Christians will continue to seek to achieve 

justice, love, peace, healing, and reconciliation among all persons, empowered by 

the spirit of God, the author and finisher of all that is good, in concert with all 

people of good will.

c. Our ministry of healing and reconciliation. Part of God's activity is to 

reconcile all persons to himself, to each other, and to his creation. He seeks to 

heal us and to enable us to become whole (Isa. 53:5; 1 Peter 2:24). This activity 

of God breaks down the barriers of our sinful condition — rebellion, pride, 

separation, division — in order th at the sons and daughters of God may be restored 

to fu ll participation and full citizenship in the family o f God.

Jesus is our reconciliation with God (Eph. 2:14-18; Col. 1:19-20; Rom. 5:10- 

11; 2 Cor. 5:18-20). He joins together in himself, God and humankind. Christ has 

given to us the ministry of reconciliation. If Christians do not proclaim Christ's 

message of reconciliation to our nation at this time, who will? (Editor's Note: This 

statement was adopted from a longer statement — single copies may be secured 

by w ritin g NISBCO.)

A statement of the Sixth General Convention o f The American Lutheran Church

adopted October 9, 1972, by action GC72.9.149, as a statement o f comment and

counsel addressed to the members o f the congregations of The American Lutheran

Church to aid them in their decisions and actions.
503

THE LUTHERAN CHURCH - MISSOURI SYNOD

The question of amnesty is being increasingly discussed as the fate of those 

who went in to exile to Canada or Sweden, either to evade the draf t or in moral or 

conscientious protest against the war, has become a pu blic concern. The President 

of the Synod has asked us to provide a framework fo r reflec tion and discussion of 

the issue. While much of the discussion will be exp lic itl y po litical, churches also 

recognize responsibilities in relation to the subject.

Our own church body may be represented by on ly several hundred among the 

more than 70,000 young men involved. Thus, direct pastoral care may no t be an 

extensive matter. But all our members .will wish to prepare themselves t o face the 

issues intellige ntly. Decisions affe ctin g the po litical body on one hand and the 

lives of tens of thousands of American families on the other, fall in to the area o f 

the church's social concern. .

It is inconceivable tha t all members of our churches will come to agree on a 

single po licy, nor is it likely that representatives of the various m inor ity positions 

on the subject will convince all others that either a "h ard " or "s o ft " line will be 

the only one com patible with a clear word of God. We do no t fin d any simple 

ex plicit Scrip tural grounding fo r one o r another of the offere d solutio ns. Christians 

will want to explore both the texts having to do with good order and government 

on one hand and concern fo r persons and especially persons-in-families on the 1

oth er in ord er to provide a co ntext f or reflec tion. Such passages have more to say 

than do Scriptural words about exile, sanctuary, or vengeance carried over from , 

Biblical settings when the governmental situation was n ot comparable t o our own. [

The purpose of this docume nt is to stim ulate thou gh t and discussion, to place i 

the topic on ou r churches' agenda, to seek to co ntribute to the creation or pre s-1

ervation of a clim ate in which Christian people can express a range of approaches 

which will deepen and elevate national discussion w ithout rending the fellow ship, j 

and to inv ite response fo r the commission's own furthe r reflec tion and possible I 

dissemination of ideas.

The issue: Should young men who have chosen exile be pe rm itte d to return to • 

the United States with ou t suffering legal penalties now or at the end of the milita ry ' 

involve ment1

 in Vietnam either through a simple declara tion of amnesty or by re- [ 

entering American society through some fo rm of civilian service?

We note that those who look fo r an act of repentance fo r wrongs and of repen- i 

tance fo r wrongs and of moral judgement on the war itself usually ask fo r simple 

amnesty. Those who restrict themselves to a direct concern fo r the return of the 

exiles and restoratio n of their life in the United States more fre qu en tly allow f o r ' 

some form of civilian alternative to milita ry service as the price of reentry.

We shall tr y to summarize three arguments against amnesty, accompanying each j 

with a com ment, and then will summarize three arguments fo r amnesty, again a d-, 

ducing some questions o r comment.

A. Frequently cited reasons fo r opposing amnesty.

1. It is sometimes said that sup port fo r government, order, or rule of law in J 

society means tha t Christians must join fellow citizens in seeing to it tha t knowing '
504

violato rs or evaders of a law, whe ther in a sp irit of self-service or conscientious 

witness, should remain in exile or be punished upon return . To do otherwise would 

be to deprive society of its basis and perhaps to deprive moral protestors o f their ■' 

own base for moral protest — w hich had been undertaken in the face of the risk or 

the certainty of punishm ent of inconvenience. What will happen to law o r moral 

protest in future if a policy of amnesty should suggest tha t s ociety can be casual? ;■ 

Comment: The ma tter of the majesty of law and the risk-factor in moral protest has definite theological imp lica tion s, though there may not be a single practical 

decision growing ou t of the recognition of these. While amnesty has overtones o f 

forgiveness and implies some sort of man-to-man rec onciliation , it should not, 

however, be confused with the divine forgiveness or re co nc iliation which follow s 

upon repentance. Society is no t be be run on the model of a fo rgiving God's way 

of dealing w ith penite nt man; indeed, it implies the sphere o f law. This is no t to say 

that human law can never be broken: "w e ought to obey God rather than ma n" is 

a Biblical word also to this situation , and in its spirit many you ng men may have 

conscie ntiously acted. But the Christian calls fo r them to take action in light o f the 

poten tial legal consequences.

2. There should be some regard, say many, fo r the feelings o f the exiles' peers 

and their families, both in the cases o f those wh o served in the m ilita ry or who 

took alternative service or served prison terms fo r failin g to do either. Is it equitable or judicious fo r a society to tre at people in tw o diffe rent ways when they had 

faced a similar issue?

Comment: This issue is ambiguous, a matter of judgment and calculation concerning good harmony in society's future . It is ambiguous because so far as can 

be known, great numbers of those who did serve in the milita ry and even family 

members of many who were injured or killed now join conscientious objectors in 

opposing the war on moral terms and share the views that society will overcome 

its present difficu lties on ly if it recognizes those who engaged in moral protest. It 

is not possible to kno w how many of these voices there may be t o balance vocal 

advocates of punishment fo r evaders and exiles, but in any case the psychological 

factors are too subtle to permit this to be the main base fo r decision.

3. Sometimes opponents of amnesty will speak in a spirit of vengeance: these 

you ng men knew what they were doing; the y got what the y deserved; let them 

remain exiles or suffer punishm ent here; i t "serves them rig ht ."

Comment: Vengeance, however humanly natural it may be, is not a legitimate 

foun da tion fo r Christian inqu iry , interpretation, and action, and this spirit — 

wherever i t turns up — has to be dismissed as incongruous w ith Christ's way.

B. Frequently cited reasons fo r sup porting amnesty or return on the basis of 

"alternative civilian service."

1. Christians are to ld that they above all must be custodians of the value of 

persons and guardians of the concord of families. If artificial separation occurs in 

70,000 of our society's families or if the creative potential of countless young lives 

be lim ite d as the result of prolonged exile, the exaction of penalties may be too 

high a price t o pay for order in society.

Comment: In this case, as in the matter of the objections, this first reason cited 

has the most theological significance. The Christian cannot deal sim ply with people 

by category; he must penetrate the patterns of life to reach the person. "T he 

Sabbath was made fo r man and no t man fo r the Sabbath.” Casual disregard fo r 

the problems or consciences or moral values of people — includ ing dissenters — 

will take its to ll in d emora liza tion , disregard of the value o f life , or the atrophy of
505

the Christian a bility to care.

2. It is said that on ly through some sort of po licy of amnesty can the larger 

society learn fro m and give some sort of endorsement to the moral pro test of

• sig nificant numbers of exiles. They engaged in conscientious pro test against a war 

which sig nifica ntly larger elements of society have since come to call imm oral. 

Am nesty wo uld be a rec ognition of national gu ilt and a means o f extending 

gra titude to or honoring these people.

Comm ent: This second matter, like its counterpart above, is more ambiguous

: than the fir st. Not all exiles did engage in conscientious protest. Some acted in a 

positive po litical gesture against the government. Others, wh ile im plic itly or even

• strid en tly urging th at the war was imm ora l, often spoke in rather casual terms 

about their personal act. It is difficult, in any case, to judge hearts and motives to

j k now wh at was at the base o f exile.

A psychological or po litica l question fu rthe r complicates this: It is incon-

, ceivable th at a whole society w ill call its acts immo ral — especially since to do so 

might mean condem nation of participants in the war on America's side. Since 

such an act is so hig hly un likely, it would confuse the issue if the return o f the 

■ exiles is to be connected with a forma l act of nation al repentance or recognition 

of fault. It may be questioned, then, whether advocates of amnesty on these terms 

are no t also using the exiles to furthe r a po licy. Would it no t be possible and 

advantageous to separate the issues and fin d othe r devices fo r bringing the issue 

of the war's moral status to pu blic attention?

3. A Christian sp irit of forgiveness should lead the church to say that as God

' forgives man, so the Christian forgives the brother and society deals with 

' transgressors.

Comm ent: As noted above, the analogy breaks down in this issue, especially

, since most exiles do not see themselves in need of repentance fo r an act they 

I regarded as moral. The language of forgiveness in civ il society can sentim entalize 

the concept of law. In any case, the comparison is so confusing th at one almost 

regrets the use o f the term amnesty because o f its nearness to the concept of 

forgiveness. (Am nes ty means oblivion, forg etting.)

Suggestions fo r action

1. Pastoral counseling. Because of the complex ity and am bigu ity we urge our 

counselors and pastors to deal with young men and t he ir families w ithout w aiting 

fo r a change in national po licy. Where possible in conscience they can serve as 

advocates fo r these exiles. Where the y agree with the pro test they may very well 

be asked to speak up f or the you ng men. Even where the pastor does no t share the 

exile's views or agree with his protest, he can sustain a positive relation to persons 

in need.

2. Congregationally and ecclesiastically. Our church and its various jurisdiction s 

should hlep create the circumstances or clim ate wherein the issue can be appraised 

in a co ntext of Christian acceptance, listening, and mutual up building . There 

should no t be advance judg ments of the sin cerity o f advocates of othe r positions 

or prem ature resolution of theological issues. Those wh o take sides should be 

asked to support their cases by reference to the teaching of the church and not

. merely on the basis o f personal predilections.

3. Po litica lly and nationally. The Commission of Social Concerns reasons tha t 

' no God-pleasing solution to the question of amnesty can be achieved unless all

31-6 58 0 - 7 4 - 3 4
506

recognize both the seriousness with which law is to be taken and the regard with 

which the/person in need is to be faced. Where does this leave us? What help is a 

"framework for inquiry and reflection" which does not come out with a clear 

dictum, an unambiguous claim that the Word of God commits us to a specific 

policy? We believe the church is better served at this (stage by a statement which 

sorts issues, preliminarily evaluates arguments, and establishes a context in which 

people who disagree can do so creatively.

Out of such confrontations it may be possible that different congregations, 

jurisdictions, or Christian movements may come to see a clear light one way or 

another and begin to work for specific policies. The commission believes that the 

matter is best seen not as one of simple justice or injustice but rather as one of 

good policy. It is hard to make the case that continued exile and punishment or 

amnesty or alternative service (can be the only just solution from the viewpoint of 

the Word of God and the Christian church. Either choice may be a matter of good 

policy, depending on whether one lets the accent fall on preservation of order 

and law or on restoration of family relations and assisting young people to fulfi ll 

their potential in the land of th eir birth. Decisions may differ, even as they can 

be made in serious regard fo r God's Word and loving concern for those who 

disagree.

A suggestion: Those who would like to explore the ways in which amnesty 

may relate to issues of "reconciliation" should read "Amnesty in Perspective," 

available from the Commission on Church and Society, The American Lutheran 

Church. (Editor's Note: An abridged copy follows this statement.)

A Statement prepared by the Commission on Social Concerns — The Lutheran

Church — Missouri Synod.
507

MENNONITE

A Christian Declaration on Amnesty

As a major chapter in the Indochina war ends, it is im portant tha t the suffering and tragedy of the millions of wa r victims in Southeast Asia and North America not be forgotten. In a real sense everyone is a victim — those who promoted 

misguided policies as well as those who suffer from the terror of bombs and napalm and the thousands of civilians still imprisoned in South Vietnamese jails. 

Another group which continues to be victimized by the war, though they courageously refused to participate in it, are the thousands of fugitives from compulsory 

military service. It is for these persons tha t amnesty is needed.

I. Canada and the United States were once known by the nations of the 

world as lands of refuge for persons who opposed peace-time conscription or who 

refused to fig ht in wars. Among those who came fo r such reasons were some of 

our Mennonite and Brethren in Christ forebears. Many came as fugitives from 

compulsory military service. With the war in Indochina, this situation changed and 

the United States has now become a land from which men are flee ing. Canada, 

among other nations, has been the recipient of many of these fugitives of conscience.

Many Christians in Canada have rallied to aid those trou bled, conscientious 

young men and their families; they have provided food, shelter and fellowship. 

These ministrations of mercy grew out of a deep sense of Christian obligation to 

help "the stranger within the gates." It was also a repayment, in many cases, fo r 

the hospitality and friendship given to those who earlier came to Canada as 

refugee-immigrants. We thank God for these demonstrations of love and compassion.

II. As Mennonite and Brethren in Christ Christians, we oppose all wars and 

believe tha t the refusal to participate in war is the Christian's duty. The Indochina war is no exception. Indeed this has been a particularly heinous wa r in 

the way it has been fought. It is our strong belief tha t Christ's message of peace 

and reconciliation is at the very heart of the gospel. From this perspective and 

with this concern we speak for amnesty, an action which we believe can help heal 

the wounds of the war.

Reconciliation and the restoration of civil rights can come through a general 

amnesty — an amnesty which will, as the word in its o rigin implies, forget the lega l 

offenses because of a greater interest at hand. For us in this situation, amnesty 

is the law's ab ility to set aside its own power to indict and punish.

Many not faced with the life and death decisions of the draftee or a person 

in military service, see amnesty either as a generous act for youths who made a 

mistake or as forgiveness for those who broke the law. For Ana baptis t Christians,

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508

the view is quite different. We join with many of these young men in believing 

that taking a stand against the immorality of the Vietnam war needs no forgiv eness. The "premature awakening of conscience" should not cause the young men 

who early opposed participation in this immoral war to continue to be considered 

criminals. Indeed are these not a part of that creative minority who have helped 

to change American opinion from supporting war to the recognition that it was 

a fundamental mistake?

III. Most Mennonite and Brethren in Christ young men have refused military 

service for conscientious reasons and have accepted alternate service assignments. 

For some from our churches, however, the decision to refuse military service also 

led to questioning the validity of performing altern ate service. This decision was 

usually the result of deep struggles of conscience and a serious attempt to be a 

faithful Christian disciple. These Mennonite young men, perhaps numbering several dozen, are part of the larger group of potential amnesty recipients.

IV. Several hundred thousand men may be affected by a general amnesty. 

Some of these have never been in the military. A minority of this group chose not 

to cooperate with Selective Service or the military in any way. Most Mennonites 

who would be recipients of amnesty are in this group. A larger group of men, 

however, did attempt without success to gain conscientious obje ctor classification. 

Despite their opposition to all war, some of these were denied conscientious objector status, often because of administrative mishandling by Selective Service. 

Others were not recognized as conscientious objectors because they felt partic ipa ­

tion in some wars may be right, even though they believed participation in the 

Vietnam war was wrong. These men accept the just war position which calls on 

persons to discriminate individually between just and unjust wars. Most Christian 

churches take this position officially; it is not recognized leg ally, however.

The potential recipients of amnesty who were not in the military generally 

find themselves in one of three situations. First, they may already be convicted of 

draft law violations and be in prison, on probation, or released after serving a 

sentence as a felon. Since 1964, 7,433 have been prosecuted and those convicted 

have lost some fundamental rights of citizenship. Another 17,200 are awa iting 

prosecution. Second, they may be living in Canada or other countries to escape 

military service and prosecution. Between 30,000 and 40,000 men are in this 

group. Third, they may be living "un derground" in the United States or its territories and be liable for prosecution. No firm statistical evidence is ava ilable 

regarding the number of men in this group, but it is commonly estimated that this 

number is as large as th at of the group which migrated.

V. The largest group of potential amnesty recipients did not initially claim 

conscientious objection to war. They were drafted or enlisted in military service 

and then discovered that their conscience would not permit them to continue perform ing such service. As a result, these men find themselves in one of three situations.

First there are those sentenced to military prisons after unsuccessful attempts 

to obtain discharges. Second there are those who were less optimistic about getting 

such discharges and deserted from the military; these men when apprehended are 

also subject to military prosecution for their actions.. The third and largest group 

includes those who have received other than honorable military discharges for 

actions based on principled objection to war. These men face consequences somewhat less severe than a convicted felon, but carry a stigma as a result of the other-

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than-honorable discharge tha t may hinder future chances of employment or fav orable character references.

VI. Amnesty is in the best tra dition of the United States; eleven presidents 

have granted amnesty follow ing wars and rebellions. A general amnesty was 

granted to all following the United States Civil War — even to those found gu ilty 

of treason.

The time has come again to bind up the nation's wounds, wounds resulting 

this time from the Vietnam war. Amnesty will help reconcile the nation and a 

large group of its alienated sons.

VII. In ligh t of the above considerations, the Peace Section of the Mennonite 

Central Committee:

1. Asks our congregations to welcome back those who because of conscience 

violated the Selective Service Act or Military Law to avoid military service.

2. Urges our Mennonite and Brethren in Christ bodies to support a universal 

amnesty which without being punitive would restore all civil rights to those having 

refused milita ry service for conscience sake.

3. App eals to the United States Government to recognize the value of the 

witness of the men who opposed the war by restoring full civil rights with impunity 

to these men.

4. Commends those governments such as Canada w hich admitted young men 

who chose to leave the United States rather than fig ht in the Vietnam War.

Adopted by the Old Mennonite Church General Assembly, August, 1973. Statement drafted by Peace Section of the Mennonite Central Committee, March, 1973.

NATIONAL COUNCIL OF CHURCHES OF CHRIST IN THE U.S.A.

The war in Indochina has brought great destru ction to three nations o f South ­

east Asia. Hundreds of thousands of persons have been killed , wounded or made 

homeless; the cultures have been disrupted; the landscape has been destroyed. The 

people of the United States must wo rk fo r the rebuilding of Indochina, and the 

churches must take a sacrificial part in the reconstruction. But in this statement 

we w ill consider the harm which has recoiled upon this nation and its people.

The war in Indochina, the longest in the his tory of the United States, has also 

rent the fab ric of American society. President Lin coln, responding to the hurts and 

disjunctions of another co nflict, called upon the people of America to "b ind up 

the natio n's wou nds." Tragically, the attention of the nation was too soon diverted 

from this task. Recrim ination and injustice consequently lasted for an entire century. There is the danger th at the American people will be sim ilarly diverted today 

from the tasks of healing the nation.

The crisis of the war in Indochina, is fun damentally one of conscience. Some 

Americans tho ught the war just and necessary, while others tho ught it an immoral 

and tragic mistake. Likewise, some young men served in the armed forces, while 

others resisted p articipation.

These differences have not always been accepted as permissible divergences of 

public opinion or even as legitimate exercise of conscience. Instead they have led

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510

to slander, recrimination , and the accusation that the basic ideals of the nation 

have been forsaken.

Consequently, families and frien ds have been divided by diffe rin g opinions on 

the con flict. For example, it is not unusual fo r parents to have one son who fou ght 

in Indochina, while another emigrated to Canada. Almost every aspect of American 

life has been affected by dissension over the war. The divisions between races, 

eth nic groups, age levels, and life styles have been widened as a result of it.

No t only has the whole nation suffered fro m division over the war, but those 

who served and those who resisted participation have especially suffered. Over 

55,000 Americans have been killed in Indochina. Over 400 have been prisoners of 

war, held in North Vietnam — some f or a very long time.

The veterans of the Vietnam era have also been hu rt. Because the Selective 

Service System exempted and deferred many white, middle-class and educated 

men, those of non-white and lower economic backgrounds filled a disproportion ate 

share of the ranks of the armed forces. Consequently, many of the problems of 

the veterans of the Vietnam era result fro m their backgrounds — approximately 

20% of them return with ou t a high school education — and th eir unemployment 

rate is substantially higher than for others in the same age bracket.

The nation is not using its resources to meet the needs of veterans as substantia lly as it did after World War II. Many Vietnam era veterans are therefore hurt, 

frustra ted and angry because no t only is their nation not showing gratitude toward 

those who served, bu t it also appears to be ignoring and rejecting them.

Deep scars were also inflic ted on those who believed the war immoral and 

refused to particip ate in it. Over 6 0,000 persons, bo th draft resisters and deserters, 

have become exiles in other nations. More than 100,000 men have been prosecuted 

fo r draft violations. Un told numbers of draft resisters and deserters have gone 

underground to avoid prosecution. Although most have returned, or have been 

captured, over 350,000 members of the armed forces deserted during the 

Vietnam era.

More than 300,000 Vietnam era veterans have received less-than-honorable 

discharges, a stigma they will bear fo r the rest of their lives. Some have been 

convicted by court martials fo r crimes which wo uld be considered felonies by 

civilian courts, but the actions of the overwhelming majority would either be 

misdemeanors or would carry no penalty at all in civilian life . The majority of 

less-than-honorable discharges result not from the decision of a court martial, but 

by the order of a commanding o fficer. Had these men and women not been in the 

military service, the ir records would not have been perm anently marred by this 

imputation of wrong-doing.

A t this time of national distress, we should remember that God is our final 

judge; He alone is Lord of the conscience. We will stand at the last awaiting His 

judg ment and His mercy. Our human system o f justice is not designed to separate 

the righteous fro m the unrighteous in any such final sense, but merely to maintain 

the safety and welfare of the human comm unity. It exceeds its func tio n when it 

divides the comm unity and stigmatizes some citizens because of past views and 

actions which no longer pose a threat to the safety of the commun ity, if indeed 

they ever did.

Healing the lesions in our society left by the war in Indochina will require 

human compassion and political forbearance. The war was begun despite the 

protests of a substantial m inor ity of the American people and continued despite

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511

the reservations of a majority. Some young men and women agreed with the 

majority — that the war was a mistake. Believing that it was also unjust and 

imm oral, they refused to particip ate in it and thus incurred varying degrees of legal 

jeopardy. To hunt them down and prosecute them now is to add vindictiveness to 

vic tim iza tion, neither of which is a proper basis fo r imposing crim inal penalties and 

will on ly increase rather than heal the nation's hurts.

We fur ther recognize the need fo r rec onciliation on this issue with in the Church. 

There have been Christians who entered the armed forces believing that the cause 

in Indochina was right and just. Other Christians have held opposite views, which 

led them to resist the war and the dra ft.

We believe tha t Christ works in His Church, calling us together to be one body 

as a sign of His intention fo r the whole human family. His reconciling love overcomes mistrust and suspicion and heals hur t and pain. Christ calls us to new Being, 

both personally and corporately.

As He calls those in His Church to be reconciled, so we covet fo r America the 

experience of reconc iliation. For reconciliation to begin, however, certain actions 

are necessary:

Genuine reconciliation demands that amnesty be granted to all who are in legal 

jeopardy because of the war in Indochina. The only exception wo uld be for those 

who have comm itte d acts of violence against persons, and even these cases should 

be reviewed individu ally to determine if amnesty is appropriate.

Such amnesty would include:

(a) draft resisters and deserters who have exiled themselves to other countries;

(b) those curre ntly in prison or military stockades, those on pro bation , those 

who have served the ir sentences, and those who are subject to prosecution for 

violatio ns of the draft or military law;

(c) draft resisters and deserters w ho have gone underground to avoid prosecutio n;

(d) Vietnam era veterans w ith less-than-honorable discharges;

(e) those who have com mitted civilian acts of resistance to the war or are being 

prosecuted upon allegations o f the same.

God alone knows what actually motivates the actions of persons, and few act 

fo r one reason alone. Therefore, we feel it unwise to attempt to judge the motives 

of those to be given amnesty, just as we do not presume to judge the motives of 

those who were in the armed forces. For instance, we do not believe that draft 

resisters and deserters deserve diffe rent treatment, since the latter would be 

penalized simply because the ir convictions may have changed after entering the 

service, rather than before.

We view amnesty not as a matter of forgiveness, pardon, or clemency, but as a 

"blessed act of ob liv io n," the law's own way of undoing what the law itself 

has done.

Reconciliation furth er requires creating the possibility of new lives fo r those 

Americans hu rt by the war in Indochina. Veterans should have adequate help for 

the ir unemployment, education, and health needs. To accomplish this w ill require 

the interest and response of all institutions in the United States. In addition, 

veterans' benefits provided by federal and state governments should be increased 

to a level at least comparable to those afforded veterans of World War II.

The Church at all levels needs to make its healing ministry available to veterans.

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512

Prisoners of war and those incarcerated in United States prisons also require the 

development of opportunities to help them live fu lfill in g lives. In addition, those 

Americans whose needs were not met but were even exacerbated because of the 

nation were diverted to the war ef fo rt, require the special attention of our nation.

By granting amnesty and providing opportunities fo r those hu rt by the war in 

Indochina, we would begin to repair some of the damage to our nation inflicted 

by tha t war.

Ad op ted by the General Board o f the Nation al Cou ncil o f Churches o f Christ in

the U.S.A.. December, 1972.

NA TION AL INTERRELIGIOU S SERVICE BOARD

FOR CONSCIENTIOUS OBJECTORS

NISBCO's commitment to respect for conscientious refusal to particip ate in 

wa r (all war or any particular war) leads NISBCO to a position of sympathy with 

the removal of legal disabilities incurred by persons opposed to the Vietnam War.

While NISBCO has not given its support to any particular amnesty bill or 

other proposed solution, it does wish to associate itself with the approach outlined 

in the statement of the Interreligious Conference on Amnesty (March 27, 1972), a 

conference in which many members of the NISBCO Consultative Council were 

represented.

Board of Directors and Consultative Council of the Na tional Interreligious

Service Board for Conscientious Objectors, November 28-29, 1972, Washington,

D.C.

ROMAN CATHOLIC

NATIONAL CONFERENCE OF CA TH OL IC BISHOPS

Resolution on the Imperatives of Peace

This is a critical moment in the history of the Vietnam War. Intensive efforts 

on the part of our government as well as other parties involved appear to be refining the final details of a settlement which will end the fighting . Recalling our 

exhortations a yea r ago to our nation's leaders and to leaders of all nations to 

"brin g the war to an end with no further de lay," we pra y earnestly to Christ, the 

Prince of Peace, for a successful outcome of the present negotiations: tha t is for 

a just and lasting peace with stability and freedom for all the nations and peoples* 

of Southeast Asia. We couple this prayer with a plea to both sides for an end of 

bombing and terrorism which are causing such loss of civilian life and destruction 

of the land itself. Indeed, a partic ula rly anguishing and, in many cases, immoral 

aspects o f this war has been the suffering and death inflicted on non-combatants.

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513

It is vitally important tha t Americans now turn the ir attention to the task of 

reconciliation not only in Southeast Asia but also in our country. This war can well 

leave a residue of bitterness which could poison our national life for years to come. 

This must not be allowed to happen. We must instead seek to resolve our diffe rences in a spirit of mutual understanding and respect.

Special attention must be given to the young people of our nation whom the 

war has profoundly affected in so many ways, material, psychological, and spiritual. Our returning veterans, and especially the wounded and the prisoners of war, 

must be given every possible consideration and assistance to enable them to reintegrate their personal and professional lives into civilian society. Our sincere 

compassion should be extended to the families of men killed in the figh ting . The 

dead, the maimed, and the missing in action should have constant remembrance 

in our prayers. Those who continue to serve in the military should also receive the 

moral and material support of the nation.

In a spirit of reconciliation, all possible consideration must be given to those 

young men who, because of sincere conscientious belief, refused to participate in 

the war. A year ago, we urged "tha t civil authorities gra nt generous pardons of 

convictions incurred under the Selective Service Act, with the understanding tha t 

sincere conscientious objectors should remain open in principle to some form of 

service to the community." (Resolution on Southeast Asia, Na tion al Conference of 

Catholic Bishops, Novem ber, 1971). We again urge government officials and all 

Americans to respond in this spirit to the conspicuous need to find a solution to 

the problems of these men. Generosity represents the best of the American tradition and should characterize our response to this urgent challenge.

Generosity must also mark our participation in efforts to rebuild the wartorn nations and societies of Southeast Asia. There can be no doubt that the people of North and South Vietnam, Laos and Cam bodia have suffered a tragedy fa r 

greater than ours. The dramatic and successful programs of aid and reconstruction carried out by the United States follow ing World War II provide a model for 

what is demanded of us now. We must be unstinting in the expending of our 

moral, material and technical resources and skills on beh alf of the people of 

Southeast Asia who have suffered so greviously.

Finally, we believe that the imperatives of peace now demand intensive study 

of many complex and pressing moral issues. The return of peace should not cause 

a slackening of attention to these matters. The experience of recent years amply 

illustrates the fac t that grave ethical and moral questions reg ard ing wa rfare remain unresolved. Wh ile recognizing the right of self-defense, we are nevertheless 

convinced that war is not apt means of settling disputes. The quest fo r viable 

means of preventing war and for effective alte rna tive methods of resolving conflicts—through such agencies at the United Nations—is an urgent imperative. Technological skill in the science of war must not outstrip humane skill in the arts of 

peace. Church agencies, including the United States Catholic Conference, Catholic educational institutions, diocesan offices for justice and peace and org anizations of the laity should in the months and years to come take a lead ing role in 

the effort to work fo r international justice and to find ways to ensure that peace— 

which, God willing, is returning to Southeast Asia and also to the United States— 

will be the permanent condition of human life in all nations and fo r all time.

National Conference of Catholic Bishops, November 16, 1972, Washington, D.C.

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CONFERENCE ON MAJOR SUPERIORS OF MEN IN U.S.A.

Aware of the need to speak to value issues in American society, and mindful of 

our role as religious leaders with in the Catholic community, we members of the 

National Executive Board of the Conference of Major Superiors of Men address 

ourselves to the critical question of amnesty.

We consider amnesty to be a positive act o f compassion directed to our fellow 

citizens who are in prison or in exile because of their response to laws relating to 

military service. It is a proclamation tha t persons are free to return to their families 

and homes, exem pt from all legal prosecution for whatever actions they may have 

fe lt obliged to take regarding partic ipation in the Vietnam War. It restores them to 

their fu ll legal status of living and wo rking in the United States as free and useful 

members of society.

Amnesty does not mean "for giving "; it is not a judgement of condemnation, 

nor an act of condonation. It is simply an act of "for get tin g," a wip ing clean of 

the slate, or overloo king o f any past legal transgression.

We feel tha t the most urgent need facing the United States at this mom ent is 

the need fo r reconc iliation. Afte r a decade of bitte r dispute over the Vietnam war, 

we Americans need to be brought together, to bind up our wounds, to unite in a 

common purpose to promote peace and justice.

Thousands of young men are currently in prison or in exile fro m the United 

States because of the positions which they took on the Vietnam war. Their status 

is both a symbol and a cause of division in our country. Amnesty would be a 

healing and reconciling measure designed to overlook the past and move a united 

nation into the future . It would restore confidence in the ab ility of our government and its people to foster a sense of renewed purpose, especially as we approach 

the 1976 Bicentennial Celebration.

We feel that the criterion to be used in deciding what kind of amnesty is 

chosen is clear; what best promotes the goal of reconciliation? We believe tha t a 

unive rsal and un cond itio na l amnesty will do the most at this tim e to prom ote 

reconciliation.

(1) It should apply to all individuals who have broken laws regarding conscription into military service or who have withdraw n fro m partic ipa tion in military 

service. This will affe ct those who have avoided the draf t through going underground or leaving the country, those who have been imprisoned because o f noncooperation or form s of conscientious obje ction not recognized by our courts, 

and those who have left military service or have been imprisoned because of 

refusal to take part in combat. (We are not speaking here of crim inal offenses 

unrelated to the draft and the war.)

(2) If it is to be a true forgetting, the amnesty must not impose any penalizing 

con ditions, such as alternative service or recording the facts of the case in public 

records. An y penalizing con ditions would not heal division nor restore harm ony 

to the nation.

As American Catholic religious leaders com mitted to justice and peace, we call 

upon the President and the Congress to take the necessary steps to grant such an 

immediate universal and unco nditional amnesty.

We are aware of the political difficu lties involved in such an action and o f the 

heated debate to which the issue of amnesty gives rise. There are certainly honest 

differences of opinion about the desira bility, feasibility , and consequences of such

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actio n. However, it is our considered opinion that the amnesty we call for is the 

surest path to the prom otion of reconciliation, in our nation.

In order to co mmit ourselves to the task of reconciliation, we are taking the 

following actions:

(1) We are sending a copy of our Call to all of the members o f the Conference 

of Major Superiors of Men, inv iting them to share this statement with the ir own 

com munitie s, to thereby stir up discussion and reaction, and to send their response 

to us.

(2) We are c ommunicating our pos ition directly to President Nixon and to dll 

members o f the Congress.

(3) We are inv itin g members of the Conference of Major Superiors of Men to 

join the ir signatures to ours in support of this statement on amnesty at the Annual 

Assembly in June, 1973.

(4) We are asking the American Catholic Theological Society to commission a 

task force on the theological dimensions of amnesty in order to deepen the understanding and further acceptance of this act o f reconciliation by Americans.

Issued by the Conference o f Major Superiors o f Men in the U.S.A., Inc., Washington, D.C., May 28, 1973.

SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE

The Southern Christian Leadership Conference today launches the National 

Movement fo r Amnesty. We call upon all concerned to join this Movement so that 

the inno cent will not have to suffer for crimes never comm itte d. We will utilize 

the resources of all dedicated Chapters and Affiliates Nationwide to dramatize the 

issue of Amnesty for the young men who refused to fig ht in the Vietnam Co nflict.

We will speak to the conscience of the people in this Nation by conducting 

massive non-violent confrontation s w ith the elected officials of our land, including 

President Richard M. Nixon.

Especially President Richard Nixon because with one stroke of the pen 

Amnesty could become a rea lity fo r thousands today. The thousands that ran 

away to Foreign soil rather than be forced to fig ht in an unjust war. We say to 

Mr. Nixon, the Congress and the People — let them come home NOW.

We furth er urge all of our elected officials to stand up and be men and women 

and join this Movement. We urge the people of this Nation to register the ir feelings 

with the ir Congressmen and Senators by writing letters, sending telegrams and 

doing whatever is necessary to get your po int across.

We are calling on the Congressional Black Caucus and all other elected officia ls 

to initia te the passage of legislation that wo uld grant Amnesty imm ediately to all 

of the young men who registered as Conscientious Objectors and those who 

refused to fig ht in the illegal, unconstitu tional Vietnam Conflict.

We feel tha t if the President of these United States does no t heed to the call of 

the people of this Nation to grant Amnesty for those inno cent young men, it is 

going to be a very sho rt w hile before he is indeed impeached from office.

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516

Our Organization has a moral obligation to furth er the Dream of our late 

beloved leader. The LAT E DR. MAR TIN LUTHER KIN G, JR., by fighting the 

triple evils of Racism, M ilita rism and Economic Explo itation.

We urge you to join this Movement so that we can pro tec t the few Freedoms 

tha t we so recently won.

Fro m a Stateme nt released by Rev. Ralph David Abern athy, National President

o f the Southern Christian Leadership Conference, November, 1973.

UN ITA RIA N UN IVE RS AL IST ASSO CIATIO N

Whereas, hundreds of thousands of Americans have unjus tly suffered a loss of 

civil rights, liberty and jobs because they have been in opposition to the Indochina 

War or to the racism and oppression o f the American m ilitary and dra ft systems; and

Whereas, according to Canadian Department o f Imm igra tion statistics there are 

tens of thousands of anti-war exiles in Canada alone while, however, the ma jority 

of war resisters are inside the U.S., where an estimated 200,000 live underground, 

thousands behind bars, many with court records, and over 500,000 veterans suffer 

fro m less than honorable discharges issued du ring the Indochina War era; and

Whereas, any amnesty that separates for diffe rent treatm ent pre- and postinduction resisters (draft resisters and those who resisted or separated themselves 

fro m the military) fails to recognize that class and race factors more than anything 

else resulted in these dis tinc tions and tha t such an amnesty would essentially 

discriminate against working-class and a dispro portinate number of non-white 

resisters, those who have already been forced to bear the heaviest burdens of the war,

Be It Resolved: that the 1973 General Assembly of the Unitarian Universalist 

Association urges that the Congress of the United States enact a universal and 

unconditional amnesty (with no alternate service or other punitive measures, and 

to avoid unworkable, unjust case-by-case judgements) for:

(1) All military resisters including so-called “ deserters", and draft resisters in 

exile or underground in the United States;

(2) All people who, because of the ir opposition to the Indochina War, have 

been arrested, have been or are now in civilian and military prisons, or for this 

reason are now being sought fo r prosecution — this includes a clearing of their 

records;

(3) The more than ha lf-million Vietnam era veterans who have been discharged 

fro m the military with less than honorable discharges who w ill suffer from permanent loss of civil rights, and discrim ination in employment with ou t an amnesty. 

The classification of military discharges as honorable or otherwise should be 

elim inated retroactively into one single category of discharge.

Be It Further Resolved: that4h e UUA 1973 General Assembly urges member 

societies of the Association to give specific attention to the issues involved in, and 

the means toward achieving a universal, uncon ditional amnesty by initia ting 

discussion with in each society, guided by materials to be developed by the 

Department of Education and Social Concern, and by members o f these societies 

ind ividually and collec tive ly communicating, educating and organizing of this issue 

to the lim its of their energies, time and comm itm ent un til such tim e as a universal 

and unconditional amnesty is effected fo r all of those who have been, are being,

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517

or would be punished fo r their resistance.

By supporting complete amnesty, we do not mean to imply lack of recognition

of the hardships, heartaches and sufferings o f all other citizens wh o were affected 

by United States m ilitary involvement in Southeast Asia.

Resolution passed by the Unitarian-Universalist Association at its General Assembly

in Toron to Canada, May 28 to June 3, 1973.

UNITE D CHURC H OF C HR IST

Amnesty for W ar Objectors

In the interests of reconciliation and the bind ing up of wounds, fo r the sake 

of our freedoms and to allow our high respect for conscience, in the best tra dition 

of a strong and secure democracy, in the name of Christian love, we urge the 

President of the United States to grant, at the earliest possible opportunity, amnesty 

and pardon for those who for actions witnessing to their beliefs have been incarcerated, deprived of their rights of citizenship, or led by their conscience into exile 

during the course of the nation's gre at agony in the Vietnam war. We urge these 

bold actions because this nation needs, and is strong enough to embrace, both 

those who have enga ged in the Vietnam conflict and those who have opposed it.

Seventh Genera/ Synod of the United Church of Christ, June 2 5 -J uly 2, 1969,

Boston, Massachusetts.

Amnesty

In keeping with the spirit of the position taken by the 7th General Synod, 

entitled Amnesty for W ar Resisters, the 8th General Synod (a) calls upon the Congress of the United States to gra nt amnesty to those young people imprisoned or 

in exile as a direct result of their refusal to participate in the wa r in Indochina; 

and (b) directs the Instrumentalities of the U.C.C. to act to promote such legislation fo r Amnesty.

Eighth General Synod of the United Church of Christ, June 25-29, 1971,

Grand Rapids, Michigan.

UNITED METHODIST CHURCH

Be it resolved tha t the Board of Global Ministries issue the follow ing statement:

As Christians, embracing the concepts of love and forgiveness, we reject 

President Nixon's terming amnesty to be "the most immoral thing" he "could 

think of".

We understand amnesty to be a lega l term fo r reconciliation, and the 

teachings of Christ clearly call us to be agents of reconciliation.

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518

We call upon the President of the United States to reaffirm his stance, 

stated in his CBS interview January 2, 1972, where he declared he would "be 

very libe ral as to amnesty".

This we believe is in our American tradition, follow ing the position taken 

on amnesty by previous presidents.

It also follows our Judeo-Christian tradition, which we affirm.

We believe tha t amnesty is not immorall

Be it also resolved that a copy of this statement be sent by the secretary to the 

President of the United States.

Board of Global Ministries of The United Methodist Church, November 1, 1972,

Atlan tic City, New Jersey.

Resolution on Amnesty and Reconciliation: majority report

There can be no authentic peace until all involvement, military and political,

in the Indochina War is ended. We recognize that the war has caused a crisis of 

conscience perhaps unparalleled in the nation's history. We need to overcome 

the paralyzing divisiveness of the war on our society and to mitigate as far as 

possible the tragic consequences o f the war.

When the war ends, we believe that genuine reconciliation demands a broad 

and general amnesty, without qualifications or conditions, to all who are in legal 

jeopardy because of the war in Southeast Asia. God alone knows what fin ally 

determines the actions of human beings, and all of us know that few of us do any ­

thing for one reason alone. Therefore, we feel it unwise to attempt to judge the 

motives o f those to be given amnesty, just as we do not presume to judge the motives o f those who served in the military. We do not dishonor but respect the consciences o f those who fought and died. We see amnesty, not as a matter of fo rgiveness, but as one step tow ard the reconciliation of the society.

The church has a major responsibility to initiate or join efforts to secure amnesty and restore full civil liberties for all such persons who suffered during the 

Vietnam era who should not be scarred for life. Of special importance is our need 

to meet our obligations to persons who have fought the war, to those who were 

killed, and to the plig ht of many Vietnam era veterans. The families of those killed, especially children, deserve every assistance that a compassionate church can 

provide. The church has an immediate ministry to provide pastoral care and secure other essential service fo r all such persons and their families through United 

Methodist personnel and cooperation with other churches and responsible agencies.

Each member of The United Methodist Church is challenged to express the 

transforming power of Christ-like love through his o r her commitment to offer understanding and reconciliation to all persons, who have been affected by the tragic 

consequences of the W ar, in order that the healing of a divided society may begin.

Amnesty: minority report

There can be no genuine peace until all involvement, milita ry and political, 

in the Vietnam conflict is ended. We recognize tha t the conflict has caused a crisis 

of conscience among people. We need to overcome the divisiveness of the war on 

our society and to mitigate as far as possible the tragic consequences of the conflict.

- 28 -
519

When the Vietnam conflict ends we urge that the ap prop ria te government 

authorities, given the power, consider the grantin g of paroles to those persons incarcerated in penal institutions for conscientiously objecting to participate in the 

selective system due to their feelings of conscience above the Vietnam conflict.

When the conflict ends, we further urge that the appro priate government 

authorities consider leniency in prosecuting those draf t resistors and deserters who 

have exiled themselves to other countries, those draft resistors and deserters who 

have gone underground to avoid prosecution and those who have committed or 

are being prosecuted for civilian acts of resistance to war.

When the war ends, we urge tha t the appro priate government and military 

authorities re-examine the dishonorable discharges given to members of the Armed 

Forces during the Vietnam conflict if such discharges were origina lly given for the 

failure of the serviceman receiving the same to cooperate or participate in the 

Vietnam conflict based upon his feeling of conscience about such conflict.

Persons excepted from our above urgings would be those persons to be 

charged with or convicted of acts o f violence whether against persons or property. 

We do not condone acts of violence.

The church has, likewise, a responsibility to the persons who fought the conflict and to the families of those killed in such conflict. Such persons and families 

must have every assistance that a compassionate church can provide. The church 

has an immediate ministry to provide pastoral care and secure other essential service for all such persons and their families through United Methodist personnel 

and cooperation with other churches and responsible agencies.

Each member of The United Methodist Church is challenged to express the 

transforming power of Christ-like love through his commitment to offer understanding and reconciliation to all persons, who have been affected by the tragic 

consequences of the war, in order tha t the healing of a divided society can begin.

1972 General Conference of The United Methodist Church voted the above two

amnesty statements printed in the "Book of Resolutions", May, 1972, Atlan ta,

Georgia.
520

UNITED PRESBYTERIAN CHURCH in the U. S. A.

The General Assembly adopted the follo wing statements and recommendations 

concerning amnesty.

In a statement on "War, Peace, and Conscience" the 181st General Assembly 

(1969) said:

"Redress — Available evidence indicates that the present adminis tration of the 

Selective Service law has led to miscarriage of ju stice in some ind ividual cases; and 

: furth ermo re, the law itse lf does not provide relief fo r those who are*morally and 

: conscie ntiously opposed to a p articular war. It is imperative that steps be taken to 

• redress whatever miscarriages of justice have occurred under these conditions as 

. soon and as systematically as possible. Moreover, amnesty fo r those whose 

' violations of law are based upon higher loyalties is a cherished possibility with in 

the American trad ition and com patible with the understanding of God as a God 

of mercy. Therefore, redress of grievances should include consideration of amnesty 

in a pprop riate cases."

In its recommendations to public authorities and the general society regarding 

pu blic po licy the Assembly —

"Asks the Congress, the President, other officials and our fello w citizens for 

reco nsideration of the plight of those young men who, in good and sensitive 

conscience, have found that the y cannot particip ate in a partic ula r war but have 

not had redress or relief under existing laws. We urge retroactiv e recogn ition of 

their claim s and reduction of punitive sentences, together with appropriate 

amnesty as soon and as systematically as possible."

181st General Assembly (1969) o f the Un ited Presbyterian Church in the U.S.A.

In t he ir 183rd General Assembly said:

"W e...........say our government's continuing m ilitary involvement in Indochina

is imm oral and unjust. Therefore, the 183rd General Assembly of the United 

Presbyterian Church in the U.S.A., affirm s its conviction that a po litica l settle ­

ment is the on ly legitimate solution of the war in Indochina. To this end, 

appreciating the fact tha t 50% of all U.S. troops have been removed fro m South

Vie tnam, we .........warn that the civil rights of dissenters are pa rticularly vulnerable

during times of national crisis and tension, and that the refore special diligence 

must be exercised by the Church, citizens, and the government to preserve those 

rights. We specifically urge Presidential amnesty fo r those who are im prisoned o r 

exp atriate fo r conscientious dissent to th is war ."

183rd General Assembly (1971) o f the Un ited Presbyterian Church in the U.S.A.
521

UNITED PRESBYTERIAN CHURCH IN THE U.S.A.

The General Assembly adopted the following statement and recommendations 

concerning amnesty:

In response to Overture 141, we know and respond to the saving love of Jesus 

Christ and therefore, we dare t o be agents for God's Love in the world.

The question of amnesty fo r those who have been in co nf lic t with the government because of opposition to the war in Indochina is much misunderstood. 

Solutions will arise as its moral and theological aspects are exploted beyond merely 

political considerations. We must regain a proper perspective and remember that 

Christ's Church has a ministry of reconciliation with justice which includes attending to opposing views.

Because offic ial American particip ation in the ground war in Indo-China has 

fin ally come to an end since the General Assembly last spoke of amnesty, we 

believe th at the re is an urgent need fo r the church to study amnesty in depth. Such 

a study should include the historical, legal, po litica l, moral, and theological 

dimensions of amnesty, stressing the unconditio nal nature of amnesty. Particular 

atten tion would be paid to all persons wh o might be affected by amnesty or 

furth er punishm ent. Study should lead to action in Christian concern to influence 

others, the media, and the government to achieve solution s that strengthen peace.

Therefore, the 185th General Assembly (1973):

A. Reaffirms the amnesty pronouncements of the 181st General Assembly 

(1969) and the 183rd General Assembly (1971).

B. Urges tha t all congregations undertake a study o f the question of amnesty 

in 1973-74 under the guidelines of this statement, using the materials now becoming available.

C. Requests the Program Agency to continue to provide adequate study 

materials and to affirmative ly communicate to the church at large the urgency of 

the need for stu dy and the ava ilability o f such resource materials.

D. Suggests that study of amnesty be considered as part of the peace 

priority program.

E. Urges all United Presbyterians to pray erfully undertake a re-examination 

of the ir views on amnesty.

185th General Assembly (1973) o f the Un ited Presbyterian Church in the U.S.A.

31-658 0 - 74 - 35
522

Mr. P oling. Yes, sir, and I would like to call to yo ur attentio n 

th at th is book includes state me nts of ap pro xim ate ly 26 natio nal bodies 

and nearly all of them call fo r an uncon ditiona l amn esty. I would 

like to express my appre cia tion to the committee for the op po rtu nity 

to testify on behalf of the Gen eral Bo ard of the Ch urch of the 

Br eth ren . Tha nk you.

Mr. K astenmeier. T ha nk you. I have only one question. You indicated th at your c hurch has ha d a numb er of mem bers who r efused to 

cooperate with the Sele ctive Serv ice System and who hav e been convicted as felons.

An d my un de rst an din g is th at because the refusal was based on 

conscientious and religious c onviction s, th at th ey o ugh t to be excused. 

Why is it t hey are felons? Is this in years p ast ? Is it the case tod ay?

Mr. P oling. It is both in the past and in the pres ent. In the pas t 

of course the re was not ade qua te legal provision fo r members who 

have beliefs such as ours and espe cially in W orld W ar I we ha d a 

numb er of men who were forced to face inc arc era tion because of 

th ei r belie fs.

In more recent times the position of the chu rch is th at we should 

conside r very caref ull y how ou r b elie fs do relat e to our responsibility 

as citiz ens and the position of our church has been th at appro val is 

given to members who choose to become conscientious objectors and 

do serve alter na tiv e service, b ut we also give gene ral support, to those 

who, because of th eir conscience, refu se to registe r or refu se to coopera te with the Selective Service Sy stem. And most of those who w ould 

have problem s would be those w ho eit her l eft th ei r alternative service 

proje cts or refu sed to coopera te in one way or an oth er or refuse d to 

ca rry a dr af t car d or som ething like that.

Ou r chu rch has support ed this as being cons istent with the church ’s 

his tor ica l policy and appro ach rega rding military service.

Mr. Kastenmeier. I yield to the gen tlem an from Massachusetts.

Mr. P rin an. I wan t to than k you for yo ur te stim ony . I think it is 

elegan t. I hop e as the weeks and months go on and we struggle with 

this problem th at you continu e to send us encouragemen t and more 

specifica lly suggestions as to how the leg isla tion can be writte n.

Mr. K astenmeier. The gentlem an from New York, Mr. Smith.

Mr. Smith. Th an k you. And than k you, Mr. Polin g, for this sta tement of th e Churc h of the Breth ren . Did I un derst and you to say th at 

yo ur c hurch did not tak e a position in reg ard to civilian service as to 

w’heth er your members should refuse such service or not? In oth er 

words, you supported both of them ?

Mr. P oling. Yes. Mr. Smeltz er, do you know when the statem ent 

was passed?

In a 1907 statem ent the Churc h of the Br eth ren does give equal 

su pp ort to those who do alt ern ati ve sen dee and those who feel th at 

it is opposed to th eir conscience to do such serv ice and refuse to comply 

wi th the law.

Mr. Smi th. Bu t it is not the official position of yo ur chu rch th at 

you sho uld refu se alter na tiv e service? It was a m at ter of the in di ­

vidu al’s conscience?

Mr. P oling. Yes; we give equal su pp ort both servin g altern ati ve 

service and ref using to serve.
523

Mr. Smith. Was your experience and the experience of your church 

during the Vietnamese war in regard to Selective Service, tha t is 

membership in the Church of the Brethren as such, was tha t sufficient basis for one of its members, who actually was a good member, 

to be granted conscientious objector status?

Mr. Poling. Yes; I am not clear on the question though.

Mr. Smith. Well, I think, for instance, if you were a member of 

the Friends or the Quakers and were a good member of the church, 

that this in itself was a sufficient basis for a local draft board to give 

you a conscientious objector status and was the same true for the 

Church of the Brethren?

Mr. Poling. Yes; it has been very often true depending to a great 

extent upon the local board. And in areas where the Church of the 

Brethren does have a strong population, the local board tended to be 

more sensitive to this viewpoint.

We have had some problems in areas where the Brethren w’ere more 

sparsely located and local boards Avere not familiar with our beliefs.

Mr. Smith. But your church has taken a stand tha t Christians 

should not participate in war?

Mr. Poling. Yes, sir.

Mr. Smith. Were any of your members who refused alternative 

service as conscientious objectors, did any of them go into exile to 

another country?

Mr. Poling. There may have been some. We are not aware nor do 

not have full information about any who were in exile or are in exile 

at the present time. I t very w’ell may be the case.

Mr. Smith. But invariably some or perhaps many of your members 

were prosecuted under the law and were convicted?

Mr. Poling. Yes; we do have members who have been convicted. 

I must add, the predominent number of them served in alternative 

service as conscientious objectors.

Mr. Smith. Most of them did?

Mr. P oling. Yes.

Mr. Smith. But a few who found the dictates of their conscience 

such that they could not even follow’ alternative service, they for the 

most part have been convicted under the law?

Mr. Poling. Yes, sir.

Mr. Smith. Thank you.

Mr. Mezvinsky. I want to thank you for your testimony and 

reiterate that I hope you keep us informed of your position. My 

only question is, was there any vote taken on conditional amnesty as 

such or did your group vote specifically on the question of unconditional amnesty?

Mr. Poling. If I can remember, the paper that we passed is substantially the paper that is present before you now. There was an 

amendment made from the floor during the debate tha t would have 

changed the paper to include conditional as opposed to unconditional 

amnesty. I am not informed sufficiently on what the vote on th at was, 

but it was defeated.

Mr. Mezvinsky. Thank you very much.

Mr. Kastenmeier. Thank you for your contribution here today.

[The statement of James X. Poling in full follows:]
524

Testimony of James N. Poling on Behalf of the Church of the Brethren

General Board

Mr. Chairm an, I am James N. Poling, of Route 1, Thomasville, Pennsylvan ia 

173(14, pasto r of the West York Church of the Brethren. Today I am here as a 

spokesman for the Church of the Brethren General Board and the roughly one 

thou sand congregations th at Board repre sents acro ss this country.

The Church of the Bre thre n at its 1973 Annual Conference voted suppo rt for 

a full, unconditional amnesty for all our citizens suffering alien ation and disadvanta ge because of acts of conscience rela ted to par tici pat ion in war. Our 

complete conference statem ent is attached and is to be considered an integ ral 

pa rt of thi s testimony. The following inte rpre tation, however, seems important 

at thi s junc ture.

I. AMNESTY FOR OUR MEMBERS

Whenever men have been dra fted into mili tary organizations in the history 

of th e United States, members of ou r church have refused to comply. Accordingly, 

following most wars, especially since the Civil War, we have had members in 

need of amnesty.

The official position of our church, based on the Scrip tures, is th at Christians 

should not par ticipa te in wa r or lear n the ar t of war.

Even with the development of provisions for civilian service by conscientious 

objectors, our church has cautioned us to put obedience to our Lord above all 

human obligations.

We have had, therefore, a numbe r of members who refused to cooperate with 

the Selective Service System and who have been convicted as felons. These and 

othe rs who h ave said “no” to mil itary service in other ways have h ad the stron g 

and official suppo rt of our denomination.

At the present time, we have members of our church who, because of the ir 

Christ ian convictions and the ir adherence to the teachings of their faith, have 

lost cer tain righ ts as citizen s of t he United States, and who need amnesty if full 

citize nship is to be restore d. For thes e members we appeal to you for total and 

unconditional amnesty.

II. AMNESTY FOR OTHERS

Our concern is not only, or even especially, for our own members. As we have 

stru ggled with the war in Sout heast Asia, we have become awa re of many others 

who have stron g and sincere convictions about war, perh aps coming to the ir 

positions from quite different backgrounds from ours. We have learn ed to have 

a deep and abiding respect for th eir conscientious beliefs, and believe that our 

nati on is stronger for their contri butio n as citizens.

Our church has strug gled to continue government recognition of religious 

convictions, and we believe one of the outs tand ing stre ngths of our natio n is 

thi s freedom and predomin ance of conscience.

As difficult and divisive as the war in Southeast Asia has been for all of us. 

it has revealed a deep stre ngth of cha racter among our citizens. Many have 

chosen suffering and reject ion in order to maintai n their integrit y of conscience.

At the pres ent time, we know of many persons outsid e the membership of o ur 

church, who because of deeply held convictions about war, have suffered an 

abrid gement of the ir rights as citizen s of the United State s. For these persons, 

especially, we appeal to you for to tal a nd un conditional amnesty.

III. AM NES TY FOR ALL PERSONS ALIENATED BECAUSE OF THE WAR

As we und erst and amnesty , it is a legal provision for restorin g the righ ts of a 

group of persons with out necessarily resolving the issue which originally caused 

the alienation , or with out placing blame or declaring tota l innocence. It is a 

legal approach which is app rop riate when reconciliatio n of persons and groups 

is a pref erab le politic al and moral altern ative to continu ed conflict and 

retri bution.

As citizen s of the United State s, we believe th at an act of reconciliation related to the war in Southeast Asia would be app ropriate at this time, and th at 

amnes ty would be an essential first step in this process.

The re are obviously many persons who are in need of restora tion of certain 

rig hts and oppo rtunities as citizens because they said “no” to the war in South ­

east Asia and became convicted felons, deserters, viola tors of the Selective Service law, or received less tha n honorable discharges from mil itar y organization s.
525

The issues which created the alienation of these persons are still being debated in our nation and are not likely to be resolved by consensus in the nea r 

future.

Because the citizens of our natio n were so divided on the issues of this war, 

it is unfair and unwise to continue the punishment of some who arriv ed at and 

acted on deep religious or moral convictions.

In order th at many persons might have the ir full oppo rtunities as citizens 

restored, and in order that our nation might make a move toward unity and 

reconciliation in these troubled times, we urge you in the Congress to authorize

and legislate a full and unconditional amnesty to all who are alienated from

our nation because o f war.

A m nest y

AN ANNU AL CONFERENCE STATEMENT

The following Statement of the Church of the Brethre n on Am nesty was 

adopted by the Church of the Brethren Annual Conference, Fresno, Calif., June, 

1973.

INTRODUCTION

There are thousands of persons today who have felt the effects o f the dividing

wall of hostility which has been generated by war. Social relationships in the 

family and between families have been damaged because persons have had different beliefs and convictions about war. Even after the wa r has been declared 

over, there remain divisions w’hich cause suffering for persons and groups in our 

society.

The Church of the Brethren rega rds this situ atio n with concern and sorrow 

not only because we believe that w ar is sin, but also because we understand that 

the gospel message can bridge the walls of h ostility which exist, between exiles, 

families, and government.

At its root, the concept of amnesty had to do with the biblical understanding 

of reconciliation. How can there be reconciliation between parents and children 

in the United States? How can there be reconciliation between the government 

and exiles? How can there be reconciliation between those with different opinions 

on war? How can we restore the unity of our nation while maintaining integrity 

both for the country and its people?

We, th e members of the Church of the Brethren, believe that reconciliation is 

most likely if the following things occur:

1. The United States Government should gra nt unconditional amnesty to all 

those who are alienate d from the ir nation because of the ir personal acts of conscience in relation to war.

2. Christians, both individually and as denominations, should became agents 

of reconciliation wherever such service is needed.

BIBLICAL BAS IS

In the New Testament, the theme of reconciliation is ce ntra l to the u nde rstanding of God’s love for persons in Jesus Christ. The gospel calls us to a ministry of 

reconciliation.

Fir st, according to Ephesians 2 :14flf, reconciliation is a gift of God. For he is

our peace, who has made us both one, and has broken down the dividing wall of

hostility . . . Through God’s action in Jesus Christ, the re is reconciliation between people while there are differences (John 10:16; Galatians 3:28). Even 

though the disagreements on many issues separ ate people within our nation, th ere 

can be reconciliation if we accept it as God’s gift.

A declara tion of amnesty follows this model. Through amnesty, a government 

can forget the legal penalties connected with th e actions of a group of persons, and 

thereby declare tha t the unity of its people is more im portant t han continued hostility and division. Amnesty can bring reconciliation even though significant differences remain on th e issues at stake, because such an action removes the punitive measures rela ted to such differences. Reconciliation is a gift of God and he 

will bring peace if we t rust him (Psalm 118:8-9).

Second, according to II Corinthians 5:18, the church is called to be an agent 

of reconciliation. (All this is from Ood who through Christ reconciled us to himself and gave us the min istry of reconciliation.} The Church of the Brethre n has 

always taken this Scripture seriously and we have set out to be reconcilers. As 

Christ was the mediator between sinners and God, so the Chuch is called to a
526

ministry of reconciliation between persons and God a nd between people in conflict w ith one another.

Whatever the government does abou t amnesty, the re will be need for reconciliation. Many men have become alienate d from the ir families and local communities and now want to be reuni ted. Many young people could ret urn home 

now with out legal difficulties, and may if they have a suppo rtive community. 

Some may decide to ret urn and face the legal penalties rather tha n remai n as 

exiles. On many levels there is work of reconciliation which could be done by 

the Church. The Scripture s lead us to such a ministry.

HISTORIC AL BACKGROUND

Througho ut its history , the Church of the Bre thre n has take n seriously the 

tas k of bringing persons together. During the Revo lutionary Wa r the Brethren 

refused to side with eith er army, but worked to brin g peace in the ir communities. It was Elde r John Kline in the War between the States who tirelessly 

rode the circ uit of reconci liation to keep persons at one in faithfu lness to Christ. 

Durin g and following World Wa r II, Brethren took in and aided JapaneseAmerican refugees. The pres ent situ atio n prese nts the Bre thre n ano ther opportunity to be involved in healin g the wounds of war and to be faithf ul to the 

min istry of reconciliation.

TH E PRE SEN T CRI SIS

The questio n of amnesty is being debated in the press, discussed on radio and 

television, and kept much alive in our nati on’s capital. Several amnesty bills 

and resolutions have been introduced since the pr esen t session of Congress began.

In any discussion of amnesty , we are talk ing about hund reds and thous ands 

who have suffered some legal disab ility because of war. For instance, tens of 

thou sand s of these persons have come out of the mil itar y service in the Indo ­

china Wa r with less tha n honora ble discharg es, have been convicted of Selective 

Service violations or have become exiles, for conscience’s sake.

CONCLUSION

Therefore, we come to these conclusions on th e question of amne sty :

1. As United Stat es citizens, we believe th at reconciliatio n is more importa nt 

for our nati on than the punitive wr ath of the law. We favor unconditional 

amnesty for all those who due to an act of conscience are alienate d because of 

war. We recommend the officers of Annual Conference make these views known 

to th e P resident and app ropriate persons in Congress.

2. As Christia ns we believe th at our mini stry of reconci liation begins now. 

"Whatever the government does, we m ust begin workin g now to bring reconcil iation between those who have become sepa rated because of the ir views on war. 

We recommend the following action :

(a ) We recommend th at our members and local congregations provide a supportive community for all persons who desire reconci liation with the ir government, families, and/o r local communities. This might involve such activ ities as 

provid ing a conte xt in which persons can talk with the ir par ents or children, 

providing a home fo r those who need a place to live while becoming r eestablished 

in a community, helping men who choose to face a prison experience.

(b ) We recommend our General Board provide program and resource s to help 

members and local congregations be agents of reconciliation for persons alien ated 

from the ir government, the ir families and /or the ir local communities. This 

might involve communication with and suppor t o f exiles and dese rter s in various 

pa rts of the world, pu blicity on ou r services, and educat ion of local congregations.

We pra y th at reconci liation can become a reality and that our natio n can become unified aroun d purposes which reflect the will of God in our time.

Adopted hy the Church of the Brethren Annual Conference, 1973.

Mr. Kastenmeier. I would like to call as the last witness, Mrs. Peg 

Mullen, State Chairman. Iowa Gold Star Families for Amnesty and 

Reverend John Smith, Professor of History, St. Ambrose College, 

Davenport, Iowa.

Both of these witnesses may come forward.

And I note you both have very short statements. I would ask tha t 

Mrs. Mullen proceed first, if you will.
527

TESTIMONY OF MRS. PEG MULLEN , STATE CHA IRMAN, IOW A GOLD

STAR FA MILIE S, ACCOMPANIED BY REV. JOH N SMITH , PRO FES ­

SOR OF HISTOR Y, ST. AMBROSE COLLEGE, DAVENPORT, IOWA

Mrs. Mull en. Tha nk you. My son, Michael Mullen, was killed 4 

yea rs ago in Vietnam by our own artillery. He was k illed, in military 

term inology, by “f rie nd ly fire” and was, the ref ore , a “nonbattle cas ­

ua lty ” because of an artil lery inc ide nt officially ref erred to as a “misadventu re” in a wa r t hat was unde clared. He was 25 ^years old.

Now, we a re a very ordina ry fam ily, we a re just simple Iow a fa rm ­

ers, and we are not hamp ere d or confused by the pol itic al consider ations, nor the political mo tiva tions, n or p olitical expediences th at you 

are, so we can speak pla inly. We know a nd can accept what you p olitician s are still sim ply unwillin g to ad mit and th at is th at the war in 

Vietnam which took ou r son was a senseless, ter rib le, tra gic blu nder 

and now we see t hat you wa nt to com pound this mis take b y punishing 

fu rthe r those young men who refused to be deluded by y our wa r from 

the beginning.

Gen tlem en, the whole Vietnam wa r was a misad ven ture. We are a ll 

its nonbattle casu alties. Only those who have lost sons and husba nds 

and bro the rs in Vietnam can un de rst an d the d epth of the a nguis h and 

the bitternes s my son ’s dea th make s me feel. I want to believe—

I des per ately need to believe th at m y son's life was not wasted, th at 

he died for some high er ideal, bu t wh at comf ort have you given me?

If Congre ss is going to insist on m isi nterpreting “ amnesty"’ as me aning to pardo n, the n the amn esty issue will rem ain too emotiona lly 

charg ed ever to be resolved. A pardo n imp lies gu ilt, and I wou ld no 

more expect a you ng m an who refuse d to kill in Vie tnam, whose pr ofou nd moral and sp iri tual opp osition to th at war lef t him no al te rn ative bu t to leave the coim try, to admi t th at he was gu ilty of a crim e, 

than I would expect C ongress, th an I would e xpect you, whose s up po rt 

of th at war pe rm itted it to endure fo r so long , at so dr ea df ul a cost 

in you ng lives, to admit th at it, too, was gu ilty of a crime.

Amnesty, in its origin al Greek, me ant forget fulness. Fo rg et th at 

these young men left ra th er th an serve. Fo rg et the dr af t inequities 

th at forces them to leave. Fo rget the lies—a nd I rep eat the lies—to ld 

you by the Presi dents , the gen erals, the spokesmen for the St ate Depa rtm en t and the Penta gon. Fo rget all the moral and philos oph ical 

dilemmas posed by the war in Vie tnam which tor e th is Na tion ap ar t 

for over a dozen years. Remember on ly th is : th e Am eric an people ha ve 

suffered eno ugh because of this wa r and we want our children home.

Vietn am ’s dilem mas cann ot be resolved, bu t only a fool still believes 

“My Country , rig ht or wro ng.” We all now un derst and th at if our 

country is wrong, we, as citizens, have an obligation to corre ct it. 

Wh o is t he more loyal ci tiz en : t he one who agonizes ove r his Na tio n’s 

policies and att em pts to change the m? O r is docile acce ptan ce of 

gov ernmental policy—no matt er how immoral and misgu ide d—the 

more acceptable, t he t ru er m ark o f a loyal citizen ? If i t is the fo rmer, 

then you can not and must not punis h those young Am eric an citizens 

whose unwillingness to take pa rt in the war in Vie tnam was based on 

a hig her sense of allegian ce and res ponsibility to Am erica’s ideals. If 

it is the latte r, if the ma rk of good citize nship is docile subm ission 

to governmental policy, then all those convicted and imprison ed and 

executed at Nurem ber g fo r wa r crim es sho uld h ave been freed.
528

In 1964 the Am erican people voted for tha t Pr esiden tia l can didate 

whom the y believe wou ld most sw iftly br ing th at wa r to a close. Six 

yea rs, 6 long years, before my son’s death an ove rwh elm ing m ajo rity 

of the Am eric an peop le expressed by th at vote the y wished no fu rth er involve men t in the Vie tnam war. If you interp ret these you ng 

men who refuse d to serve in Vie tnam as ha vin g abando ned Am eric a 

in her tim e of need, the n I ask you—d id you not, yourselves, as the 

duly elected rep res ent atives subject t o th e w ill o f th e A merica n people, 

by allow ing t hat w ar to go on and on and on, aba ndo n us in our t ime 

of need?

W ha t difference is there between a government which forces its 

dissidents to seek exile, and a government which exiles its d issidents? 

Today , Canada, Swed en, a nd Europe, the world is filled w ith a g enera ­

tio n of young Am eric an Solz henitsyns. If I am to believe th at my son 

sacrificed his life fo r some h igher ideal, if I am t o receive a ny com fort 

fro m my son’s death , the n let me believe th at he die d so th at some 

other moth er’s son, somewhere, might now come home.

Tha nk you.

Mr. K astenmeier. Fat her Sm ith .

Reverend Smith. Yes, than k you. Th e sta tem ent is b rief an d I hav e 

a sli gh t advanta ge over Mrs. Mullen and the advanta ge ove r Mrs. 

Mu llen ’s sta tem ent is th at it was wr itten in Da venport, Iow a, and it 

does reflect in par t wh at is happ en ing in th at geograp hic al par t of 

the Nation.

We urge t hat Congress n ot wait fo r th e E xecutive action on am nesty 

bu t act prom ptly to pro vid e unc onditional rel ief for the hundred s 

of tho usa nds of young Am eric ans who are fac ing c rim ina l or ad minis ­

trat iv e pen alties fo r nonviolent acts of evasion or resistance to the 

dr af t, to the military, or to the war in So uth eas t Asia.

A fter counseling hu ndred s of dr af t age Am eric ans rega rd ing their 

rig hts un de r the Selective Service System from 1967 un til 1972 we 

are overwhelmingl y convinced tha t these y oung men were actin g from 

conscience positions. Th eir fault, if any, was th at they discovered the 

terrible mistake of Vie tnam before most other Americans.

In a la rg er sense, and th is of conside rable cu rre nt concern to me I 

suppose as a teache r and as a pries t, unc onditional amn esty can be a 

muc h needed act of na tio nal reconciliation healin g th e wounds of war, 

which has seriously torn ap ar t the very fab ric of Am eric an society 

at home as well as abroad .

I f ou r legal system and ou r court procedures cannot be responsive 

to matter s of conscience and to new’ knowledge and new facts, we 

may be condemned to live throug h more Vietn am s and more Wate rgates.

So to m ake the law of ou r la nd an unn atural absolute is to make ca ptives a nd victim s of us all.

Unconditio nal amnes ty can mean the n th at we th e people, who 

make ou r laws, rea dil y assume the responsi bility of ad justing those 

laws and th ei r appli catio n to the high er dem and s of conscience and 

per son al tru thfulness. Ju dg m en t in the absolute we can leave with 

confidence to God.

May I add ju st one br ief comment, Mr. Ch airma n. It seems to me 

I would hav e to agre e with James Reston, Jr. and some oth ers who 

have suggested th at i t may well be difficult fo r us to con sider amnesty
529

outside of the very, very annoying and the very difficult position that 

our country was wrong. I know that this raises the whole issue of 

patriotism. Rut from the activity on campus, from the activity in the 

communities. I am terribly impressed th at the collapse, whether we 

call it a moral collapse or however we want to describe it, really is a 

terible flight from decisionmaking, from involvement on the lowest 

grassroots level. And part of this is due to the fact tha t we have 

made kind of a god out of our country; civil religion, if you want to 

call it tha t or not.

But I would certainly wish tha t somehow we could consider the 

possibility tha t we were wrong and tha t we could live perhaps with 

that. And in tha t context then the amnesty is above the rigor of the 

law as such. Thank you.

Mr. Kastenmeier. Thank you. I yield to the gentleman from Iowa, 

Mr. Mezvinsky.

Mr. Mezvinsky. Thank you, Mr. Chairman. I want to thank the 

witnesses from Iowa for coming here and for giving us a view from 

the Midwest.

I would like to have either witness describe a recent incident tha t 

happened in Iowa concerning a young man tha t came home to his 

father's funeral. This illustration is a good example of what this 

problem has on the community.

I would certainly like to have your comments on that.

Mrs. Mullen. Fath er Smith is more familiar with the incident than 

I am.

Reverend Smith. A young man by the name of Allen Kelley, who 

had been refused a CO classification and who went through all of the 

appeals, State and national, and finally when the issue of induction 

came he refused to be inducted and he left for Canada, recently his 

fathe r died in Rock Island, Ill., and afte r several years in Canada 

he came back—excuse me, I mean he had been in Canada for several 

years and his father died and he came back for the funeral and was 

arrested and apprehended at the time. It was made quite clear in the 

papers that the FB I do watch obituaries to keep themselves in touch 

with some of these young men.

I think what Congressman Mezvinsky may be alluding to is the 

remarkable local response as reflected in the newspapers. I t was quite 

clear after several days tha t the community was responding very 

warmly to this young man and I think it was something a little more 

than just tha t it did not seem quite cricket tha t this was the way it 

should be done, but this was really where the amnesty issue was that 

they were concerned with. These are the young men that we are deeply 

concerned about.

Air. Mezvinsky. Mrs. Mullen, in telling us of the circumstances surrounding your son’s death, you made a very eloquent statement. As 

you ended your testimony you said that you hope he died so that some 

other mother's son somewhere might now come home.

Would you care to elaborate on tha t ending and why you feel so 

deeply that there is a connection between your son’s death and the 

question of amnesty ?

Mrs. Mullen. Well, I feel that almost everyone that testified against 

amnesty continuously talks about the mothers and fathers who lost 

sons and how they feel.
530

How man y of you know how we feel ? How man y of you talked to 

fathers a nd mothers tha t act ually lost sons?

We really know the ang uish of a son bein g gone and in my heart 

I feel th at these men th at died in Vietnam, when the y died, the y are 

not th inki ng o f dy ing for their cou ntry . They are dying and fighting 

to save their own lives. They kill. My son became a kille r because he 

did not wa nt to die there. He did not become a killer in Vie tnam because of his country.

An d this is what all of you seem to forg et. Th ere a re no heroes in a 

foxhole in Vietnam . There are none as fa r as th is country is concerned.

An d the y are ju st as un pa tri otic at th at stag e as the man who ran 

away.

An d I think if the dead c ould come back from the ir gra ves, the issue, 

could be settled immed iately.

Mr. Mezvinsky. I wan t to than k you both. Mr. Ch airma n, I will 

defer any questions to m y colleagues in th e committee.

Mr. Kastenmeier. Th e gen tlem an from M assachusetts.

Mr. Drin an. I sim ply want to say, Mrs. Mullen and Fa th er Sm ith 

th at af te r a long day of testimony , this has been the most mov ing 

and the most eloquent and I do want to assu re you th at we will contin ue to try to legisla te so th at some oth er mo the r’s son mig ht come 

home and so tha t, as Fa th er Smith put it, we will not any longer m ake 

a God out of ou r co untry.

Mr. K astenmeier. Mr. Sm ith ?

Mr. Smith. Th an k you, Mr. Chairma n. I too wan t to than k Mrs. 

Mullen and Fat he r Sm ith for coming here tod ay with such moving 

testimony . T hank you very much.

Mr. Kastenmeier. Th e ct. nm ittee thanks you both for you r testimony. T his is an a pp ropr iate end ing of ou r second day ------

Mrs. Mullen. Could I say one more thing? May I please?

Mr. K astenmeier. Yes.

Mrs. Mullen. I was hopin g someone would ask me abo ut the inequities of the dr af t system . Th is is the basis of the whole thing . It 

has always been inter estin g to me in follow ing the war—an d I had 

been follow ing it long before my son died—th at not a Senator lost a 

son in Vietnam, not a Congressman lost a son in V ietn am , n ot a P re siden t lost a son in Vie tnam, no Am bassador in Vietnam. Where did 

they come from , these citize n soldie rs?

He came from the far m. H e came from th e g hetto. He came from th e 

mo untains of W est Virgini a.

I visited a lad y in West Virg inia whose son died w ith m y son. They 

lived outside o f Pitts bu rg h. It was 32 miles from the h ill to his home. 

The boy prob ably had n ot even h eard of Vie tnam. Wh en I visited w ith 

her, she told me three of those boys on the hil l had died in 90 days.

A month later T was in Wash ing ton lob bying for 609 and I spent 

quite a lot of time tr yin g to see S enato r Hug h Scott. T was unable to see 

him, b ut I did visit at len gth with a g rea t ma ny of h is aides, who were 

all very young a nd asked each and every one w hy they were n ot in the 

service and the y qu ickly sa id they ha d CO’s.

Th e boys on the top of the hiill did no t even know wh at the word 

CO mea nt. T)o vou know t ha t in the State o f Pe nnsylva nia t ha t if you 

were employed bv a lar ge in du str y, like B ethlehem S teel, Inl an d Steel, 

Allegh any , th at if you were sweeping the floor, you ha d an autom atic 

def erm ent?
531

I think these are the thing s th at you mu st realize. I f you a re askin g 

a h an dful of boys to give 2 more yea rs to th eir c ountr y, how about the 

million s of peop le who knew’ somebody ?

Th an k you.

Mr. Smith. M igh t I say som ething? I appre cia te wh at you have 

said , but the re were some Congressmen who lo st sons in this war. T here 

were a lot of Congressmen and a lot of Senators who ha d sons in the 

war. I happen to have t hre e daughte rs. Bu t the re were a lot o f peop le 

here in Congress who had person al experience of wh at th e wa r meant.

The other thing I would like to say to you is this. I hav e to agre e 

wi th you th at in many respects the Sele ctive Service law, the dr af t 

law’, w’as in equ itab le and worked ine quitably bu t it w’as I t hi nk pr ob ­

ably maybe not the best th at could be done, b ut i t was an effo rt to set 

forth national priorit ies for the vet's int ere st and the welfare of the 

Nation .

I would say th at I did serve on a dra ft board and we h ad some big 

ind ustries and nobody got an autom atic defer me nt in each case.

An d I would say, as I did say, there were many ineq uitie s. There 

can not h elp b ut be ineq uities when h um an b eings are t ry in g to run an 

im perfe ct human system . Bu t I wou ld say th at the effort was made 

and the basis for w hat were dis criminations—and there were dis cri minations—w’as b ased, as any im perfe ct system can only tr y to base it, 

on wh at t he nat ion al welfar e was, fo r instanc e, wh eth er a man was a 

doctor and so on. The ed ucation al deferm ent s, for insta nce, were based 

on the b elie f, wh eth er it was ri ght or w rong, th at an edu cated person 

would be tte r serve the welfare of t he Nation .

So I j ust want to make some defe nse fo r the system, im perfe ct as it 

may ha ve been.

Mr. K astenmeier. T his concludes t od ay ’s he arings. On We dne sday 

next at 10 o’clock in this room, 2141, w’e w ill have our th ird and final 

day of hearings on the question of amn esty . Unt il th at tim e the committee stan ds a djo urn ed.

[W her eup on at 4 :35 o’clock p.m. the subcom mittee recessed, to re ­

convene a t 10 a.m., W edn esday, March 13,1974.]

AMNE STY

W EDN ESD A Y , M A RCH 13, 19 74

H ouse of Repr esenta tives,

S ubcomm ittee on Courts, Civil L iberties,

and th e Administr ation of J ustice

of th e Com mit tee on the J udiciary,

Washin g ton, D .C.

The subcomm ittee met, pu rsu an t to notice, at 10 :05 a.m. in room 

2141, Ra yburn Hou se Office Bu ild ing , Hon. Ro bert M. Kastenm eier, 

chair ma n, p residing.

Pr es en t: Repre sen tative s Kastenmeier, Dan ielson, Dr inan , Owens, 

Mezvinski, R ails bac k, S mith, Sa ndma n, and Cohen.

Also pr es en t: M r. Willi am P. Dixon, counsel ; and Mr. Thom as E. 

Mooney, assoc iate counsel.

Mr. Kastenmeier. The subcom mittee will come to orde r fo r th is 

th ird and last day of hearings on the sub ject of amn esty and on va rious 

pieces of legislation deali ng with the subject of amn esty .

We will try to complete our hearings before the mo rni ng is out. 

Some members will be called to other mee tings, I believe. I am very 

pleased to gre et—rep res entin g th e S ecret ary of Defen se—L t. Gen. Leo 

E. Benade, who is the Deputy A ssi sta nt Secre tar y o f Defense f or Milita ry Personnel Policy. You and your associates, whom you may care 

to ide nti fy, G eneral Benade, are most welcome, and we look forw ard to 

yo ur he lp in ex pla ining the policy position of the Defense D ep artm en t 

on this very crucial question.

TESTIMONY OF LT. GEN. LEO E. BENADE, U.S. ARMY, DEPUTY ASSISTANT SECRETARY OF DEFENSE FOR MILITARY PERSONNEL

POLICY; ACCOMPANIED BY COL. VICTOR A. DeFIORI

Gen eral Benade. T ha nk you very much, Mr. Ch airma n.

I am ac com panied by Colonel De Fiori of my office.

Mr. Ch air man and mem bers of the committee, I ap preciat e the op ­

po rtun ity to ap pe ar be fore you as a rep res entat ive o f t he D ep artm ent 

of Defe nse to add ress the subject of amnesty.

Ch air ma n Ka ste nm eie r’s le tte r of Fe br ua ry 2 0,19 74, ind icates t hat 

th is subcommittee is con sidering nine leg islative item s which involve 

a varie ty of pro posals co nce rnin g pres ent and f ormer service members 

as well as civ ilia n crim ina l offenders.

Th e issue of dra ft evaders and othe r civilia n offenders is pr im arily 

withi n the purview of the De partm ent of Ju sti ce and the Sele ctive 

Service System. The pr im ary intere st of the De pa rtm en t of Defense 

is, of course, in the discussion about the im pact tha t some po ssible form 

of r elief fo r military offenders, princ ipally deserters, will have on our 

ability to main tain a responsive figh ting force.

(533)
534

As lawy ers, the members of th is co mmittee will ap pre cia te the definitio nal difficulties enc ountered in any con sideration of the amnesty 

question. Co nsequently, w ith respect to m ilitary d eserter s, I wo uld like 

to establ ish mv un de rst an din g of the d efin itions of amnesty and par ­

don in this context an d to review the histo ry of the appli catio n o f these 

concepts to m ilitary deserters.

Amnesty is a sove reign act of forg iveness fo r pa st misc onduct, 

gran ted by the State to a person or class of perso ns. Th e gr an t may 

be conditione d upon the perfor ma nce of an act or acts within a pr escribed time. Am nesty usu ally has the effect of releas ing a person or 

class of pers ons from criminal conviction, a record of conv ictio n, and 

the rem ain der of any pun ishme nt. Sometimes it is effective befo re a 

tria l h as begun.

Pa rd on is a somew hat d ifferent concept as I und ersta nd it. A lthough 

pardon may release an ind ividual from a penalty for a legal tran sgression , it does not alter the underly ing criminal conviction. Pa rdon 

may be g ranted to any offender and is usually given af te r punishm ent 

fo r a crime has begun.

Th ere have been no cong ressional gr an ts of amn esty fo r military 

deser ter ’s in ou r Nation ’s history .

Presiden t Thoma s Je fferson actin g under h is constitution al power to 

gr an t repriev es a nd pard ons f or offenses aga ins t the U nited States used 

th at pow er fo r the first tim e with reg ard to deserters in 1807. He 

gran ted pardo ns to indivi duals who h ad d eserted from the A rmy during the 1795 Wh iskey Rebellion, if they surre ndere d them selves within 

a pe riod of 4 months.

Th roug h the years there hav e been othe r P resid en tia l pro clamations 

issued, gener ally a fter a war, w hich gr an ted p ard on s to deserters. H ow ­

ever certa in stipu lat ion s or con ditions were prescribed, such as (1) 

des erters in confinement were to be released and ret urne d to du ty ; (2) 

deserters at larg e, and under sentence of death , were to be discha rge d 

and never aga in enli sted in the service of the co un try ; (3) deserte rs 

who ret urne d were to fo rfeit all pay a nd allow ance s d ur in g th eir time 

of absence; (4) des erte rs who ret urned were to m ake up lost time by 

th eir absence and complete th eir terms of m ili tary oblig atio n, and (5) 

deser ters had to surre nd er themselves within a specified time a fter the 

pro clama tion.

Th ere has been no general amn esty gran ted to ind ivi duals who deser ted du rin g World W ar I, Worl d W ar II, or the Korea n conflict.

Al tho ugh a 1924 pro clama tion by Pr esiden t Calvin Coolidge is 

sometimes cite d as a general amn esty granted to des erte rs, it only 

appli ed to those ind ivi duals who had deserte d af te r the Arm istice 

of Worl d W ar I, and only restored their r ight to citizen ship w hich ha d 

been forfe ited upon t he ir conviction. Th is pro cla ma tion was pro mp ted 

as a result of a law enacted by Congress in 1912 which pro vided th at 

deserters would fo rfe it th eir citizen ship. A sim ila r pro clama tion ap ­

plyin g to peacetime de serters was issued b y President Trum an in 1952.

Th ere have been some misunders tan din gs with respect to the function of the Trum an Board which was appoint ed in 1946. Th is threemem ber board was a ppoin ted to consid er amnesty for 15,805 convicted 

vio lators o f the Selective Tr aini ng and Serv ice Act. Th at Board conduc ted an i ndividual review o f each case, an d recommended i ndividual
535

pa rdo ns in 1,523 cases. The Tr um an Bo ard did no t conside r cases 

inv olving m ilitary deserters.

The position of th e D epart ment of Defense is not gr ounded in vengeance, vind ictiv eness or retribu tio n, bu t ra th er in our conviction th at 

any amnesty for deserters would be detrime nta l to the mo rale and 

disc ipline of the Arm ed Forces, and impact adversely on o ur nati on al 

security.

One of th e most complex aspe cts of cu rre nt discussion on thes e sub ­

jects is th at o f th e numb er o f persons who m ight be affected by various 

prop osals. There are, as of December 31, 1973, 28,661 d ese rters from 

the military services at larg e, inc lud ing 2,099 who are known to be 

residing in foreig n countries. In this con text, an absentee is classified 

as a deser ter fo r ad ministrativ e purposes whe n he has been absent 

wi tho ut leave for 30 consecutive day s, or he has gone to a foreig n 

cou ntry, or the fact s a nd circum stan ces indic ate th at he may have committed the offense o f desertion. Also to be conside red are th ousan ds of 

dra ft e vaders, a nd those who have been prosecuted in recent ye ars f or 

desertion, related military offenses, or dra ft evasion.

Th ere have, however, also been millions of young men and women 

who have served in th e A rmed Forces in recen t years. Ov er 2% m illion 

members of the Arm ed Forces serve d in Vietnam. Dur ing the period 

1964-73, more th an 1,800,000 men were in ducte d in to the Arm ed Forces 

and hundred s of t housa nds more were mo tivate d by the pos sibility of 

induction to vol unteer for enlistm ent. Al tho ugh some served reluctantly, the vast majority —over 95 percen t—se rved honorab ly and 

well, and were discha rge d under honorab le conditions. A gr ea t many 

Vietnam vetera ns are s till servin g in the Arme d Forces. We m ust not 

forget the 46,000 who died, the 300,000 who were wounded, those who 

were captu red , and those who are missing , and the many fam ilies in ­

volved. The De partm ent of Defense appre cia tes a nd admires th e ga llantry , fortitude and courage o f th e men and women who accepted and 

hon ora bly fulfilled th ei r obligations and responsibilitie s to ou r country . Special tri bu te is due to those who suffered dis ablin g wounds in 

combat, and yet g reater t rib ute is due to those who g ave their lives or 

who are m issing in the service of th eir country.

Of the measures which this subcomm ittee is consider ing two (Ho use 

Co ncurr ent Resolution s 144 and 385) are con sistent with the present 

views of the De partm ent of Defense. They are identic al reso lutions 

which oppose pardo n, repriev e, or amn esty for Sele ctive Serv ice Act 

violators an d military d ese rter s who fled to a fore ign coun try.

Th e other measures, thr ee of which are identic al (H .R. 236, H.R . 

3100, a nd II.R. 5195) are rep res entative of a varie ty of amnesty proposals which ran ge from complete and unc onditional amn esty for all 

classes of offenders a nd for offenses sometimes only remotely re lated to 

wa r pro tests, to lim ited amn esty pro posals cond itioned on com pletion 

of m ilitary or al ternate p ublic service.

The De partm ent of Defense supp orts the position of the admi nis ­

trat io n which has consistently opposed a g ra nt o f amnesty. Th is position is based on a beli ef th at the g ra nt in g of a mne sty as c ontem plated 

by the various bills before you w ould have a seriou s de trime nta l imp act 

on the mo rale and discipline of our Arm ed Forces. In addit ion , it would 

establish an un des irab le preced ent which would dang ero usly i mpa ir the 

effectiveness of any future ind uct ion syste m and under mine the U niform Code of M ilitary Jus tic e establishe d by th e Co ngre ss.
536

Co nside ration of amn esty now presum ably migh t not include those 

whose offenses have been com mitted since the ter mination of Un ited 

State s pa rti cip ati on in Vietnam hostilities, and the ref ore, might not 

necessa rily encourage desertio n in our present peacetime envir onm ent. 

How ever, the preced ent for the future stil l would be troubling. 

W he ther our m ilitary were man ned wholly by volu nteers or au gme nted 

by inductees in a fu ture combat, service mem bers would certainl y be 

less h esi tan t to des ert if they f elt th at they could do so w ith rea sonable 

confidence th at once the conflict was over the y would be granted immunity from laws req uirin g prosecution and pun ishme nt.

Th e m ilitary de ser ter has a direc t effect on th e A rmed Forces because 

he is no t present to perfo rm the job f or w hich h e was tra ined and his 

place must be filled by someone else. The deser ter not only avoids his 

du ty as a citizen, bu t he violates an oath tak en upon en ter ing service, 

and he violates the law. A gr an t of amn esty would undermine and 

could destroy the value and san ctity of thes e obligations, oaths, and 

laws. The De pa rtm ent of Defe nse agrees with the ad minist ratio n’s 

view th at the continued va lid ity of these obligations, o aths, and law s is 

esse ntia l, and th at any action, however lim ite d or well-intentio ned , 

which detracts from th ei r efficacy is und esirable, and dan ger ous to 

the security o f the Nat ion.

I t is in the national inter est and desirab le from the De pa rtm en t’s 

po int of view to encourage th e return of all unautho riz ed absentees as 

soon as possible. Su bstan tia l num bers of deserter s, includ ing some who 

fled to foreig n countries, hav e alr ead y ret urne d volunta rily, su rre ndered themselves and face d the consequences of th ei r action. Co ntrary 

to the impression th at some would foster, the military cou rt ma rtial 

system as well as our ad mi nis tra tiv e discharg e system has not acted 

in a c apricio us or ar bi trar y ma nner in these cases. Th ere is, o f course, 

a wide ran ge of acti ons ava ilab le to com manders, va rying from immedia te return to duty to tria l and conv ictio n. The reason fo r this 

divergency is sound and logic al, a nd in the best tradi tio ns of th e A me rican jud icial system. Ea ch ind ividual is t reated as an ind ivi dual, and 

his case is separately considered on its me rits in acco rdan ce with due 

process.

I t is im po rta nt to keep the motives of military des erte rs in prop er 

pers pective. There is a con notatio n presen t, at least in the con text of 

some amnesty proposals, th at all or most mili tary deserters absented 

them selves in order to avoid service in V ietn am. Th is, of course, is not 

tru e. Our data ind icate th at t he grea t m ajority of in div iduals dese rted 

fo r one or more of th e reasons t ha t sold iers have deserte d throug ho ut 

histo ry—such as person al, fam ily or financia l reasons—and no t to 

prote st th e w ar o r to a void haz ard ous duty in Vietnam.

In this reg ard, it might also be useful to note th at the leg itima te 

and sincere c onscientious object or, inc lud ing the objector whose beliefs 

did not crystalize un til af te r his e ntry into active m ili tary sendee h ad, 

and still has, the alter na tiv e of claiming conscientious o bjector sta tus 

and seek ing discha rge or nonco mbatant duty. His alt ern ati ves were 

not, an d are not, limited to disobedience or desertion.

My rem ark s th us f ar have been directed at the m ili tary offe nder an d 

I should like to cover one more point befo re moving briefly to the top ic 

of the d ra ft evader and th e co nditional amnesty proposals.
537

Some of the bills (H .R. 236, H .R. 3100, H .R. 5195) wou ld pro vid e 

for the g ra nt of an u pg rad ed discha rge to any person w ho received a 

discharg e other th an hon orable if the un de rly ing acts which formed 

the b asis for the dischar ge were mo tiv ate d by the individu al’s opposi ­

tion to Un ite d State s involve men t in Ind ochin a. Aside fro m the vir ­

tually impossible tas k of p rovin g mo tivation long a fter th e fac t, such 

a pro vision of law would eng ender an extrem ely complex and costly 

administ rativ e burden .

Th roug ho ut th e De pa rtm ent o f D efen se, every effo rt has been made 

to insure th at the system of issuin g chara cte rized discha rges includes 

pro ced ura l safeg uards to guara nte e th at an in dividu al’s righ ts are 

ade quately pro tected and th at th e ch arac ter of a discharg e acc ura tely 

reflects the quali ty of an individu al’s service. Fu rth ermor e, the re are, 

pu rsu an t to Federal statute, D isc harge Review B oards and Boards for 

the C orrection of M ilitary Records in each M ilitary D epart ment. The 

existing review board system has ade quate au thor ity to correct any 

erro r or to c ure any i nju stice which m ay h ave occurred in an in div idu al 

case. A suggestion t o place discharg e review au thor ity in an Am nesty 

Commission or some other special body concerned only w ith the review 

of Vie tnam era discha rges is ine quitable wi th respec t to veterans of 

form er a nd futur e p eriods.

Tur ni ng to the dra ft evaders, I feel com pelled to mention the obvious. For every indiv idu al who chose to evade or violate pro visions 

of U .S. law requ iri ng service to ou r country , someone else was called 

to tak e his place—and some of those, no doubt, also were ju st as re ­

lu ctan t to pa rticipate in a war. But they serv ed th eir cou ntry. Some 

suffered te m po ra rily ; some suff er pe rm an en tly ; an d some died.

The De partm ent agre es w ith th e a dm inist ratio n’s view that a mnesty 

for dra ft eva ders is no t equitable. Th e alt ern ati ves were cle ar at t he 

tim e a choice was mad e and an indiv idual should be req uir ed to face 

the consequences of the choice he m ade. As in the case of de serters, t he 

De partm ent o f Defense is concerned also about the ab ility of the Selectiv e Serv ice System to f unction effectively in any f ut ur e conflict s itu atio n which might require ind uct ion . Am nesty fo r d ra ft evaders, ei the r 

con dition al or unconditio nal, could establish a dangero us preced ent 

which could result in encoura gin g fu tu re dra ft violation s in the expec tation of subsequ ent exoneratio n.

Th e De partm ent is also opposed to the pro posal s which w ould pr ovide amnesty on the con dition th at the dra ft evader pe rfo rm some 

alternate form of service or now serve a per iod in the Arme d Forces. 

Those who were ind ucted and those whose enlistments were dra ft 

mo tivated might well have pr eferred the op po rtu nity to serve in a 

civ ilia n cap aci ty in a public service activ ity , bu t th at alternative was 

not available to them un de r the laws the y obeyed.

I t is also our view th at substitution of mili tary serv ice in lieu of 

prosecutio n and possible pu nis hm ent fo r a cri minal vio lation is un ­

acceptable. Suc h a pra cti ce wou ld equ ate mili tary service wi th penal 

servitude and this is con tra ry to th e histo ry and tra di tion of o ur cou ntr y which holds hon orable mili tary serv ice to be a citize n’s d uty and 

privile ge. The De pa rtm en t o f D efen se and the M ili tary Service s h ave 

long sought to ter mina te the objection able pract ice of some cri mi nal 

courts and pro sec uto rs which has pe rm itted alle ged cri minals to escape pro secutio n by en lis tin g un de r duress. Such e nlistm ents are con3 1 —60 S O- ’74 --------3 6
538

tr ary to service regula tio ns an d a re not knowingly allowed by the milita ry departm ents. Ce rta inly the y are d etr im en tal to the Na tio n's c urrent desire to build a pro fessional volun teer force of h igh caliber and 

high m otivation.

It is conceivable th at some des erte rs and dra ft e vad ers migh t elect 

an amnesty option con ditioned on a period of mili tary service. Deserters, howev er, alread y have an ob ligatio n w hich rem ain s un fulfilled, 

and the D epart ment o f D efen se does no t w ant o r need d ra ft evaders in 

its ran ks. In many cases, the pa st acti ons or such person s strongly 

ind ica te th at th eir p otentia l for useful service is limited and that th eir 

relia bility and mo tivation are extrem ely suspect. Th eir insta bil ity in 

this rega rd, and in fac t, th ei r mere presence in the ran ks wou ld have 

an adv erse effect on the morale and ded ication of o the rs servin g with 

them . Th ey migh t well become a s afe ty risk to them selves and others 

and could jeopar dize the ability of t he un its in whi ch the y served to 

com plete th ei r missions successfully.

Th e De pa rtm ent sha res the admi nistr ation view th at it wou ld be 

co ntrary to the sec urity intere sts of t his country to establ ish a precedent which recognized selective obje ction to pa rti cipa tio n in a par ­

tic ular national emergency, regard less of the specific motivation. The 

unc ondition al amn esty pro posals could have this effect. I t would be 

equally unwise to pe rm it an indiv idual to pick and choose eit he r the 

con ditions or the time of his service in situatio ns which require legal 

induction. Th at, too, could be the res ult of the con ditiona l amn esty 

proposals.

Mr. Ch air ma n, the De partm ent of Defense welcomes tho roug h and 

delibera te con sideration of all the complex issues invo lved in th e proposals before the subcomm ittee. We recognize th at both the ad mi nistration and the Con gress wish to supp ort a pos itio n con sistent both 

with the dem ands of natio nal security and with the requirem ents of 

ou r Na tio n's his tor ic jud icial processes rec ogn izin g the rig hts of 

ind ividuals.

Gentlem en, th at concludes my prepared rem ark s. I will be pleased 

to a tte mpt to a nsw er yo ur questions.

Mr. Kastenmeier. Tha nk you, G eneral Benade.

When you men tion in term s o f discussion of legislation t hat the twTo 

House concurrent resolution s were con sistent with the views of the 

Defense De partm ent, I w onder are you aware t hat the J us tic e Dep ar tme nt does not supp ort those reso lutions sayin g th at the y migh t be 

troublesom e, they may hav e some constitu tional inf irm ity ?

Gen eral B enade. If the y a re s ubject to some constitut ion al infirm ity, 

Mr. Ch air ma n, the n no, I am no t qualified rea lly to spe ak to th e consti tutio na l deficiencies, if any , in the bills. The po int th at I sou ght to 

mak e was simp ly t ha t the concept o f opposition to amnesty, as I un de rsta nd it , is co nsistent w ith the Defense D ep artm en t and adm inistrat ion 

position.

Mr. K astenmeier. I th in k they tak e the position, and the y may be 

wrong, of course, when the y say the Congres s ought not act on the 

question, even in the c onte xt o f these resolutions.

General Benade. I see.

Mr. Kastenmeier. You men tioned an undesirable pre ced ent th at 

might be set if a mne sty were g ranted de serters. Y ou briefly go th roug h 

the histo ry of amnesty in this country an d certa in forms of amnesty 

th at hav e been gran ted here and abroad . Do you have any cases in
539

mind where amn esty has, in fac t, un de rcut morale here or abroa d in 

terms of th e armed forces in a countr y ?

Gen eral Benade. No, sir, I do not have a specific c ountr y in min d. I 

think it is, however, M r. Ch air ma n, a se lf-evide nt pro position . I th ink 

I am perso nally tro ubled most by the fac t th at from the discussio ns 

th at I have read, and I appre cia te the opposing views on each side of 

this question, the re is, as I ind ica ted in my statem ent, the con notation 

th at all deserters deserte d because of mo ral scru ples ag ain st the war. 

Altho ugh the da ta that we have, M r. C hairm an, are necessarily limited ,

I think it would be usefu l to conside r, fo r e xam ple, such d ata as we do 

have w hich indica te so f ar the reasons f or desertion . T he best example 

is throug h the per iod Ju ly 1, 1966 to December 31, 1973, we ha d a 

total of 4,194 deserters who wen t to foreig n countries. Now, of th at 

num ber, 1,413 have alr eady returned to mili tary control. Some have 

been discharg ed in absentia, 662 to be exact, and in each case we re men 

who were aliens and who r eturne d to the c ou ntr y o f which the y were a 

citize n. Th ey were, the ref ore, discharg ed in absen tia af te r the y had 

been gone more than a year.

As I ind ica ted in my statem ent , 2,099 are at lar ge in foreig n countries. Now, I think it is s ignific ant, Mr. Ch airma n, th at o f those who 

did go to foreig n cou ntries we trie d to determine the reasons f or th ei r 

desertion, an d g oing to the fo reign countr ies. I n abo ut 45 perc ent of th e 

cases the re was no evidence th at could be fou nd th at the ind ivi dual, 

pr io r to his desertion, ha d e xpressed scruples or concern o r objection to 

the U.S . involvem ent in Vietnam . So, it is an unknow n. Tha t factor 

may h ave been there, but the re is no w ay to establish it.

Now, alm ost 10 percent, 9.6 perce nt to be precise, were deserters who 

had escaped fro m confinement and who were u nd er c harges for othe r 

offenses, and who deserte d ra th er th an face tri al or punishm ent ; 4.4 

per cent deserte d because of fam ily, financia l, or person al rea son s; 5 

percent deserte d because of an inab ility to ad just to m ilitary life ; 2.6 

percen t claimed conscientious objector or pacifist be lie f; eigh t-ten ths 

of 1 perc ent were living with an alie n spo use; one-h alf of 1 percen t 

admi tte d a fear of being ki lled ; a nd only 3.6 p erc ent had establis hed 

objections to the Vietnam war. I t is th is kin d of th in g th at I th in k 

makes it troublesome , Mr. Ch air ma n, and I th in k we all hav e to be 

awa re of it. You can not gen eralize on th is sub ject and feel th at all 

des erte rs deserte d fo r th e single reason of mora l scruples.

Mr. Kastenmeier. Yes, of course. We un de rst an d th at not all deser ters are a ntiw ar or mo tivated by antiw ar views solely or exclusively. 

And, in fac t, some p erh aps n ot at all. But, I am intere sted in t he p rec ision of yo ur figures. Ac tua lly you are rel ying on what field commanders re port ; I tak e it ?

Gen eral Benade. We are rel ying on inv est iga tions th at were conducted in each and every case, Mr. Ch air ma n. We have some ra th er 

det ailed requirem ents a nd in the case o f ind ivi duals who desert to fo reign cou ntries an exh austive inv est iga tion is conducted. It includes 

review of the imm ediate circ ums tanc es, inte rviews with the ma n’s contem poraries, his fellow soldiers, interv iew s with fam ily and friends, 

and the colle ction of inform ati on from any source which migh t help 

shed lig ht on the reasons why the ind ivi dual deserte d to a foreign 

cou ntry.

Mr. Kastenmeier. And do I un de rst an d yo ur s tud y disclosed th at 

less than 5 p ercent of all deserters were mo tiv ate d by an tiw ar views? 

Is that w hat it shows ?
540

General Benade. Tha t is what the data indicate, yes, sir, Mr. 

Chairman.

Mr. Kastenmeier. And 95 percent were motivated for other 

reasons ?

General Benade. No, sir, I did not want to say that. As I indicated 

at the start, in about 45 percent of the cases we were unable to establish any reason whatsoever. There was no prior indication by the 

individual, for example, to his fellow soldiers, or in communications 

to his family or to friends that he was going to desert for a particular 

reason. There was just no indication. But, of those, of the remaining 

50-some-odd percent, the breakdown is essentially along the lines that 

I just gave to you, sir.

Mr. Kastenmeier. I see. Many of them, I take it were, a very large 

percentage, you just were not able to ascertain what motivated their 

desertion?

General Benade. Yes, sir. About 46 percent we are not able to determine the reasons.

Mr. K astenmeier. One implicit inconsistency in your testimony is 

suggested by the fact that no amnesty was given to those who deserted 

during World War I, W orld W ar I I, the Korean war, so there was no 

precedent set, you might argue, to encourage desertion during the 

Vietnam conflict. And yet the rate of desertion during Vietnam was 

triple, I understand, the highest rate even during the Korean war, 

and much higher than any of the other conflicts. So that our failure to 

grant amnesty for a p rior war did not have the effect of discouraging 

•desertion in Vietnam, presumably.

General Benade. I think tha t is a very important point, Mr. Chairman, and I would like to address it in detail. I think it is very important to put in perspective what the desertion rates are, and what 

they were during the Vietnam war and how they compared with past 

periods. If you will bear with me a moment.

Mr. Kastenmeier. Yes. I would be very surprised, I might say, if 

the th rust of your statistics is to suggest that they were comparable or 

less.

General Benade. They certainly are not greater, Mr. Chairman. 

I think there is a tendency to think tha t the desertions during the 

Vietnam war were out of sight in comparison to any past period in 

history. Not at all. We do attribute some of the increased rate, of 

course, to the increased incidence of drug abuse, and so th at contributed a great deal to it. We also think tha t the prolonged nature of the 

Vietnam war, of course, was a contributing factor also as compared 

to previous conflicts. But, over a 10-year period, as I say-----

Mr. Kastenmeier. The statistics that I have is th at the Pentagon 

reported over 500,000 cases of desertion during Vietnam.

General Benade. No, sir. Over that period tha t would be true, but 

I think you would find in the 10-year period preceding that that we 

also had about the same rate, amazingly close. [Subsequently, General 

Benade corrected this statement to read in pa rt: but I think you 

would find in the period preceding that including World W ar IT tha t 

we also had about the same rate, amazingly close.] In fact, I will give 

the precise statistics here and provide them for the record.

Mr. K astenmeier. Maybe we can return to those statistics. We can 

accept the thrust of what you say, and then we will accept the statistics 

a bit later.

General Benade. I will provide them for the record.
541

[Subsequently, the following statistics were supplied for the 

record:]

DEPA RTM EN T OF DEFEN SE

DES ERTIO N RA TE (UN AUTHORIZED AB SENC E OF 30 DA YS OR MORE)

Army Navy Marine Corps Air Force

World War I I, calendar year—

1 9 4 2 . . . . . . . . . . . . . . . . . . . . . . . . . . .............. ( ') 5.5 27 .3 (’ )

1 9 4 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (>) 3.1 <8 .8 (’ )

19 44. .. . . . . .. . . _______ 63.0 3.0 <6 .9 (’ )

1945.................................................... ............. _______ 45.2 3.5 <5 .4 ( ’)

Korea, fiscal year—

1 9 51 .. .._____________________________ .............. ’ 14.3 3.1 10.1 (<)

1952____________ ____________________ 22.0 6.2 19.7 (•)

1953.............................................. ................... .............. 22.3 8.7 29.6 (>)

1954_____________________ . . . . . . . . . .............. 15.7 6.9 • 2.2 (*)

Vietnam, fiscal year—

1965.............. ....................... ......................... _______ 15.7 6.7 18.8 0.39

1966........................................... ........ _______ 14.7 9.1 16.1 .35

1967.................................. ________ 21.4 9.7 26.8 .42

1968 . . . . . . _____ 29.1 8.5 30.7 .44

1 9 6 9 _______________ . . ____ 42. 4 7. 34 40.2 .63

1970.................................................... ......... .. ________ 52.3 9.9 59.6 .80

1971..................................................................________ 73.5 11.1 56.2 1.5

1972........................ ........................................ _______ 62.0 8.8 65.3 2.8

1973............................................ .............. ............... 52.0 13.6 63.2 2.2

Fiscal year 19747...................................... . ........... _______ 

* 23 20. 8 10.0 44.0 1.3

> Data not available.

3

 Dec. 1, 1941, to Jun e 30,1 942.

3 A ir Force did not become a separate service until 1947.

< Fiscal year.

’ Calendar year.

’ July 1953.

’ 1st half fiscal year 1974 (Dec. 31,1973 ).

• 5 mo. (e.g ., as of Nov. 3 0,19 73).

Discussion: Desertion— The term used herein has no legal sign ifica nce. When an individual has been absent without 

authority for 30 days or more, he is administratively classified as a deserter. Only after an individ ual is convicted of the 

charge of desertion can the term “ deserter” be applied in the full legal sense. Desertion rate—Rate per 1,000 average 

enlisted monthly end strength.

Note: Calendar year—Jan. 1 to Dec. 31. Fiscal year—July 1 to June 30.

DEP ARTM ENT OF DEFEN SE

AB SE NT EE IN CID EN T RA TE (A BS EN TE E IN CIDE NT S OF LE SS TH AN 30 DA YS )

Army Navy Marine Corps Air Force

World War I I, c alendar y e a r -

1942 ..................................................................................

1943 ..................................................................................

1944 ..................................................................................

1945 ..................................................................................

Korea, fiscal y e a r1951 ...................

1952 ...................

1953 ...................

1954 ...................

© (*) ( ’

:*) © (*) c

') © (*) c

*) ( ') (*) ( ’

Vietnam, fiscal y e a r1965 .......................

1966 .......................

1967 .......................

1968 .......................

1969.......................

1970 .......................

1971 .......................

1972 .......................

1973 .......................

Fiscal year 1974».........

(*) 28.4 © (*>

181.0 31.9 (>) 62.0

158.0 36.3 Q 58.44

115.3 37.6 (*) 38.3 2

60.1 26.8 © 2.9

57.2 29.2 © 3. 3

78.0 22.4 © 3.6

89.7 14.4 © 3.6

112.3 13. 54 (*) 4.4

132.5 17.5 174.3 5.9

176.9 19.0 166.6 9. 4

166.4 18.3 170.0 17.2

159.0 21.7 234.3 16.1

<6 2.9 10.0 143.0 9. 0

> Data not available.

2 Air Force did not become a separate service until 1947.

3 1st half fiscal year 1974 (D ec. 31,19 73).

< 5 mos (e .g., as of Nov. 30,19 73).

Disc uss ion : Absentee incident rate—Rate per 1,000 average enlisted monthly end strength. 

Note: Calendar year— Jan. 1 to Dec. 31, fiscal year—July 1 to June 30.
542

Mr. Kastenmeier. I have one oth er question before I yield to my 

colleagues, and th at is pe rta ining to classific ations of disc harge. One 

of the criticisms a rise s because th ere was dis crimination and veterans 

were earm ark ed by v irt ue of the classification system on th eir dis charge 

certificates. Man y peop le seem to be unaw are th at the re is a coding 

system. I am not c lear on when i t was first inaugu rated o r why. W ha t 

pur pose does it serve?

General Benade. Mr. Ch airma n, we have ha d chara cte rization of 

discha rges fo r many, m any y ears in the Arme d Forces. In fac t, it ha s 

its ori gin in Revolution ary W ar d ays, and the system of chara cte riz ­

ing the type of discharg e essentially alo ng the lines as is now done 

began abo ut 1841. W hen the ind ividual is issued his d ischarge certifi ­

cate, he is, at the same time, furni shed a repo rt of s epara tion, as it is 

called, which is identified as a D epart ment of Defense Form 214. T ha t 

for m con tain s a sum mary of his m ilitary service. It reflects the tra in ­

ing th at he was given, schools th at he has com pleted, skills in which 

he was fou nd qualified, a wa rds an d decoration s w hich he earned , othe r 

relevant da ta, and the reason fo r disc harge.

Now, it used t o be, up until abo ut 1952, th at the reason fo r di scharge 

was sta ted in na rrativ e form . Then in order to try to mi tig ate any 

adverse effect to people who were be ing discharg ed fo r less th an ho no rable service, so-called SP N numbers, which is an abb reviati on for 

separation pro gra m num ber, replace d the na rra tiv e. Th erea fte r you 

ha d to refer to a reg ula tio n to see wh at the number was, and the 

numb er stood fo r a certain reason fo r discha rge, expir ati on of term 

of service, convenience of the Government, ha rdsh ip, discha rge d to 

reenlist, and so on.

Now, in the gr ea t majority of cases, in fact 95 per cent essentially, 

peop le are discha rged fro m the service with honor able discharg es. 

Th e problem arises with th at small perce nta ge who are discha rge d 

fro m the service fo r reasons less th an h ono rable, and t he S PN n um ber 

is the reason why he was discha rged from the service. Bu t, this concep t of reflecting the ma n’s service and prov idi ng him with the dis ­

cha rge which reflects the chara cte r of service and the reason for 

discha rge is practic all y as old as the Arme d Force s themselves, sir.

Mr. Kastenmeier. I realize that the so-called medical disc harge 

or general discha rge and so fo rth have a lon g history. Bu t, the 

cod ing system which ind icates an ind ivi dual may be difficult to contro l, or a homosexual or som ething else, I was not awa re of. Th is is of 

recent vin tage, is it not, the coding system ?

Gen eral Benade. Yes, sir. It began abo ut 1952, sir. It was in 1972 

th at the last of the na rrativ e des criptions were, used, but actua lly the 

cod ing system h ad been in use f or some tim e be fore th at. Bu t, I em phasize, Mr. Ch airma n, eit he r you have a numb er or you have the reason 

sta ted e xplicitly in words. The result is th e same. Bu t use o f t he num ­

ber had its sole pur pose in an attempt to help the ind ividual. It is 

im po rta nt to keep in min d th at you hav e two document involved. One 

is a disc harge certficate itself. Tha t does not have a ny thing on it with 

resp ect to num bers or reason for discha rge. Then there is anoth er 

form , the D epart ment o f Defense Form 214, which reflects such thi ng s 

as the trai ni ng the man received, the skills, schools attended, and the 

reason for the discha rge.
543

Now, pr ior to the use of this code num ber, the specific reason for 

discha rge was set out. If the man was bein g released from the service 

because of unsuita bil ity or misconduct or whatever, it was stated in 

words righ t on the De pa rtm ent of Defense Form 214. A t least by 

havin g the code num ber, you help ed to pro tec t the privacy of the 

ind ivi dual.

Mr. Kastenmeir. W he the r th e code num ber or not, is that ge nerally 

ava ilable to prospectiv e employers and other s?

Gen eral Benade. No, sir. No, s ir, it is not. In t he first place, it is up 

to the man as to wh eth er or not he wants to pre sen t th at form to a 

prospectiv e employer. That form has only the code n um ber on it, as I 

say, with respect to the reason fo r disc harge. The man him self knows 

the reason for his disc harge. He can eit he r tell his em ployer or not tell 

him, as he sees fit, or he need not present the form if he does n ot wa nt 

to do so. The military servic es will not release to an employer the 

reason for the ma n’s discharge unless the ind ividual him self requests 

th at th at infor ma tio n be m ade available.

Mr. Kastenmeier. T ha nk you. I yield to the gen tlem an from Ca lifornia, Mr. Danielson.

Mr. Danielson. At some point in your testim ony you comm ented 

th at one conside ration th at we m ust keep in mind is th at if deserte rs 

re tu rn to military con trol, and commence or embark upo n the comple tion of th eir obligation, th is sometimes has an adverse effect upon 

the m orale of their c omrades, th e oth er mem bers of the ir un its. I s t hat 

supp orted by f acts based upon those who ha ve r eturne d to service a fter 

ha vin g deserted du rin g th e V ietn am conflict?

General Benade. Si r, if I migh t cla rif y, I believe you will find 

I was refe rrin g to dra ft e vaders, because in the case of deserters, when 

des erters retu rn to military con trol , each case is the n handled on an 

ind ividual basis. Some have been freed of all cha rge s and ret urne d to 

duty. Others hav e been given confinement fo r sh ort periods. Others 

fo r lon ger periods. Confinement gener ally depends on the len gth of 

the absence and the circumstances. Th ere are many times mitiga tin g 

circu mstances . Th e confinem ent may be as lit tle as 6 mo nth s or less. 

Ot he r cases have been given 6 or 12 mon ths. Ot he r cases 12 or 18, 

and so on. Bu t, man y of those men have been ret urne d to duty. My 

rem ark s were not aim ed at the des erte rs as such.

Mr. Danielson. All rig ht. Th e man has now return ed to duty. 

W ha t impac t or w’ha t effect has this had upon the morale of his colleagu es, his comrades, the oth er members of his un it?

Gen eral Benade. Those w’ho have been returned to d uty M r. Da nielson, and w’hose chara cte r of service ind icates th at the y desire to be 

rehabilitate d, and the n serve faith fu lly , are no problem. Th e problem 

is with those who do not wish to be rehabilitate d, who do no t wish 

to continu e to serve. Most of those ind ivi duals wou ld be give n a discha rge from the service.

Mr. Danielson. I am in fe rrin g from wh at you state, th at there 

is n ot a morale problem amo ng the o the r m embe rs of th e forces which 

is occasioned by the retu rn to service of people who have deserted 

or who have at one tim e been evaders ?

Gen eral Benade. I think the im po rta nt dis tinction, sir, is th at of 

those who have ret urne d vo lunta rily to military con trol, and who
544

have been tri ed , if th at was ind icated , or who were given adminis ­

trative pun ishme nt, must be distinguish ed fro m ind ivi duals who retu rn to service not of th ei r own volition and who are no t con tinuin g 

in service because the y wish to be in service and wish to be reha bilitated. Th ere is quite a difference.

Mr. Danielson. Are the re some in this la tter catego ry? Are the re 

some such military pers onnel, the ones you just desc ribed?

Gen eral Benade. I can only rep eat what I said before, sir, th at of 

those who have ret urned to military con trol , we have some who have 

been retai ned in service. They have been rehabilitate d. The y desire 

to continue.

Mr. Danielson. All rig ht. Th inking of th at category.

General Benade. All rig ht , sir.

Mr. Danielson. W ha t adve rse effect, if any , has th ei r return to 

service had upon the un its to which they were assigned, upon the 

personnel with whom the y serve?

General Benade. Of those who ha ve been reta ine d, I would say none. 

But the majority have been released af te r the y hav e served whatever 

sentence was imposed.

Mr. Danielson. I t hink then the proper inference is those who have 

been returned hav e had no adverse effect on morale.

General Benade. That is rig ht, sir.

Mr. Danielson. On pages 3 an d 4 of you r statem ent , you state, commen cing at the bottom of page 3 where you are refe rrin g to sim ilar 

pro clama tions of amn esty applying to peacetime deserters issued by 

Pr esiden t Trum an in 1952, and then at the top of page 4, you ref er 

to the board Presiden t Tr um an appointed in 1946. Those are two separate categories of activitie s, are they not?

Gen eral B enade. Yes. Tw o separate.

Mr. Danielson. They are no t one an d th e same ?

Gen eral B enade. No, sir, two separate .

Mr. Danielson. Tha nk you. Th at is all of the questions I have.

Mr. K astf.nmeier. T he gen tlem an from Illino is, Mr. Railsback.

Mr. Railsback. Gener al Benade, how man y people claimed conscientious objector sta tus in the Vie tnam conflict? I noticed, and let me 

refer you to page 9 of your st ate me nt, where you say,

In thi s regard, it might also he useful to note that the legitimate and sincere 

conscientious objector, including the objector whose beliefs did not crystalize 

until after his entry into active m ilita ry service, had and still has the alte rnative 

of claiming conscientious objector sta tus and seeking d ischarge or noncombatant 

duty.

I am wo ndering if you can give us the figures on th at. How many 

peop le af te r induction into the service actua lly claimed conscientious 

objector status , and wha t hap pen ed to them ?. I am intere sted in wha t 

happened to them.

Gen eral Benade. Yes. sir. I can provide th at , and I will be gla d to 

pro vid e for the record details for each year from 1965 into 1973. And 

I will not try to read all of those figures to you righ t now, but I will 

be ha pp y to give you some ex amples of illu str ati ve years.

Going back to 1965, which is the first year here. 669 such application s 

were received.

Mr. R ailsback. How many? I ’m sorry. I did not he ar your comment.
545

General Benade. Six hundred and sixty-nine applications were submitted from men in service for conscientious objector status. O f those, 

335 were approved for noncombatant assignments; 109 were approved 

for release from service; 225 were disapproved. So the percentage of 

approval in that year was 66.4 percent.

[Subsequently, the following table on conscientious objectors was 

furnish ed:]

DEPAR TMENT OF DEFENSE: CONSCIENTIOUS OBJECTORS— STATUS OF IN-SERVICE AP PL IC AT IO NS FOR 

DISCHARGE OR NO NC OM BA TA NT SERVICE

Total

ap plications

rec eived

1- A-O

ap prov als

(n onco mba ta nt)

1-0

approvals

(d isch ar ge )

Nu mbe r

disapp roved

Perce nt

ap provals

of

ap plications

Ca len da r ye ar :

1965 i .................................. ...................... 669 335 109 225 66. 4

1 9 6 6 '2................................. ...................... 383 31 84 268 30 .0

1967 2 ________________ ......... ........... 928 162 71 596 28 .2

1968..................................... 1,3 87 555 169 663 52 .2

1969..................................... ...................... 2,55 6 657 438 1,461 42. 8

1970..................... ............... ___________ 3,19 6 697 937 1,5 62 51.1

1971................................... 4,3 81 781 1,9 84 1,6 16 63 .1

1972..................................... ___________ 2,67 3 222 1,8 44 607 77.3

1973 3_ ................................ 932 112 645 175 81.2

1

 1965 data inclu de s Arm y 1-A-O ap plications fo r Fe bruary 19 64-Sep tembe r 1966 and Marine Corps 1-A-O and 1-0 

ap plications fo r Ma rch 1965-Decem ber 1966.

2

 App lic at ions from Arm y Reserves not on ac tiv e du ty repo rte d fo r fiscal ye ar in lie u of calend ar ye ar.

2

 1973 d ata rep resents first half of ca lend ar ye ar 1973 and does not inc lude p en ding ap plications .

Mr. Railsback. You mentioned 109 were released from service. 

What kind of a discharge would they get?

General Bexade. They would have gotten a discharge under honorable conditions based on the character of their sendee. The certificate 

would be either an honorable or general discharge.

Mr. Railsback. Could you get us those figures as well, in other words 

tell us what kind of discharges they got?

General Bexade. We can try, sir. I am not sure, because in each 

case we will have to go back and do an individual records search. That 

is the only wav we can really know.

[Subsequently the following was supplied:]

The Services have been requested to research the ir records and provide representative statistics rela tive to the type of discharge certificate (honorable or 

general) provided to persons discharged as conscientious objectors. These will 

be provided to the Committee when compiled.

Mr. R ailsback. What might be helpful, instead of going back over 

all of the years, if you could take, say that particular year, I think it 

would help us to get a feel of what happened to those people that 

were simply released.

May I ask in respect to the coding, which I frankly did not have 

any knowledge of until I heard somebody testify the other day, first 

of all, let me just ask you this : Do you have the SPN numbers on 

honorable discharges as well as dishonorable?

General Bexade. Every discharge. Every man who is discharged 

receives the form, the DD 214, on which there is a reason for the 

discharge.
546

Mr. R ailsback. I hav e a g rea t deal of difficulty un de rst an ding what 

purpo se th at n um ber serves, pa rti cu larly on somebody who has gotten 

an hon orable disc harge. W ha t purpose does th at numb er serve?

Gener al Benade. W ell, in the case of the hon orable discha rge , Mr. 

Railsba ck, it serves as imm edia te reference and identificatio n fo r the 

indiv idu al as to the reas on fo r his disc harge. Now, obviously the 

man-----

Mr. R ailsback. Ev en if he has been given an honorable discha rge?

Gen eral Benade. Yes. Well, if he has an hon ora ble d ischar ge, th ere 

is no prob lem. Th at has nev er been a problem.

Mr. Railsback. W ell, wh at fu tu re use, what fu ture use is made of 

th at num ber? W ha t help can th at be to the servic e, sir , or how does 

it help?

Gen eral Benade. Well, it certa inly continu es fo r sta tistic al pur - 

poses and ana lysis purposes withi n the De pa rtm en t of Defense. It 

serves a wo rth wh ile purp ose. Now, it can be left off. U nd ersta nd me, 

sir. It could be lef t off in the case of ind ivi duals who hav e an honorable disc harge. Bu t the problem, you see, is how do you recognize 

hon orable service and disti ng uis h it from service which is not ho norable, if you put the reason only on those who receive a less th an hon orable discha rge?

Mr. Railsback. Can I sugg est to you th at at this pa rtic ul ar time, 

those of us th at hav e been invo lved in pen al reform are concerned 

about the fac t th at some State s hav e licensing laws, fo r instance, th at 

prevent somebody th at has been an ex-offend er from g ettin g a job. A nd 

wre are concerned th at this may com pound th at individu al's problem 

and actua lly prov oke him into ha ving to com mit anoth er offense in 

order to make a living. M y feeling is I questio n wh eth er or not only in 

the case of h onorable disc harges, I really question wh eth er th at could 

possibly have any kin d of a beneficial effect as fa r as th at pa rti cu lar 

ind ivi dual is concerned, or as fa r as the service is concerned, pa rticularly whe re he may be asked to pro vide his DD 214. Is it not the 214 

form? In oth er word s, I just hon estly have a gr ea t dea l of difficulty 

with this. I can see where maybe the service, some where in t he service 

files th at would neve r be mad e ava ilable to anybod y else the service 

could hav e a use f or th at. Bu t I am not even sure a bou t tha t. But an yway, I do not see where it could have any beneficial effect at all as 

fa r as th at ind ividual is concerned, and pa rti cu larly in a case where 

he has been given an honor able discharge. It jus t seems to me th at 

if some emp loye rs, as has been alleged, rea lly can decode th at , and 

use th at in deter mi nin g wh eth er to h ire an indiv idu al th at may have 

ha d some prob lems, I jus t th ink th at it rea lly is a most im pro per 

pur pose fo r it. An d you ind ica ted th at you th in k we could do away 

with it,

Gen eral Benade. No. I am saying, Mr. Railsb ack , th at we ha ve not 

had prob lems, and I doub t if a form er serviceman who h as received an 

honor able discha rge, has a problem based on an hon ora ble discharge. 

Th ere are some cases, of course, of an ind ividual who can receive an 

honor able discha rge but fo r an unfav ora ble reason. For example, an 

ind ividual who is bein g discha rge d fo r dr ug abuse. Now, he may still 

receive an honor able discha rge , but he is being dis charg ed fo r drug 

abuse. Now, th at is a fac t, and th at is the reason why he was 

discha rged.
547

Mr. Railsback. Why pu t th at on his record, though, if it is not 

to be given to an employer? I do not see any pur pose. Th e way I und ersta nd y our reg ula tions are th at an ind ividual need not. o r you assume 

th at he need not provide that to a future employe r. An d the re are 

reg ula tions th at really are supp osed to pro tect from the employer 

bein g able to get that inf orm ation. Bu t, as a pract ica l matter, the n, 

why have it on th ere at all ?

General Benade. W ell, perha ps I can tu rn it aro und, sir. I do not 

want to be con tentiou s about it. Thi s is a problem we have str ug gled 

with for several yea rs, pa rti cu larly because of the inc rea sing concern 

of some Members of Congress.

Now, I pu t it to you, sir, ou r problem is th at we wa nt to recognize the fact th at we thi nk the m an who serves fa ithf ul ly and honorably deserves a public testim onial to th at effect. Now, so long as we 

do th at , we are anxious to su pp ort the overw helming majo rit y of 

people who do serve honorab ly and well, and whose discharg e reason 

is a fav orable one. We have not been able to devise a way to tak e 

care of the 5 percent who are d isc harged un de r othe r th an honor able 

conditions, and at the same tim e not degra de the ch arac ter of the 

discha rge and the reason. Most men are prou d of the reason they are 

disc harged . Th eir certifica te says th at the y are discharg ed because 

they com pleted th eir ter m of service honorab ly and fa ith fu lly , and 

the y want th at.

Mr. Railsback. I un derst and th at , but I t hink rea lly it is a co ntradiction to have in the regula tions th at this inf orma tio n is no t supposed 

to be made ava ilable to anyone a nd ha ve em ployers who know th e code.

Gen eral Benade. If you will forgiv e me, sir, it is im po rta nt to be 

acc urate now. We do not say th at it is not sup posed to be show n to 

anyone else. We give t his record to the man. Now, wh at he does with 

it th erea fter is his own determination.

Mr. Railsback. I rea lly doubt, Gener al, wh eth er a lot o f men even 

know about this SP N num ber, but may be some employers do.

General Benade. If you will for giv e me again , sir , every man th at 

leaves th e service is tol d the reason fo r his sep ara tion. Ev ery man 

th at leaves the service.

Mr. Railsback. I rememb er ge tti ng an honorab le discha rge, bu t I 

sure do not know if I had a SP N numb er or not.

General Benade. Well. I do not know when yo u were in the service, 

sir. but I am sur e you were tol d the reason fo r yo ur sep ara tion.

Mr. Railsback. I was given an honor able discha rge, b ut as I un de rstood it, the re can be some people who have been h onora bly disch arged 

th at have a SP N numb er th at is kind of derog ato ry.

General Benade. I t is possible. I used an illus tra tio n of a m an who 

has been giv en an honorable discha rge but who is bein g released from 

the sendee because of dr ug abuse. Now, he is tol d th at reason.

Mr. Railsback. I s the ind ividual who is give n a derog ato ry SP N 

numb er given any rig ht to question th at num ber?

General Benade. Yes, sir. Yes, sir. Th ere is a very elaborate procedure. If the committee desires me to go into detail. I will be gla d 

to, or I will be gla d to furnish fo r the reco rd the reg ulati on s which 

control it.

Mr. Railsback. Well, th at is all I have, Mr. Ch airma n.
548

Mr. Kastenmeier. Yes. Just to follow up very briefly on that, 

because it seems to me we are dealing with two different things here, 

you say th at the mail is told why he is being discharged, but you did 

not say that he is told tha t he better watch out for his SPN number 

because it could be anything from unfitness, inaptitude, shirking, and 

lying, or uncleanliness, bedwetting, or unsuitability. It could mean 

those things and many other things. Does he in every circumstance 

know tha t tha t number discloses that?

General Benade. Sir, I believe tha t he does. But I certainly—the 

man is told his reason, and he is told it is going to be on this record 

of his service. I t is not on his discharge certificate, it is on the record 

of service. Now, as I said, before we used the numbers, the reason was 

there in words.

Mr. Kastenmeier. I agree, I think, with the implication of Congressman Railsback’s questioning, and that is that these numbers serve 

no public purpose that I can see, because again there is a separation. 

You suggest that many desire that it be known that they have served 

honorably. Tha t is very well tha t they have an honorable discharge. 

Others do not. They may have a general discharge or a medical discharge, but tha t in and of itself ought to be enough. Why the spelling 

out of the personal characteristics of this in coded form of some sort ? 

I think that is the point we are making, and while it comes up in the 

context of forgetting or forgiving in these hearings, in terms of stigmatizing individuals in connection with past service, I think it is a 

very good question.

I yield to the gentleman from Massachusetts.

Mr. Drinan. Thank you, Mr. Chairman.

General, 2 years ago you testified in the Senate th at “It is wise that 

consideration of amnesty for deserters be deferred until some future 

time until the requirements of Vietnam have passed.” And when I 

reviewed th at a few days ago I thought tha t perhaps now th at the 

requirements of Vietnam have passed, you would say tha t the time 

has come to consider amnesty. Would you want to comment on that?

General Benade. Yes; I did so state in testimony before the Senate 

subcommittee on this subject sir. At tha t time, however, I did not, 

certainly, mean to imply tha t the Department of Defense favored 

amnesty or the other measures that I have addressed this morning.

Mr. Drinan. What did you mean? You said that, “When the 

requirements of Vietnam are passed, it would be wise to have consideration,” or at least th at consideration be passed upon or deferred 

until tha t time. I assume that tha t time has come. The requirements 

of Vietnam have passed.

General Benade. Yes, sir. The requirements of Vietnam have passed, 

and I think now is the time perhaps for the Congress to meet this 

problem head on and to consider both sides of it. In my view several 

years ago, sir, the emotions still ran high, and while we had men in 

combat and men still dying, it just seemed inappro priate to be discussing amnesty or the pros and cons of it.

Mr. Drinan. Would you change your position now if the President 

changed his position?

General Benade. The view that I have expressed to you is my personal opinion, and it is not colored by any stand that the President has 

taken, sir.
549

Mr. Drixax. Would you answer the question? Would you change 

that position if the President changed his position ?

General Bexade. No, sir, because w’hat I just expressed was a personal position, and it is not affected by what the President thinks.

Mr. Drixax. Has the Pentagon ever acquiesced in amnesty, for 

example, at the time of Trum an’s Review Board? Did the military 

say maybe it is a good idea, or did they oppose it openly or nonopenly ?

General Bexade. I cannot state of my own personal knowledge, sir. 

My impression is tha t the Defense Department at tha t time did not 

object to the establishment of the procedure President Truman set up.

Mr. Drixax. To repeat my question, in another form, therefore, 

can we expect th at the Pentagon will not oppose some consideration 

of amnesty if the President proposed ?

General Bexade. Would you repeat that, sir?

Mr. Drixax. If the President changed his position, can we assume 

tha t the Pentagon will also change their position?

General Bexade. Yes, sir; I think so. The President is the Commander in Chief and-----

Mr. Drixax. Thank you very much.

Going back to the code numbers, General, I have seen these code 

numbers in Red Cross manuals, and in the Sendee Manuals of the 

Veterans of Foreign Wars. How can you say that this is a confidential 

matter when any employer can find out exactly what these numbers 

mean?

General Bexade. It is for tha t reason, sir, tha t we have again 

changed the lists. They are labeled “ For Official Use Only,” and there 

will be an entirely new list established July 1, of this year.

Mr. Drixax. And what type of security is there guaranteed tha t 

these same individuals will not get that? I assume that this code is 

given to the person leaving, is it? If he is told why he is being dismissed, then he must get the code, right?

General Bexade. He can see the code number.

Mr. Drixax. He goes away with the sheet of paper with the next 

list of numbers?

General Bexade. No. Not the total list, sir. He has only his own 

discharge certificate. He has been told the reason for his separation. 

When he looks at the form in tha t section which says reason for separation, it w’ill have a number, tie it 115, or 123, and he know’s the reason.

Mr. Drixax. General, I have found tha t you come here really without the key facts. You make a case that anybody in service can, in 

fact, apply for conscientious objector status, and then when you are 

asked for the key facts on how many applied and how many were 

granted, you sav that you can furnish them, but really, this is the key 

question. And I do not want to go back and have you recite those, 

because I want to study everything that you will give to us. But, it is 

my experience, and it is considerable, tha t in service CO status is 

very difficult to obtain. Virtually no one acquires it or even applies 

for it. It seems to me that you vastly overstate your case when you 

say that they can simply routinely go and request a CO status. That 

I do not think is really true.

General Bexade. Mr. Drinan, may I interject at that point?

Mr. Drixan. Yes.
550

Gen eral Benade, I th in k you mis understood my answer, s ir. I have 

the figures and the da ta rig ht here, and I said I would be happ y to 

fu rn ish them com pletely fo r the reco rd ra th er th an rea d them, so I 

would be ha pp y to go rig ht now throug h each year.

Now, let me say one othe r thi ng , sir. T do no t mean to imply th at 

obtai nin g conscientious objector sta tus is easy. It is not easy. And I 

did n ot mean to imply that. Bu t, t he tests a nd th e pro cedures th at are 

follo wed in the m ilitary services a re c ons istent with co urt decisions on 

the subject. Th e services utiliz e the tests th at hav e been lai d down by 

the courts an d the procedures followed by th e Sele ctive Se rvice Sys tem 

itse lf. I believe there has been a conscientious effo rt to adh ere t o the 

lette r and th e spirit of the law and r egu lation s on th at , sir.

Mr. Drin an. T he way T rea d your p ap er on page 9, you do make it 

easy, and you say th at —

In thi s regard, it might also l»e useful to note th at t he legitimate and sincere 

conscientious objector, including the objector whose beliefs did not crystalliz e 

until his entry into active military service had, and still has, the alternativ e of 

claiming conscientious objector sta tus and seeking discharge or noncombatant 

duty. His alternative s were not, and are not, limited to disobedience or desertion.

You do mak e th is is a legitimate, easily ava ilab le a lterna tiv e. And in 

rea lity, and I think you have pra cti cally conceded th at this is very 

difficult, very difficult, and real ly impossible in m ost cases, because you 

suggested t hey do not com ply with the law, and the law is very, very 

narrow.

Gen eral Benade. Mr. Dr inan, may I ju st recite for you since you 

hav e ra ised th at , in 1969 and 1968, let us tak e those 2 years, because they 

were practic all y the he ight of ou r Vietn am involvement when our 

casualties were runn ing at th ei r highest. T wou ld like to give you the 

figures f or those years, sir.

In 1968, we received 1,387 applicat ion s for conscientious objecto r 

status. 555 were appro ved fo r nonco mbatant duty. 169 w ere appro ved 

for disc harge. 663 we re dis appro ved, so th at t he per cen tage of those 

app rov ed was 52 percent.

In 1970, the re were 3,196 a pp lic ati on s: 697 were appro ved for noncom batant du ty ; 937 were appro ved for discharge; 1,562 were dis ­

app rov ed. The percen tage o f appro val was 51.1 perc ent.

Now, it migh t be, sir, t hat you feel th e p erc ent age of ap pro val might 

be a gr ea t deal high er.

Mr. Drin an. Gene ral, that, is not my difficulty. My difficulty is the 

infinitestimal num ber th at ap ply . In 1968 there were 500,000 men alone 

in Vietn am , a nd many more in no n-V ietn am posts, an d only 1,387 even 

applied. Now, I know how difficult it is even to g et the form s, and to 

have these peop le go throug h, and I would be intere sted to see how 

many officers wer e among th e 1,387, and how m any black people w ere 

among them.

On anoth er point. General, it seems to me th at yo ur argu men t cuts 

both ways. 7 on say th at fa r less than 5 percen t of all people in the 

military ever thought of ap plying for conscientious objector status. 

If this is so. and you gave it as a figure of 2.6 percen t who had 

app lied or tho ught about it, why are you so appre hensive th at 

this small gro up if, in fact, the y did get some form of a mnesty—tha t 

this small gro up would disrup t the Army, th at it would be dangerous 

foi national sec urity? It would have all of these horrendous con-
551

sequences to the security of the Nation that you pose here. Does not 

your argument cut both ways? You are telling us there are only a few 

involved. If there are only a few why are you so concerned 

about it?

General Benade. I am concerned. Mr. Drinan, because the principle 

is what is important.

Mr. Drinan. What is the principle?

General Benade. The principle, sir, is what I tried hard to make 

clear in my statement. The number of 28.000 men is not, in and of 

itself, a threat to this Nation’s security. "What does represent a threat 

is a precedent that in the future men can desert the Armed Forces, 

particularly in times of combat, with the expectation tha t they can 

lie exonerated from t hat offense a t the cessation of hostilities. That is 

our concern, sir.

Mr. Drinan. Going back to the point raised by the chairman, you 

gave no satisfactory explanation of that. The number of deserters 

through the Vietnam era was high, according to the way I read it, 

and you were going to rebut that, but we did not get back to those 

statistics. Now, of the 28,000 deserters, you say that 2,099 of the 

deserters are at large in foreign countries. Well, if you have heard 

information on that, where are the other 26,000 ?

General Benade. We do not know, sir. The number tha t we have 

identified in foreign countries are those where we have pretty concrete evidence th at they are, in fact, residing in the foreign countries. 

There might be more. It has been our experience, sir, that it is d ifficult for an individual to reside for any great length of time in a 

country of which he is not a citizen. Usually the individual will come 

to the attention of the foreign government because of the need to apply 

for work permits, or to obtain employment, or he will come to the 

attention of the American Embassy, or the Consulate officials.

Mr. Drinan. Do you have law enforcement officials, civilian or military, tha t track the activities of these individuals if, in fact, they 

return to the United States? For example, we had testimony here the 

other day that a bov returned from Canada for the funeral of his 

father, and tha t he was apprehended at that time. Does the military 

work in collaboration with civilian law enforcement officials to track 

down these people ?

General Benade. Yes, sir. From the time th at an individual is classified as a deserter, there is a notification to civilian law enforcement 

authorities, including the Federal Bureau of Investigation.

Mr. Drinan. Are those who go to a foreign land treated more 

harshly than those who remain in the United States?

General Benade. Not to my knowledge, sir. As I indicated each case 

is considered on an individual basis when they return to military 

control.

Mr. Drinan. That statement lacks some credibility in view of what 

Senator Taft revealed here the other day, the complete disparity in 

the criminal sanctions given to various people, that in various Federal 

courts the discrepancy is just alarming. Senator Taft testified tha t 

in 1962. only one of 2i8 Selective Service defendants in Ohio received 

prison sentences, and yet in Minnesota, 47 out of 141 defendants 

received prison sentences. I assume the military makes some recommendation. Do you have any comment on that ?
552

General Benade. No. I cannot speak, sir, with respect to the disposition of draft evaders. The best way, I think, that I can answer 

your question, sir, is to try to show you what has happened specifically to those deserters who have returned to military control from 

foreign countries, and I would be speaking from a factual basis, and 

not conjecture. I can tell you that as of December 31, 1973, of individuals who have been tried by courts martial, and I am speaking now 

of 669 cases, 268 were sentenced 1 to 3 months of confinement ; 251 

were sentenced 4 to 6 months of confinement; 93 received 7 to 12 

months; 23 received 13 to 18 months; 23 received 19 to 24 months 

of confinement. Six received sentences between 21 to 36 months; four 

received a sentence from 37 to 48 months, and only one individual 

received a sentence of 49 months or more. Xow, that is he actual disposition of the cases tried by court martial.

Mr. Drinan. Very interesting. I do not know what they prove, 

though. You give them to me, and they are out of a record, but I do 

not know what they prove. I will study them.

General Benade. As T understand your original point, you were 

inferring, if not stating, that there is some extrao rdinary penalty 

which is levied upon those who have gone to foreign countries?

Mr. Drinan. Precisely.

General Benade. And I have recited for you the statistics of the 

actual disposition of those cases of individuals who deserted to foreign 

countries and then returned to military control.

Mr. Drinan. I would have to compare them to the ordinary person 

who returns to his unit and is reassigned to his unit without really 

any penalty except maybe the matter of discharge.

General Benade. Weil-----

Mr. Drinan. That is the question. You are admitting that you 

have no answer. I say that you are penalizing the people that go 

to foreign countries, and that the punishment they get is disproportionately large compared to those that remain AWOL for a 

time and then return to their unit.

General Benade. Well, again, sir, T do not mean to be contentious.

Mr. Drinan. T wish you would be, because I want the facts.

General Benade. I was replying directly to you with the fact of 

the actual cases.

Mr. Drinan. General, they do not prove anything, is my point. 

And my contention is you are penalizing the people tha t go abroad, 

and you are assimilating or reassigning the people who stay AWOL 

in America, and then come back, and they are reassigned to their 

units. All I am saying is you are making a crime of going abroad, or 

making it a very severe thing.

General Benade. I disagree with that, sir.

Mr. Drinan. All right. T wish you had some fact to base your 

disagreement on.

One last question. You say that a person resists and the Army 

policy is not to take any person back into the armed services who has, 

in fact, been a draft resister. As you know, a lot of people are 

opposed to that particula r policy, and th at some people feel that after 

all there is a moment of repentance for him. But, you allege that these 

dra ft resisters have a certain instability. Would you say t ha t about 

an individual who applied for a CO status and it was denied, as many
553

of them are, because he simply does not qualify with the law? Tha t 

he does, not have a religious or moral philosophy against all wars, 

and if he is a selective CO, he will not get tha t status? Would you 

say about a boy like that, who now is no longer a dra ft resister? Would 

you say that he has instability in his character because he did not want 

to fight in Indochina?

General Benade. No, sir.

Mr. Drinan. Well, how can you, therefore, keep him out of the 

military ?

General Benade. I have absolutely no problem distinguishing 

between them, sir. You are going to have two kinds. You have the one 

who might have applied for conscientious objector status with the 

Selective Service System prior to his entry. His own neighbors will 

say they did not find adequate grounds to accept his contention. Now, 

that individual comes into the service. I respect him and-----

Mr. Drinan. He is a draft resister. He says I cannot coerce my 

conscience, I am not going into the service, and that, I think, that I 

have to resist, and he is a draft resister. He does not allow himself to 

be inducted. Later, assuming then he wants to serve his time, and the 

Army policy, as I understand it, is that he is barred forever—we do not 

want him because he has instability in his character. Tha t is what I 

think that you said.

General Benade. First, let me say, all four of the services are unanimous in their desire not to accept individuals into service who previously had evaded the draft laws. Now, I am not quite certain what 

the point.is you are trying to get at with me, sir. I want to respond.

Mr. Drinan. The point is this, sir, that you are saying in your statement on page 12 that the Department of Defense does not want or 

need draft evaders in its ranks, and you are saying tha t we do not want 

or need some of the most conscientious, moral young people in the 

country.

General Benade. Mr. Drinan, I appreciate the fact tha t there are 

different reasons for people resisting. You are evidently able to reduce 

it to terms that I am not able to accept. You evidently have no doubt 

in your mind that every one of these young men who resisted the draft 

was motivated only by the highest of reasons.

Mr. Drinan. I did not say that at all, General. I did not say that.

General Benade. The inference, I think, sir, is there.

Mr. Drinan. It is the minority of the people who resisted the draft 

that were of this conscientious objector status, and I am talking about 

them and only them.

General Benade. I started to say, sir, in my own mind, and I speak 

now as an individual, I can sympathize and I can h urt for the young 

men who resisted the dra ft because of moral or religious principles. 

I am sorry tha t such a young man was not able to make his case on a 

conscientious objector basis because I think th at is what the law provides for. I would feel badly if he was not able to establish that. But, 

I cannot accept a generalization. If it was not your intention to generalize, then I withdraw my comment, sir.

Mr. Kastenmeif.r. Has the gentleman from Massachusetts concluded his questions?

Mr. Drinan. Yes. Thank you.

Mr. Kastenmeif.r. The gentleman from New Jersey.

31- 658 0 — 74-------37
554

Mr. S andmax. General, who sits on the board that approves whether 

or not the conscientious objector application will be approved?

General Benade. After the young man has filed his application, sir, 

the procedure in general calls for a hearing officer to be appointed. 

That officer would be in the grade of capitain or higher. After he has 

examined all documents tha t the young man has submitted, interviewed the men and received such proof as can be adduced with 

respect to the young man's claim, he prepares written recommendations. Xow. approval authority is vested in the Secretary of the Department concerned. He may delegate that approval authority down 

to an officer exercising general court martial jurisdiction. This is 

usually an officer in the grade of major general or higher. Approval 

can be granted at the lower level where the authority has been delegated. Disapproval must come up to the headquarters of the depa rtment concerned, and the final decision to approve or disapprove is 

then made at that level.

Mr. S andman. To those who have the authority to approve or disapprove, are they all members of the military ?

General Benade. The secretaries of the services are civilians, sir.

Mr. Sandman. And the decision th at they make, is it based upon a 

moral principle or a moral belief, or what is it ?

General Bexade. The decision to approve or disapprove?

Mr. Sandmax. Yes; to q ualify what must the individual show?

General Bexade. The. regulations, sir, are written to take into account the definition of conscientious objection as defined by the Supreme Court in its latest decision, which no longer requires th at the 

individual hold a religious belief. I cannot quite quote the words of 

the Supreme Court decision, but it says in effect, if an individual 

holds such belief, and it does not have to have a religious basis, but 

such th at it would not give any rest to his s pirit or his mind, this is 

considered to be a sufficient basis. The burden in the military services’ 

as it is with the man who applies for conscientious objector status on 

the outside, is on the individual. He must prove that he comes within 

the ambit of the law and of the decisions of the Supreme Court.

Mr. Sandmax. M ell, under that definition, if an individual applied 

for conscientious objector status on the grounds that it was against 

his moral conviction to take part in the conflict in Southeast Asia, 

would a determination on that issue entitle him to classification as 

conscientious objector?

General Bexade. I do not believe so, sir, because I think the Supreme 

Court decision precludes an individual from picking and choosing 

which wars he will fight in.

Mr. Sandman. I have no other questions.

Mr. Kastexmeier. The gentleman from Maine. I think the was the 

first one here this morning, and has been very patient.

Mr. Coiiex. Thank you, Mr. Chairman.

General, what is your impression or opinion of success of the volunteer Army, to date?

General Bexade. I think that the Army is making excellent progress, 

Mr. Cohen. It has some problems. I think they will overcome them.

Mr. Cotiex. In terms of numbers, are they at acceptable levels, or 

are they below acceptable levels, in your opinion ?
555

Gen eral Benade. Th e Army has been falli ng s ho rt in term s of its 

overall goals, Mr. Cohen. Bu t, expressed as a perce nta ge of total 

str en gth, it is not a signific ant concern. I th in k the m ain p roblem is to 

assure th at you have the requisite quali ty and also th at you are g ettin g 

young men who are capable of ge tting into the ha rd er and more 

tech nical skills. Tn other words, you need both num bers, and you need 

quality.

Mr. Cohex. A nd I ju st wanted to cla rif y it fo r myself. I think you 

ind icated th at pa rt of the reason ing in yo ur obje ction to any sort of 

amnesty would be t ha t this wou ld have a detrime nta l or a dele teri ous 

or ha rm ful effect upon people who might be called upon to serve in 

future wars. Wo uld you antic ipa te if the Un ite d State s should become involved in a future conflict, th at we w ould have to resort to the 

dra ft once again , or would the pro gre ss being made by the volunteer 

Army be sufficient to carry th at out?

General Benade. W ell. Mr. Cohen, I do no t th ink th at we can ever 

make an assu mption th at we will never again fight in a wa r, or if we 

ever fight aga in in a war, th at the sta nd ing forc e in being at th at 

time would be sufficient.

Mr. Coh en. Let me just in te rrup t for a second. W ha t are the pe rcentages at the time of wa r com pared to the dr af t, the draft ees, and 

those who volunteer, for example, in the Second Worl d W ar? Do you 

have the perc entage s of those who volunteered and those who were 

dr afted ?

General Benade. No ; Mr. Cohen. Bu t, T can say, fro m pers onal 

knowledge and recollection, th at we went in with the Army and Air 

Force combined, and I th ink th eir s tre ng th in th e l ate 1930’s was about 

133,000 to 134,000. Of course, we went to 12 m illion men and women 

under arm s when we reached ou r max imum str en gth in 1944. As 1 

recall enlistm ents were even suspended f or a w hile an d the whole man ­

power was pr ovide d by the Selectiv e Service System .

But, what make s it so difficult, sir, is th at you cannot really have, 

with any assuranc e, figures as to the so-called tru e volun teers as compared to those who were dr af t mo tivated. In o ther words, in ou r rec ent 

experien ce while the dra ft was still op erating , we ha d ma ny people, 

several hu nd red tho usand a year, who were volunte eri ng and not 

being dr afted. How man y of them would have volunteered absent the. 

induction a utho rit y and its operat ion is a gr eat question.

Mr. Cohen. Let me ask you, w hat was the imp act or influence u pon 

the morale of the rest of the Ar my or the Armed Services of the 

adm issio n of the CO ’s into a nonco mb atant typ e of serv ice or alte rnative service? What was the impac t of th at grou p upon the morale 

of th e servicemen ?

Gen eral Benade. I do no t thi nk there ha s been any adv erse imp act, 

sir. I base th at on th is: W ith respec t to those individu als who were 

assigned to noncom batant duties. I th in k it was recognized th at t hey 

were follow ing the dic tates of th ei r conscience, and th e syste m has 

alw ays pro vid ed fo r such indiv iduals in service. Ma ny of them, as 

you know, were assigned to medical units, and I am very prou d of the 

fac t th at many of them ultim ate ly wou nd up with dec oration s fo r 

personal valor. So, there is no criticism whatever, so fa r as I am concern ed. fo r a man to seek noncom batan t sta tus on a conscientious 

objector basis.
556

Mr. Cohen. The only point I am tryin g to reconcile in my own 

mind is tha t you draw a distinction between those who would be 

opposed philosophically, religiously to any form of warfare, and 

those who would be opposed to the Vietnam conflict. The distinction 

would make a difference to the morale of the armed services if, for 

example, someone who personally was opposed to the Vietnam war, 

who then decided he would like to make a contribution to this country 

entered the Service, that would be a very harmful impact or negative 

impact upon the rest of his fellow men. And yet, someone who has a 

total opposition to war can serve quite well within a noncombatant 

status.

General Benade. I think the difference again, though, sir, lies in 

the fact that in the one case the man obeyed the laws of this country. 

He. entered the Armed Services, as was his obligation, and he accepted 

noncombatant duties. This to me is in complete compliance with the 

law, both the letter and the spirit of it.

T think the concern of the Armed Forces, and the Department of 

Defense, is with respect to those who would pick and choose. That is 

of concern.

Mr. Cohen. Well, the problem, it seems to me. is the perenial one, 

and that is the reconciliation of ones moral conscience with obedience 

to the rule of law. And I would like to ask your opinion. General. 

Ts there any point, in your opinion, that a soldier would be justified 

in refusing to carry out an order of his military superior?

General Benade. Yes; I can certainly imagine cases where a soldier 

or an officer would be justified in disobeying the orders of a superior. 

T think you also know, sir, th at the individual is responsible and that 

the order must be one that is illegal. He cannot simply pick and choose 

the orders which he will obey.

Mr. Cohen. Excuse me. General, but I am trying to relate it to an 

individual basis during a time of combat. Very few soldiers ever stop 

to ask questions—whether an order is illegal, an order from a superior, 

for example, to go into a village and perhaps decimate it. They do 

not stop and pause and sav is that legal or illegal. There comes a point, 

and we have seen manv examples of it. where pilots at one point along 

the way suddenly decide they cannot bomb a village or a soldier who 

cannot go in and wipe out villagers. There has to be some point where 

he says T cannot carry tha t out. and is that justified? Can you think 

of any situation where that would be justified, and if so. T would like 

your thoughts about the validity—I am thinking principally of the 

Xuremburg trials, because this is a question that continually comes 

up. the reconciliation once again of carrying out orders and disobeying 

them, and at what point do we reach that ?

General Benade. I am too, sir. T also had the Xuremburg trials in 

mind, and frankly. T also had My Lai in mind.

Mr. Cohen. Right. I did too.

General Benade. The easiest case T can offer to you is this. Suppose 

in a combat situation you have detained either civilians or military 

of the opposing force, and they have been disarmed and they are under 

your complete control. If anyone were to then say to a subordinate, 

“I want vou to execute those men.*’ that order is clearly illegal on its 

face, and from private to general, they should know that that order is 

not to be carried out. T can think of no clearer illustration. It is an
557

order I would refu se to ca rry out, and I would e xpe ct any s ubord ina te 

to refu se to ca rry out such an ord er.

Mr. C ohe n. Than k you, sir.

Mr. Kastenmeier. Th e gen tlema n from Iow a, Mr. Mezvinsky.

Mr. Mezvinsky. Than k you , Mr. Ch airma n.

Gen eral, I have only one question. You pointed ou t th at you sym ­

pat hiz e with those th at could hav e had a moral and conscientious 

objection to bein g invo lved in a wa r th at the y fel t was very un just. 

An d you indicated th at you would h ur t for th is m an. Do you th in k that 

by sen ding him to prison , it would have a rehabilitat ive effect or would 

have a h ealin g effect? W ha t good can come from sen ding these people 

to prison ?

Gen eral Bexade. I did not add th at I th ou gh t those ind ivi duals 

should go to prison , sir. My personal belief is th at such ind ivi duals 

should retu rn to prop er control. If i t is a deserter , to m ili ta ry co ntrol, 

and if it is a civilia n, to civ ilia n control. I th in k a forum is ava ilab le 

to th em either in the civilian cou rts or in the m ilitary cou rts or throu gh 

oth er processes to establ ish the basis for th ei r refusal to abide by the 

law. I am sim ply sayi ng I do n ot th in k you can gen eralize, sir. I th in k 

each case has to be handled on its merits.

Mr. Mezvinsky. Ta king the str ict in terp retatio n you hav e given 

concerning the law. if th ey have violate d th at law, they will be subject 

to going to p rison, is th at not co rrect ?

Gen eral Bexade. Th ey would certa inly be subject to it, s ir. I th in k 

the burd en m ust, und er ou r system , be on th e indiv idu al to provide the 

basis whereby h is neighbors or a ju ry of his peers, if it is a tr ia l, will 

accept or reject the reasons the man gives. The se circ umstan ces and 

mi tig ati on can be develop ed, i f th eer are an y present.

Mi-. Mezvinsky. Then would you agree or not with the sta tem ent 

th at if such a person was sent to prison , it would n ot have a reh ab ili tative effect?

General Bexade. It could. It depends on th e ind ivi dual. Th e whole 

the ory , af te r all, of our penal system, is th at it is supposed to h ave a 

rehabilitati ve purpose . How well it succeeds is anoth er story.

Mr. Mezvinsky. Th an k you, Mr. Ch airma n. I hav e no fu rthe r q uestions.

Mr. Kastenmeier. Does the gen tlema n fro m Uta h have any questons?

Mr. Owens. Xo, I ha ve no questions.

Mr. Kastenmeier. In whi ch case, th e com mittee is indebted to you 

for yo ur app ear anc e th is mo rning, Gener al Ben ade, and fo r yo ur 

testimo ny.

In order that the record be complete, I am pla cin g in the record an 

exch ange of correspo nden ce between t he subcommittee and th e D ep ar tment of Defense re latin g to amnesty.

[The corr espo nden ce r eferred to fo llo ws :]

Assistant Secretary op Defense,

Washington, D.C., March 1,197%.

Hon. Robert W. Kastenmeier,

Chairman, Subcommittee on Courts, Civil Liberties, and the Administration of

Justice, Committee on the Judiciary, House of Representatives, Washington,

D.C.

Dear Mr. Kastenmeier : This is in reply to your let ter of Feb ruary 20, 1974, 

to the Secretary of Defense requesting information on several subjects. Answers 

to your questions follow.
558

(1) How many persons who were a bsent without leave or deserted during the 

I>eriod from 1963 to 1973 have never returned to military custody?

Our records on deserters (those who were absent for 30 days or longer) who 

have not returned to military control begin on Jul y 1, 1966. As of December 31, 

1974, 28,661 deserters remain at large.

(2) How many persons during the i>eriod from 1963 to 1973 were prosecuted 

under the Uniform Code of Military Justice for desertion?

During fiscal yea r 1963-1973, 3,919 persons were prosecuted under the Uniform Code of Military Justice for the offense of desertion.

3. How many veterans of m ilita ry service during the period from 1963 to 1973 

have been discharged with other tha n an honorable discharge?

Discharge statistics for the period fiscal year 1963 to fiscal year 1973 are as 

follows :

Under Honorable Conditions:

Honorable (94.19%)______________________________________ 8,837,587

General (3.20%)_________________________________________ 300,078

Tota l (97 .39 %) ________________________________________ 9,137,665

Under Other Than Honorable Conditions :

Undesirable (2.18% )_____________________________________ 204,920

Bad Conduct (0.39%)____________________________________ 36,510

Dishonorable (0.04%)____________________________________ 4,042

Total (2.61% )_________________________________________ 245,472

Tota l discharged fiscal y ear 1963-fiscal year 1973___________ 9,383,137

I trus t th at this information will be of assistance to you.

Sincerely,

Leo E. Benade,

Lieutenant General, USA,

Deputy Assistant Secretary of Defense.

February 20, 1974.

Hon. J ames R. Sohuesinger,

Secretary of Defense, Department of Defense,

Washington, D.C.

My Dear Mr. Secretary: The Subcommittee on Courts, Civil Liberties, and 

the Adm inistration of the House Committee on the Ju diciary has scheduled hearings for March 7 and 8 on several measures rela ting to the subject of amnesty. 

In order tha t the Subcommittee might be informed a s to the scope of the problem, 

I would apprecia te your supplying us, prior to the hearings, with answers to the 

following que stio ns:

(1) How many persons who were absent withou t leave or deserted during 

the period from 1963 to 1973 have never returned to military custody?

(2) How many persons during the period from 1963 to 1973 were prosecuted 

under the Uniform Code of Military Justice for desertion?

(3) How many veterans of military service during the period from 1963 to 

1973 have been discharged with other than an honorable discharge?

Your cooperation in replying to this request by March 1 would be most helpful. 

Sincerely yours,

Robert W. Kastenmeier,

Chairman, Subcommittee on Courts, Civil Liberties,

and the Administration of Justice.

General Benade. Thank yon, sir.

Mr. Kastenmeier, And should we have further questions we can 

submit, them to you by letter?

General Benade. Yes.

Mr. K astenmeier. Thank you very much.

General Benade. Thank you, sir.

Mr. Kastenmeier. The Ch air observes the lateness of the hour and 

we have a number of witnesses left. In the interests of expedition. I 

would like to call on Congressman Dellums, who has a very brief
559

sta tem ent, ra th er tha n to hold him here at co nsid erable leng th. It is a 

pleasure to gre et t he gentlem an from Ca lifornia , the Honora ble Ro nald 

Dellums.

TEST IMONY OE HON. RONALD V. DELLUMS, A RE PRES EN TA TIVE 

IN CONGRESS FROM TH E STATE OF CALIFORNIA

Mr. Dellums. Than k you, Mr. C hairm an, members of the committee.

I am extrem ely pleased to ap pe ar before th is subcomm ittee as it 

begins heari ngs on amnesty. I c ame to C ong ress with opposition to o ur 

adventu rism in South eas t Asia as my No. 1 pr iority , and it is obvious 

th at the legacy of the wa r is still with us, and can be fou nd beh ind 

so man y of the majo r issues of the day. Altho ugh un fo rtu na tely our 

tra gic involve men t in Ind ochina continu es, the job is now left to 

profession als, and not a citizen arm y. It is the ref ore ap prop riate at 

this time to cons ider the q uestion o f am nesty.

Wh o needs amnesty? Not the politicia ns who led us into the war. 

Not the bu rea ucrat s who con sistently disto rte d the fac ts of the situ ation. Not any o f the Congressmen and Senators who voted for the war. 

Not Lieuten ant Calley, who has been dec lare d useful to society. Not 

any of the tho usa nds of you ng men with money or connections who 

evaded the dr af t in entirely legal ways—th roug h hig her edu cation, 

the Reserves, exempted jobs, or conscientious objector status.

Th e people who need amn esty are not in a position to ple a-b arg ain 

in retu rn for suspended sentences. They could not claim privilege s of 

any kin d or dem and immu nity from ind ictme nt. They hav e few votes 

and little influence, and nothing much politi cally will happen to Con ­

gressmen who make thes e powerless people th ei r enemy. They are t he 

young men who were too unluck y, or too inex perienc ed, or too pri ncipled to find an easy way of avoid ing dire ct res ponsibility for the 

ho rro rs of an insane war—h onors th at the res t of us viewed and 

arg ued abou t from a distance .

I am not going to speak at len gth abou t wh eth er we s hou ld gran t 

amn esty. The main reason for su pp ortin g amn esty is not to save these 

young men and th eir fam ilies , but to save our own souls—from easy 

self-righteou sness and the indifference of power. How ever. I would 

like to say just a few words about the method of gr an ting amnesty. 

I support a gen eral, unc ondition al amnes ty and I believe this is the 

most fa ir and efficient way of acc om plishing the pur poses o f amn esty 

legislation . My bill, I I.R . 3100, was d esigned to c ar ry ou t this ap pro ach .

We much first decide a basic question of purpose; do we wa nt to 

make sure th at everyone worthy return s to society, even at what some 

in our society will call the risk of er ring on the side of gen erosity ? 

Or do we wan t to make sure th at e veryone pa ys t he ir price an d t hat no 

one ge ts a ny thing th ey don’t deserve f

Most amnesty pro posals have th is second purpose. Au thors of these 

typ e pro posals have grea ter confidence in the moral wisdom and in ­

he rent fa irn ess of governmental processes t ha n I have. Th ey clai m t hat 

the case-by-case appro ach is th e o nly j ust one. because of th e div ers ity 

of ind ividual circum stan ces and motives.
560

I am awa re of the many distinctions amo ng deserters and evaders. 

It is precisely for this reason th at I advocate a gen eral amn esty ap ­

proach. It would require the wisdom of Solomon to give everyone 

exa ctly wha t they deserve in this com plicated and controversial area, 

and the case-by-case appro ach prom ises no gr ea ter success in achieving this goal th an any o the r—esp ecially if tho se called upon to decide 

are ar bi trar ily selected bu rea ucrat s or local jud ges with th eir vastly 

differing opinio ns and outlooks.

It should be cle ar th at gen eral amn esty does not imply th at nonrel ate d offenses are forgiv en or expunged from the record. If a person 

went AW OL to escape prosecutio n for murde r or th ef t, my bill will 

allow him to return , but only to face these cha rges aga in.

My b ill sets up an Am nesty Commission, but only to han dle w hat is 

left ove r af te r the bulk of the cases have been handled by autom atic 

provisions. Altho ugh I believe th at the more aut om atic amnesty is, 

the bette r it is for both the you ng men involve d and ourselves, the re 

should be some provision fo r ha nd lin g special cases and exceptions.

An other area to which my bill pays special att en tio n is the legal 

consequences of amn esty . If amn esty is to be me aning ful, it must not 

only pro tect the ind ividual from criminal prosecutio n, bu t inclu de 

remo val of any mentio n of relevan t offenses from all records—the 

gr an ting of hon orable discha rges where ap prop riate—a nd the nu lli ­

fica tion o f any o the r legal consequences. In our com plic ated , com petitive society, where a pers on is so much a pri soner of the reco rds kep t 

of h is pas t, a ny thing less would be a joke.

To sum up, Mr. Ch airm an and mem bers o f t he committee, I believe 

a gene ral, unc onditional amn esty would be less e xpensive, w ould cause 

less bittern ess , would be ultim ate ly much more fa ir —in fac t, would 

accomplish the aims of amn esty fa r bette r th an any oth er app roach. 

While other, more cumbersom e proposals have been described as m odera te compromises, in rea lity the y reflect the same unboun ded confidence in the moral wisdom of the establ ishment th at got into the illegal, imm oral, and insa ne wa r in Ind ochina in the firs t place.

I believe the delibera tion of the subcomm ittee will be help ed by 

some of t he excellen t articles th at have appeare d on amn esty and the 

ind ivi du als who are dir ectly involved, since the y br ing out the h uman 

reality of the question. W ith the perm ission of the subcomm ittee, I 

would like to submit th ese for the record.

Mr. Kastenmeier. W ith ou t objection, we will receive your sta tement a nd the a rticles.

[T he documents ref erred to follo w:]

Statement on Amnesty by Ronald V. Dellums

Mr. Chairman. Members of the Sub-Committee, I am extremely pleased to 

api>ear before this Sub-Committee as it begins hearings on amnesty. I came to 

Congress with opposition to our adventurism in Southeast Asia as my number 

one priority, and it is obvious that the legacy of the war is still with us, and 

can be found behind so many of the majo r issues of the day. Although unf ortunately our tragic involvement in Indochina continues, the job is now left to 

professionals, and not a citizen army. It is therefore app ropriate at this time 

to consider the question of amnesty.

Who needs amnesty? Not the politicians who led us into the war. Not the 

bureau crats who consistently distorted the facts of the situation. Not any of 

the Congresspersons and Senators who voted for the war. Not Lt. Calley, who 

has been declared “useful to society.” Not any of the thousands of young men
561

with money or connections who evaded the dr af t in entir ely legal ways—throug h 

higher education, the Reserves, exempted jobs, or Conscientious Objecto r status.

The people who need amnesty are no t in a position to plea-b argain in ret urn for 

suspended sentences. They could not claim “privileges” of any kind or demand 

immun ity from indictm ent. They have few votes and little influence, a nd nothi ng 

much politically will happen to Congressmen who make these powerless people 

the ir enemy. They are the young men who were too unlucky, too inexperienced, 

or too principled to find an easy way of avoiding direct respo nsibility for the 

horrors of an insane war—horro rs th at the rest of us viewed and argu ed abou t 

from a distance.

I am not going to speak at length about whether we should gra nt amnesty . 

I believe in unwaivering terms th at we must. The main reason for suppo rting am ­

nesty is not to save these young men and the ir families, but to save our own 

souls—from easy self-righteous ness and the indifferen ce of power. However, I 

supp ort a general, unconditional amnesty and I believe this is the most fa ir and 

efficient way of accomplishing the purpose s of amnesty legislat ion. My bill H.R. 

3100, was designed to c arry o ut this approach.

We must first decide a basic question of purpose : Do we want to make sure 

th at everyone worthy return s to society, even at wha t some would call the risk 

of erring on the side of gene rosity? Or do we w ant to make sur e th at everyone 

“pays the ir price ” and that no one gets anyt hing they don’t deserve?

Most amnesty proposals have this second purpose. Auth ors of thes e type proposals have gre ate r confidence in the moral wisdom and inhe rent fair ness of 

governmental processes than I have. They claim th at the case-by-case appro ach 

is the only ju st one, because of the dive rsity of individual circumstances and 

motives.

I am awa re of the many distinctio ns among dese rter s and evaders. It is pre ­

cisely for this reason tha t I advocat e a general amnesty approach. It would 

require the wisdom of Solomon to give everyone exactly wha t they “deserv e” 

in this complic ated and contr oversial area , and the case-by-case appro ach promises no gre ate r success in achiev ing this goal tha n any other—especially if those 

called upon to decide are arbit raril y selected bur eau crats or local judge s with 

the ir vastly differing opinions and outlooks.

It should be cle ar th at gen eral amne sty does no t imply th at non-related offenses 

are forgiven or expunged from the record. If a person went AWOL to escape 

prosecution for murd er or theft, my bill will allow him to return , but only to 

face these charges.

My bill sets up an Amnesty Commission, but only to handl e wha t if left over 

after the bulk of the cases have been handle d by auto mat ic provisions. Although 

I believe th at the more auto mat ic amnesty is, the bet ter it is for both the young 

men involved and ourselves, the re should be some provision for han dling special 

cases and exceptions.

Another are a to which my bill pays special atte ntion is the legal consequences 

of amnesty. If amnesty is to be meaningful, it must not only prote ct the indiv idual from criminal prosecution, but includ e removal of any mention of relev ant 

offenses from all records—th e gra nting of honora ble discha rges where appro ­

pria te—and the nullification of any othe r legal consequences. In our complicated, 

competitive society, where a person is so much a priso ner of the records kept 

of his past, a nyth ing less would be a joke.

To sum up. I believe a general, uncon ditional amnesty would be less expensive, 

would cause less bitterness , would be ultim atel y much more fair—in fact, would 

accomplish the aims of amnesty fa r bet ter than any othe r approach. While 

other, more cumbersome proposals have been described as “modera te compromises,” in reality they reflect t he same unbounded confidence in the m oral wisdom 

of the Establish ment th at got us into Indochina in the first place.

I believe the delibe ration of the Sub-Committee will be helped by some of the 

excellent artic les th at have appeared on amnesty and the individu als who are 

directly involved, since they bring out the huma n rea lity of the question. With 

the permission of the Sub-Committee, I would like to submit these for the record.

I would like to than k the Sub-Committee for the ir atte ntion and for the inte res t 

in Amnesty legislatio n.
562

AMNESTY

Ques tions & A nsw ers

Why. Amnesty?

America ow es itself th e en ac tm en t of a 

un iv ersa l, un co nd iti on al am ne sty for all 

w ar resisters of the Viet Nam er a. Tho se 

wh o re fu se d to part ic ip ate in the w ar in 

So ut he as t As ia — a go ve rn m en ta l under ­

taki ng of g re at moral, po litical and co nstitu tio na l du bi ou sn es s—ou gh t not to b e su bje ct ed to crim inal or a dm in istrativ e pu ni sh ­

ment. It wo uld be co mpo un ding the injusti ce s of this trag ic ep isod e in American 

histo ry if the only pe ople to suffer crim inal 

pen al ties w ou ld be th ose of the you ng gen ­

er at io n wh o had th e coura ge to sa y "N O" 

to the war . They m ad e the cr uc ial de cisio n 

of th eir yo un g liv es in th e light of wha t 

millions of American s an d m an y of ou r 

po lit ical and re lig ious le ad er s said : tha t the 

w ar in V iet Nam w as a terrib le mist ak e, if 

not a ghas tly crime .

AMERICAN

CIVIL LIBERTIES

UNION

2 2 EAST 4 0 STRE ET

NEW YORK, N.Y. 10 01 6

W ha t Is A mnesty?

Am ne sty is the discr etio na ry act of a sover ei gn stat e of de ci di ng to abst ai n from 

pr os ec ut in g gr ou ps of c itizens w ho m ay b e 

in conflict with the la w for po litical re as on s. 

Am ne sty is th e la w 's “fo rg ettin g" (cf. am ­

ne sia) of ce rt ai n ac ts, in the interest of 

social justice and reco nc iliation. It is the 

la w 's w ay of un do in g wha t th e la w has 

do ne . Like pa rd on, am ne st y is no t a right

bu t a m at te r of g ra ce w hic h a g ov er nm en t 

m ay pe rfo rm in th e in terest of society at 

la rg e. Unlike pa rd on , am ne st y affects not 

a sing le pe rson bu t en tir e clas se s of pos ­

sib le la w violators, an d un lik e par don it 

do es not re mi t further pu ni sh m en t for so meon e alr ead y c on victed of a crime. Rathe r it 

is a dec ision not to rai se the issu e of w he th er 

th er e ha s been an y crim inal conduct.

Wh o S hould Ge t A mnesty?

The Am erican Civ il Libe rties Union ad vocat es a un iv er sa l and un co nd iti on al am ­

ne sty for al l those wh o ha ve suffe red or
563

fa ce cr im inal or ad m in istrativ e pe nal ties 

for no n-violen t a ct s of e va sion or re sistan ce 

to the draft , to the militar y, o r to t he w ar i n 

So ut he as t Asia. We se ek a m ne sty for draft 

refusers, de se rter s, pe rson s co nv icted by 

co ur ts-m ar tia l for military off ens es n ot p unis ha bl e under civi lia n law, vet er an s with 

le ss -tha n- ho no ra bl e di sc ha rg es , and civ ilia n p ro tester s and re sisters to the wa r.

How Ma ny People Would A 

Universal Am nesty Affect?

Draft re fusers : S om e 7,400 m en hav e bee n 

co nv icted by the fe de ra l co ur ts for draft 

violations du ring th e Viet Na m er a. The 

Se lective Se rvice Sy ste m has re ferred to 

the Dep artm en t of Jus tice for pr os ec ut io n 

so m e 39,000 a d d it io n a l d ra ft vio la to rs . 

Th ere are about 5,700 draft indictmen ts 

pe nd in g. U nk no wn th ou sa nd s nev er reg iste re d for th e draft and therefor e ha ve no 

p re se n t re co rd of d e li n q u e n cy b u t a re 

su b je ct to p ro se cu ti o n w h e n ev e r th eir 

violation come s to th e at te nt io n of th e go vernm en t. No on e kn ow s ho w m an y files lie 

un ex am in ed in th e draft b oar ds ar ou nd th e 

co un try th at will re vea l draft la w violations w he n so meo ne g ets ar ound to ch ec kin g them.

Deserter s: According to th e Dep artm en t 

of De fen se, th er e are no w ov er 32,000 dese rter s "a t la rg e. " They are eith er i n exile 

ab ro ad or th ey liv e un de rg ro und in this 

co un try . (Almost 100,000 me n d es er te d from 

the military per y ear du ring the he ight of 

the Viet Nam w ar. Most of them w er e ei th er 

appre hended or vo lu ntar ily re tu rn ed to 

military control.) Man y of th e de se rter s did 

not ha ve the be ne fits of an a dvan ced e duca tio n or much re ad in g and discussio n 

ab out the merits of the war . Th ey could 

de term in e only after en te ring the ar m ed 

se rv ices th at th ey co uld not ac ce pt the 

de pe rson al iz at io n and racism of militar y 

life or the br ut al itie s and in sa ni tie s of th e 

war . Man y sa w ac tiv e an d ho no ra bl e 

fro nt- line se rv ice in Viet Nam on ly to be 

so ap pal le d by the se ns el es s de stru ctio n

of a p eo ple a nd t he ir c ou ntry th at th ey left 

th e military on th eir own. To disc rim in ate 

agai nst de se rter s in any am nes ty wo uld 

m ea n to m ak e of am ne st y an oth er instru ­

men t of discrim ination on gr ou nd s of c lass 

and ra ce , just as th e bu rd en s of the draft 

and of co mba t fell di sp ro po rtio na te ly on 

the po or and the no n- white el em en ts of 

ou r so cie ty.

Exiles: A n e st im at ed 30,000 to 40,000 w ar 

resisters are in ex ile ab ro ad , most of them 

in C anad a. A few h un dr ed a re in Sw ed en , 

Eng land , Fr an ce and ot he r co un tri es. The 

ex ile s co mprise b ot h draft re fu se rs a nd d ese rte rs. C an ad a ad m itte d about 20,000 

dr af t- ag e Amer ican m en a s "l an ded immigrc mia " du ring the Viet Na m er a, bu t 

m an y of the ex ile s co uld no t mee t the 

string en t C anadia n qu alificatio ns for b eco ming "l an ded ." The y en te re d C an ad a as 

"tou rists" and hav e re m ai ned th er e b eyo nd the ex pi ra tio n of the ir tourist p ermi ts. 

Their "i lleg al " st at us is a se ve re disa bilit y 

(for ex am pl e, th ey ca nn ot le gal ly hold 

jobs), bu t th e C anadia n go ve rn m en t ha s 

no t de ported or ex trad ited any Am erican 

wh o is ch ar ged on ly with violation of the 

draft la w or wi th de se rti on .

Cou rt-m ar tia l conv ict ion s: 550,000 men 

w e re c o n v ic te d b y m il it a ry c o u rts of 

off enses th at wou ld not be crim es in a 

civilia n co nte xt, ov er ha lf of them for a b ­

se nc e with ou t le av e, ab ou t on e- te nt h for 

di so be di en ce , othe rs for co nd uc t br in gi ng 

disc redit up on the ar m ed forces , and the 

like . Sinc e th es e men w ou ld not ha ve b ee n 

in the military bu t for a w ar and draft of 

do ub tfu l co ns tit ut iona lit y, th ei r reco rds 

shou ld be cl ea re d. The pr op or tio n of 

minority -group GI 's co ur t-m ar tia le d was 

m an y tim es the ra tio of the white GI ’s.

Les s- th an -h on or ab le discha rges: Ab out 

450,000 Viet Nam -era vet er an s ha ve less - 

th a n -h o n o ra b le d is c h arg e s. Such d is ­

ch ar ges are gi ve n ei th er "a dm in is trativ ely," th at is, wi thou t any due pr oc es s 

w hat ev er (" gen er al " an d “u ndes irab le " 

di sc ha rg es ), or a s a result of c ou rt- m artia l 

(" bad co nd uc t" and "d is ho no ra bl e" dis-
564

ch ar ge s) . Le ss-tha n- ho no ra ble di sc ha rg es 

ca rr y w ith them se ve re disabilities, in clud ­

ing loss of ve te ra ns' be nefits, di sq ua lif icatio ns for civil se rv ice and othe r em pl oy ­

ment, for lic en ses, an d the like . Even 

“h on or ab le " di sc ha rg es b ear co de nu mb e r s w h ic h in d ic a te to g o v e rn m e n t 

ag en ci es and pr os pe ctiv e em ploy ers the 

ar bitra ry op in ion of th e military th at the 

vete ra n w as gu ilty of dr ug ab use , bedwe tting , dislo ya lty , ap at hy, and sim ilar 

b ad ha bits, thus se ve re ly pr ejud icin g the 

vete ra n's op po rtu nitie s. Le ss-th an-hon orable di sc har ges ha ve been the military's 

favo rit e de vi ce to rid t he se rv ices of “t roubl e- m ak er s" or to summarily ca sh ie r out 

of the se rv ice men wh o be ca m e victim s of 

dru g abuse th at w as so en de m ic in Viet 

Na m an d el se w he re in the militar y. In 

g re a tl y d is p ro p o rt io n a te n um ber s, l es sth an -h on or ab le di sc ha rg es w er e im po sed 

upo n m en from mi nority co mm un ities an d 

from th e les s we ll ed uca te d and po or er 

se gm en ts of soc iety.

Civil ian protesters an d resiste rs: Du rin g 

the yea rs of the w ar in So ut he as t Asia, 

hu nd re ds of th ou sa nd s of American s pr ote sted th e w ar in d em on stra tio ns and ac ts 

of r es istanc e. Th ou sand s w er e arr es te d on 

ch ar ges ra ngin g from the min or, su ch as 

dis tu rb an ce of the peac e or tres pa ss , to the 

ve ry se rio us, such a s co ns pi racy a nd v io lation of the es pio nag e acts. Principled , no nviole nt di so be di en ce an d re sistan ce to the 

w ar in Viet Nam shou ld not ca rr y crim inal 

pe na ltie s.

Will A Post-Viet Nam Amnesty 

Be Unprecedented?

No. Am ne sty has a long and distingu is hed trad iti on in Amer ican history. 

After almost ev er y military en gag em en t 

in o ur history, w he th er a t ho me or a bro ad , 

Am erica has ex te nd ed am ne st y to those 

w ho fo und th em se lv es in co nfl ic t w it h 

nat io nal au th or ity ov er those wars. Preside nt W as hi ng to n ex te nd ed an am ne sty to 

th e Pen nsy lv an ia f armers wh o engag ed in 

th e "W hisk ey Reb ellio n." The m ost fa mou s

ex am pl e is th e Civ il W ar, in wh ich the 

So uthe rn st at es co mm itted wha t the Co nstitut ion de fin es as high trea so n, na mely 

levy ing w ar ag ai nst the Un ite d States; yet 

not a sing le po lit ical or m ilitary le ader of 

the Con fe de ra cy w as e ver tried for tre as on 

bec au se of th e se ries of am ne st ie s pro ­

clai m ed by Pr es id en ts L incoln an d Johnson. 

After World W ar I, Pr es iden t Har di ng indi vidu al ly pard oned some of the w ar re ­

sis ters of th at pe rio d, includ in g Eu ge ne V. 

Debs. Af terW orld W ar II, Pre side nt Tru ma n 

es ta bl is he d an “A mne sty Bo ard ," wh ich 

tried to m ak e ju dg men ts ab out the me rits 

of e ac h of th e ov er 15,000 m en con victed of 

dr aft vio lat ion . The boar d ultim ately re com men de d on ly ab ou t 10 per ce nt of the 

draft violators for p re si de nt ia l p ar do n, a nd 

the se lection pr oc es s di sc rim in ated sy ste m at ic al ly a gai nst the poo r, the less artic ­

ul ate, m em be rs of mino rity gr ou ps, an d 

adher en ts of ce rtai n relig io us sec ts.

Who Can Extend Amnesty?

The Co nstitution of the Un ited St ates 

gives the Pr es id en t th e po wer to gr an t 

par dons for fe de ra l crim es an d, by ex te nsion, to gra nt am ne sties. But am ne sty ca n 

al so b e enac te d by the l eg isla tu re . A n um ­

ber of a m ne st y bills h av e been intro du ce d 

in the Con gr es s re ce nt ly and some h earings hav e been he ld.

Should There Be An Amnesty 

Board To Review Each Case On 

The Merits?

Am ne sty by its ve ry nat ure re la te s to 

who le clas se s of polit ical off end ers. A c as eby -c as e ad ju di ca tion of the mo ral , re lig ­

ious, id eo lo gi ca l or po lit ical bona tid es of 

hu nd re ds of th ou sa nd s of yo un g men is 

un ca lled for. As ide from t he ov erwhe lm ing 

ad m in istrativ e or ju di ci al burd en such a 

pr oc ess wo uld en ta il, it must al so be re ­

m em be re d th at an y trib unal wou ld ha ve 

to m ak e ex tre mel y de lica te ju dg men ts 

ab ou t the pe rs on al co nv ictio ns he ld by
565

these young men years earlier when the 

act of war resistance occurred. Case-bycase examination of the war resisters 

would discriminate in favor of the educated and articulate, who can communicate a philosophical position about the w ar 

to persu ade some tribunal of the depth of 

their conviction.

Should Some Form Of Altern ative 

Servi ce Be Dem and ed From 

Amn estie d Wa r Resis ters?

Alternative service is a form of punishme nt. All the re sist er s ha ve al re ad y 

suffered either the pains of prison, the 

terrors of underground life, or the bitterness of exile. There should be no additional 

punishment exacted from them. Moreover, 

no system of forced labor is likely to be 

socially constructive.

Will Am nesty C rea te Disrespect 

For The Law ?

Amnesty does not do away with law. 

Amnesty is a lawful w ay to undo injustices 

and destructive hardships crea ted by the 

law. Since amnesty is a discretionary act, 

it does not c reate an incentive for others to 

ignore or violate laws with impunity, because in the ordinary course of events 

criminals cannot routinely expect amnesty 

or pardon. But after the war in Viet Nam, 

amnesty would enha nce a sense that the 

law is not an instrument of repression 

against those who act non-violently in the 

light of their conscientious commitments.

Will Amn esty Dishonor Those Who 

Foug ht And Died In Viet Nam?

The war in Viet Nam produced neither 

victory nor honor. It produced only victims 

—in Southeast Asia and in America. Those 

who served in the war, those who were 

wounded, and those who died were victims 

of the war, just a s those who went to jail or 

underground life or into exile were victimized by it. Most men who were ordered to 

fight assumed that they had an obligation 

to follow the government's orders. Some 

were eager to do so. They did not act dishonorably or uncourageously by obeying. 

At the same time, those who thought the 

war immoral and illegal showed extraordinary courage by defying the power of 

the United States government.

Wh at N eeds To Be Done To O bta in 

A Univers al, U ncon ditional 

Amnesty ?

1. Obtain an d publiciz e inform atio n 

about war resisters and amnesty, through 

personal contacts, the media, meetings, 

and the like. The ACLU Project on Amnesty 

ha s such m at er ia l, in cl ud in g a list of 

sources for other printed materials, books, 

films, speakers, etc.

2. Arrange for public a nd organizational 

meetings on amnesty.

3. Identify the families of war resisters in 

your community and help them organize 

into an outspoken and visible part of the 

amnesty movement, in conjunction with 

veterans, ex-prisoners of war. Gold Star 

Families, and other war victims who support amnesty.

4. Establish and maintain contact with 

the Am erican an d exile orga niza tio ns 

(civic, religious, peace, etc.) that work for 

unive rsal and unconditional amnesty.

5. Urge your local community groups, 

churches, organizations, legislative bodies 

and the like to adopt resolutions in support 

of a universal, unconditional amnesty, an d 

send these resolutions to the press, to your 

Washington representatives and to the 

President.

6. Circulate petitions for amnesty.

7. Urge your local newspaper, radio and 

television stations to make space and time 

ava ilab le for discussions of amnesty.

This information was prepared by Henry

Schwarzschild, director of ACLU Foundation's Project on Amnesty.

2E873
566

[From the Congressional Record, Oct. 23,1973]

Amnesty Must Not Be Forgotten

HO N. RONALD V. DELLUMS, OF CALIFORNIA, IN TH E HO USE OF REPRESEN TATIVES

Mr. Dellums. Mr. Speaker, the bitte rnes s of the wa r years lives on. More 

tha n ever we need comprehensive amnesty legislation, so that we may—to use 

a cur ren t phrase —move beyond the obsessions of th e past. More and more people 

are beginning to realize that amnesty legislat ion may set a good preceden t in 

these troub led times.

One of the most determined opponents of amnesty has recen tly received a suspended sentence. No one has suggested th at he now wear a distin guish ing mark, 

as he once did in the case of resisters. I say this in no spi rit of tau nting bit ter ­

ness, but—could this man now find it in his he art to advocate suspending the 

l>enalties of those who t rans gres sed the law, not through greed, but throu gh conscience? Who stood up and received the penalties Mr. Agnew understandably 

wished to spa re himself and his fam ily ?

All aroun d us the powerful are toppling, b etray ed by t hei r d isto rted view of the 

world. But let us not allow the sound of the cras hing pilla rs of sta te smother 

the sound of those langui shing in our prisons, or living in barr en flats in Sweden 

and Canada, or looking for a job with the stigma of a bad mil itary discharge. 

There is no gre ater duty than to remember the weak, and I ask my colleagues 

to take time from the ir pressi ng concerns to undo the damage the war has 

wrou ght—more for our sake tha n theirs .

At thi s point I would like to put in two stat eme nts on amnes ty and tax resistance th at have been prep ared by the Church of the Brethre n and adopte d by 

the ir ann ual conference of thi s year. I thin k these are excellent state men ts that 

bring out all aspects of the questio n in a fair, clear manner. The stateme nt on 

amnes ty is especially to be commended for emphasizing the duties and opportun itie s of local communities to do the job of amnes ty on the concrete, human 

level. I hope these stat eme nts will remind us of an issue th at should not be 

forgotten, and will no t be forgotten unt il it is resolved.

Conference Statement 1973—Amnesty

AN AN NU AL CONFERENCE STA TEM ENT

The following “St atem ent of the Church of the Brethre n on Amnesty” was 

adopte d by the Church of the Bre thre n Annual Conference, Fresno, CA, June, 

1973.

Intro duction

There are thousands of persons today who have fel t the effects of the dividing 

wall of host ility which has been genera ted by war. Social relations hips in the 

family and between families have been damaged because persons have had 

diffe rent beliefs and convictions about war. Even af te r the war has been dec lared 

over, the re remain divisions which c ause suffering for persons and groups in our 

society.

The Church of th e Brethre n rega rds this situ atio n w ith concern and sorrow not 

only because we believe th at war is sin, but also because we understand tha t 

the gospel message can bridge the walls of hostility which exist, between exiles, 

families, and government.

At its root, the concept of amnesty had to do with the biblical und erstanding 

of reconciliation. How can there be reconci liation between par ent s and children 

in the United Sta tes ? How can the re be reconci liation between the government 

and e xiles? How can ther e be reconciliation between those w ith different opinions 

on i var? How can we restore the unity of our natio n while maintai ning integrity 

both for the country and its people?

We, the members of the Church of the Brethren , believe th at reconci liation i$ 

most likely i f the following t hing s o ccur:

1. The United Stat es Government should gra nt uncon ditional amnesty to all 

those who are alien ated from the ir nation because of the ir personal acts of 

conscience in relation to war.

2. Christian s, both indiv idual ly and as denomin ations, should become agents 

of reconciliation wherev er such service is needed.
567

- • Biblica l basis

In the New Testa ment, the theme of reconciliatio n is cen tral to the und erstan ding of God's love for persons in Jesu s Christ. The gospel calls as to a 

mini stry of reconciliation.

Fir st, according to Ephes ians 2:14, recon ciliation is a gift of God. Fo r he is

our peace, who has made us both one, and has broken down the dividin g icall

of hostility . . . Throug h God’s action in Jesu s Christ, the re is reconciliatio n 

between people while the re are differences (Jo hn 10:16; Galatia ns 3: 28 ). Even 

though the disagreements on many issues sep ara te people within our nation , 

there can be reconciliation if we accept it as God’s gift.

A decl arat ion of amnes ty follows thi s model. Throug h amnes ty, a government can forg et the legal penalties connected with the action s of a group of 

persons, and thereby declare th at the unity of its i>eople is more imp orta nt 

tha n continu ed hostility and division. Amnesty can brin g recon ciliation even 

though significant differences remain on the issues at stake, localise such an 

action removes the pun itive measures rela ted to such differences. Reconciliation 

is a gift of God and he will bring peace if we tru st him (Ps alm 11 8:8-9 ).

Second, according to II Corinth ians 5:18, the church is called to l>e an agent 

of reconciliation. (All this is from God who through Christ reconciled us to

himself and gave us the ministry of reco ncili ation .) The Churc h of the Bre thre n 

has alwa ys taken this Scripture seriou sly and we have set out to be reconcilers. 

As Chr ist was the med iator between sinner s and God, so the Church is called 

to a mini stry of reconciliation between persons and God and between people 

in conflict with one another.

Whatever the governm ent does abo ut amnesty, the re will be need for reconciliation. Many men have become alienate d from the ir families and local communities and now want to lie reunited. Many young people could ret urn home 

now with out legal difficulties, and may if they have a suppo rtive community. 

Some may decide to ret urn and face the legal penalties ra th er tha n remain 

as exiles. On many levels there is work of recon ciliation which could be done 

by the Church. The Scriptures lead us to such a ministry.

Histo rical background

Thro ugho ut its history, the Church of the Bre thre n has taken seriou sly the 

tas k of bring ing persons togethe r. During the Revo lutionary War the Bre thre n 

refused to side with eit her army, but worked to bring peace to th eir communities. It was Eld er John Kline in the Wa r between the States who tirele ssly 

rode the circuit of reconciliatio n to keep person s at one in faithfu lness to 

Christ. Duri ng an d following World Wa r II, Brethre n took in and aided J apane seAmerican refugees. The present situ ation pres ents the Bre thre n ano ther opportun ity to be involved in healing the wounds of wa r and to be fai thf ul to the 

mini stry of reconciliation.

The pres ent crisis

The questio n of amnesty is being debated in the press, discussed on radio 

and television, and kept much alive in our nat ion ’s capital. Several amnesty 

bills and resolutions have l>een intro duced since the pres ent session of Congress 

began.

In any discussion of amnesty , we are talkin g abou t hund reds and thou sand s 

who have suffered some legal disa bility because of war. For instance, tens of 

thousands of these persons have come out of the mil itar y service in the Indo ­

china War with less than honorable discharges, have been convicted of Selective 

Send ee viola tions or have become exiles, for conscience’s sake.

Conclusion

Therefore, we come to these conclusions on the question of am ne sty :

1. As United Stat es citizens, we believe th at reconciliation is more imp orta nt 

for our nati on tha n the pun itive wr ath of the law. We favor unconditional 

amnesty for all those who due to an act of conscience are alie nate d because of 

war. We recommend the officers of Annual Conferen ce make these views known 

to the Preside nt and app rop riat e persons in Congress.

2. As Chr istians we believe th at our min istry of reconciliatio n begins now. 

Whatever the government does, we must begin worki ng now to brin g recon ciliation between those who have become s epa rate d because of the ir views on war. 

We recommend the following ac tio n:
568

(a ) We recommend th at our members and local congregations provide* fl 

suppo rtive community for all persons who desire recon ciliation with the ir government, families, and/o r local communities. This might involve such activ ities 

as providing a conte xt in which persons can talk with their par ents or children, 

providing a home for those who need a place to live while becoming ree stablis hed 

in a community, helping men who choose to face a prison experience.

(b ) We recommend our General Board provide progra m and resources to 

help members and local congregations be agen ts of reconci liation for persons 

alienate d from the ir government, the ir families and/o r the ir local communities. 

This might involve communication with and sup port of exiles and deserters 

in vario us parts of the world, publicity on the services, and educat ion of local 

congregations.

We pray th at reconciliation can become a rea lity and th at our natio n can 

become unified arou nd purposes which reflect the will of God in our time.

[F ro m th e W as hi ng to n Star-N ew s, Ja n. 5, 1974 ]

Laird Airs Amnesty Plan Discussed During War

Form er Defense Secre tary Melvin R. Laird revealed today th at he ordered 

a conditional amnesty plan for dr af t law viola tors prep ared while Americans 

still were dying in th e Vietnam war.

Laird, now counselor to the President for domestic affairs, said he believes 

“we have alway s felt in thi s country th at justice must be administered with 

compassion and mercy.” Congress will deal with the amnesty issue before the 

1976 elections, he said.

“We didn’t go p ublic with it, ” Laird said of the secret Pentag on amnes ty discussions, “because we were in a position in which people still were being d raft ed 

and people still were dying.

“Now, for the first time in a long time, Americans are n’t dying in a war. ”

“I thin k there can be some sor t of service for these people,” Laird said of 

Americans who fle<l from their country rather tha n serve in the mili tary durin g 

the war.

“Whe ther th at service should be in the mil itar y or in hospitals or in other 

areas, and whet her it should be for six months or two years, I’m not prepa red 

to say.”

With those comments, Laird stepped into the amnesty controversy harde ned by 

Pre sident Nixon, who on Jan . 31, 1973, said, “Amnesty means forgiveness. We 

cann ot provide forgiveness for them.”

In an interview with Scripps-Howard newspapers, Laird said he had former 

Army Secretary Robert F. Froehlke prepare a plan while American forces were 

engaged in the Vietnam war.

Reached in Stevens Point, Wis., where he now heads an insur ance company. 

Froehlke said the move g rew out of a series of “friend ly conve rsatio ns” he and 

Laird had on the amnesty issue while both served in the Pentagon.

“I felt strongly, and I know th at Mel did too, th at it didn’t make any sense 

to tal k (public ly) about amnesty while you were dra fting people and kids were 

being killed,” said Froehlke.

Now th at American involvement in the fighting has ended, however, Froeh lke 

said, he is afrai d “99 percent of the American people will jus t forge t about the 

problem.

“W’e should look a t it. Now is the time,” Fro ehlke said.

“Young people make mistake s. We should to the best of our ability forgive 

and forget. We can ’t go into this w ith a vindictive a ttitud e.”

Froehlke said he would be willing to back “as little as two or thre e month s” 

of compensatory public service for draft law viola tors and mili tary dese rters 

who wa nt to r etu rn home.

“Congress will deal with the issue eith er in this session or in the next,” Laird 

predicte d.
569

[From the New York Times, Feb. 7, 1974]

Ft. Dix : Awaiting Trial

(By Lewis Simon)

Fort Dix. N.J.—The first anniver sary of the Paris cease-fire accords th at 

ended our ground combat role in Vietnam was marked Jan . 27. For me, th at 

date also mark ed the end of my first month in the Fo rt Dix stockade, awaiting 

tri al for desertion. My crim e: refu sal to accept mil itar y duty in Vietnam.

Locked behind these bars, I find it painful to realiz e th at for most people the 

Vietnam era is alre ady history. In some circles, it ’s considered bad tas te to even 

mention the wa r now. Many public officials have encouraged people to believe 

that a decade of suffering and death in Indochina is best forgotten. Despite the ir 

feeling tlia t the Vietnam involvement ushered in the most disgracefu l period in 

America’s histo ry, people t ry, understa ndab ly, to put the experien ce behind them. 

But for me and my family, and the tens of thou sand s of families like us, the 

Vietnam era continues.

Despite the univ ersal denu nciation of ou r war policies in Vietnam —even by t he 

archite cts themselve s—we who resis ted the war are d aily prosecuted, imprisoned, 

or brand ed with a “bad” discharge.

Five years ago this las t Chris tmas, I faced the most difficult decision of my 

life. I could eith er car ry out mil itary policies I learned to abhor or I could 

quit the Army. My decision did not come easily, but only after months of personal anguish . Duri ng basic training , the re were wall poste rs th at port rayed 

the dismal effects for anyone going A.W.O.L.: loss of pay, ran k and priso n time. 

At the bottom was a mother of a des erte r sobbing, her face hidden in he r hands, 

with the captio n “Fam ily Disgra ce.”

When I decided to quit the Army, the sobbing mother-figure never entered my 

mind. By then, I had already seen and learned too much th at was disgracefu l 

within the mil itar y to worry th at my family’s “honor” could be rela ted in any 

way to the perv erted values of the mil itar y command in Vietnam.

I know only too well the mi lita ry’s brand of “just ice.” In adva nce of any 

hearin g. I have been adjudg ed gu ilt y; all th at ’s lef t is the facad e of a tri al 

and sentencing. The same military and civilian commanders who conducted the 

war in Vietnam are prosecuting me and tens of thous ands of other resiste rs 

rathe r tha n adm ittin g th at they themselves are responsib le for the dest ruct ion 

of Indochina and the thousands of American casua lties.

The question of who ar e the real crim inals must finally be p ut into perspective.

We who resis ted committed only the “crime ” of refusing to carry out illegal 

policies in Vietnam —we not only need amnesty, we deserve it.

[From the New York Times, Oct. 19, 1973]

Vietnam Veterans Are Critical of Discharges T hat “Stigmatize”

Washington, Oct. 18—A group of Vietnam veterans who received less than 

honorable mil itary discharges said today th at the “bad ” d ischar ges were a resu lt 

of the ir opposition to the Vietnam war and racism in the arme d forces and 

had “stigmatiz ed” th em for life.

The charges came in the second of a seri es of unofficial hearings before the 

ad-hoc Congressional amnesty panel presid ed over by Rep resentati ves Bella S. 

Abzug, Democrat of Man hatta n, and John Conyers, Jr., Democrat of Michigan.

The young veter ans, blacks and whites, told of the ir early opposition to the 

war. and. for some, desertion, which led to the ir unde sirab le disch arges and 

subsequent loss of G.I. education al and medical benefits.

The armed forces has five types of discharges. An honorable discharg e is 

received by about 90 per cent of those persons leaving the service. A general 

disch arge is something less tha n an honora ble disch arge but still entitle s the 

ex-serviceman to all G.I. benefits, according to the Veterans Administration.

31-658 0—74 -38
570

REQUIRED BY LAW

A dishonorable discharge is awar ded by a cou rt-m artial and its recipient 

cann ot receive any benefits. Decisions on benefits for those who receive the o ther two types of discharge—bad conduct and undesirable—are up to tlie Veterans 

Administra tion. According to the officials of the V.A., the agency is required by law to “go back and review the circumstan ces surround ing the disch arge.” If the V.A. finds 

there was “willful and per sist ent misconduct” by the discharged person, then 

no benefits are grante d. But today's witness es contend discharge, which is decided in an administra tiv e proceeding rather tha n by a court-m artia l, scar red them for life. Dwight Green, a 22-year-old resident of New York City, told the panel th at his und esira ble disch arge had resulted iii his being denied unemploym ent benefits, 

V.A. benefits and a decent job. Representati ve Edw ard I. Koch, Democrat of Ma nha ttan , has introduced legis latio n th at would reduce the number of kinds of discharges from five to three. One of these thre e types would permit tlie armed forces to discha rge a person for any reason. Rut Mr. Green advocated just one type of discharge. “It should be just a release—the Army should n’t be given the power to bra nd, ’’ 

he said. Ir a Dubois, another of the almos t 600,000 form er servicemen who have received less tha n honora ble discharges, received a bad conduct discha rge from the Marines af ter lie “refused anyt hing to do witli tlie mi lita ry” including wea r­ ing a uniform. He told the panel lie had refused because lie bad seen “so many people blasted away to hell in Vietnam” and because he had become a “selfdest ruct ive person.”

[From the New York Times, Nov. 15, 1973]

A Welfare Mother

(By Kathleen A. Berg lund)

Burlington, Vt.—My husba nd is one of those who refused to join the Army 

duri ng the Vietnam war. Joh n is not a “dr af t dodger,” he never made any atte mp t to run or bide from legal author ities in this country. On the contrary, 

lie remain ed at home and worked steadily from the time of his ini tial refus al to join the Army (tw o and one-lialf year s ago ) unti l he left for prison. His record was so good tha t the judg e allowed him one week after sentencin g to make 

arra nge men ts for Eric (our son) and me liefore.re porting toj>riso n..I t is obvious 

th at J ohn is not a dange rous person. It is inconceivable th at an y man who refu ses to join the Army for moral reasons, knowing th at a refu sal means a prison sentence, could be considered dangerous. John refuse d to join the Army because lie believes it is morally wrong to kill and wrong to be any pa rt of an organ ization designed f or the destr uctio n of human lives. If refus ing to be responsible for the death of another huma n being is a crime, 

then I belong in prison also. It can be argue d that John is in prison not for moral reasons but because he broke a law. But then the question ar is es : has the Gov­ ernm ent a right to select cer tain indiv iduals to do its killing. Isn ’t it slavery when a man is forced to join an organ ization he believes to be morally wrong and 

fu rth er forced to commit actio ns he believes to be morally wron g? Moral issues can be debated endlessly with no resolution, but there is also 

a ma teri al side to this problem. We were never rich while John was working, but we never went hung ry either. John worked hard because he believes it was 

his responsibility to supp ort his family and now th at he is not here we have no choice b ut to live on welfare. Now I know what it feels like to be p oo r: there are never enough food stam ps to las t until the end of the month and buying a pai r of shoes for my son has become a maj or investm ent. If not for generous frien ds 

and relati ves, we would be in se rious trouble. Living on wel fare is difficult, but living on welfare when my husba nd is per ­

fectly willing to and capab le of supp orting us is horrible. When I stand in line 

to buy food stamps, I see people who need the money more tha n I do. Tax payers complain about the growing numbe r of welfare recipients and higher taxes, yet 

the re are so few who make any atte mpt to change the situ atio n. If my husband
571

was released from prison, the Government would save $268 a month plus wh atever i t costs to suppor t J ohn in prison.

To sa.v tha t I am outraged by the injustice of this s itua tion would be an und erstatement. I marr ied John because he was the most loving, beautifu l human 

being I had ever met. I, more tha n anyone else, know th at he does not belong 

in prison.

There is no logical reason for keeping John or any othe r d ra ft res iste r in prison. 

They can not be reha bilitate d because they have no need for reha bilitation. It is 

tru e that they are being punished, but in punishing innocent men society suffers. 

Can Americans afford the financial burden involved in keeping these men in 

prison? Can the United Stat es afford the loss of even one moral huma n being? 

Isn ’t it time for amn esty?

[Prom the New York Time s, Ja n. 30, 1973]

Amn es ty for Draft Resist er s I s E xpected To Be Divisiv e P olit ica l I ssu e

for Years

FORCES AS KING PARDONS ARE GATHER ING STRENGTH 

(By Anthony Ripley)

Was hi ng to n, Jan . 29.—Like the Vietnam war itself, the issue of amn esty for 

those who refused to fight seems likely to be a divisive and emotional pa rt of 

the American political scene for many years.

It raises once again the old catch phra ses and stances th at became such a 

fam iliar p art of politics d urin g the long war.

Backe rs of amnesty—church groups, an tiw ar and an tid raft act ivists and civil 

libe rtarians—argue tha t, with the wa r over, it is only righ t to forgive and forget.

Opponents of amnesty—vete rans groups, the Depa rtme nt of Defense and conservative politicians of both part ies—arg ue tha t lawbr eakin g and disloya lty 

cannot be tol erat ed in Am erican society.

This week, amnesty forces are gathering stre ngt h and making plans for an 

inte rna tion al conference of a nti wa r exiles to be held in Paris Feb. 19 t hrou gh 22, 

according to Tod Ensign of the Safe Ret urn Committe e in New York City.

OPPONENTS BIDE TI ME

Opponents of amnesty, confident that, they have the bulk of American society 

behind them, are biding their time.

Patric k E. Carr, commander in chief of the Veterans of Foreign Wars, was 

briefed on the (piestion by his staff for a news conference in Washington. But 

the (piestion never came up. The V.F.W. opposes general amnesty .

In Massachusetts, Sta te Rep resentati ve Peter Har ring ton introd uced a bill 

to requ ire the sta te to defend any dr af t res iste r who retu rne d home and faced 

prosecution.

Jerome Riley, a 26-year-old former Vietnam para trooper, lat er confronted 

Mr. Har ring ton and gave him medals and campa ign ribbons “in memory of all 

my comrades who died there , who gave the ir lives so th at you could make a 

mockery of justice and democracy and the American system.”

Amnesty emerged as an issue in the Pre side ntia l campaign. Both cand idate s 

had troub le w ith it.

President Nixon was dogged by an early stat eme nt th at he would be “very 

liberal" and yet demand tha t dese rter s and dr af t dodgers i«iy a price for brea king the law. He turned tougher as the campa ign went along and “very libe ral” 

was not hea rd again.

M’GOVERN VIEW HARDENED

Sena tor George McGovern began a year before Election Day with a general 

call for amnesty . By September he excluded dese rters and by October he was 

suggesting alt ern ative service.

Each camp asse rted its man stood firm. It was clear, however, th at both 

cand idate s ha d found they were sta ndi ng in a fire.

The ir shi fts were a signal th at though seven ye ars of w ar migh t be a lmost over, 

some of that wa r’s central questio ns—bit ter and divisive ones—remai n facing 

the public and will not go aw ay : Was it a just war? Were the young men who
572

avoided the fighting cowards and tra ito rs who betra yed the ir country or were 

they heroes and pat riots who showed the ir country the way to a new high level 

of mo rali ty?

Positio ns on the ma tter are rema rkab le for the ir passion.

Henry Schwarzscliild, of the American Civil Liberties Union’s projec t on 

amnesty , said fail ure to gra nt it would “ultimate ly wreak terr ible damage to 

this country.

“It is an absurd and trag ic irony if Pres iden t Nixon can make peace with the 

enemy inc arn ate in Peking and Moscow and canno t make peace with the sons of 

our own co untry ,” he said.

Representati ve William J. B. Dorn, Democrat of South Carolina, told the 

House of Represent atives in A pr il: “Amnesty for those who broke the law and 

fled the country is an incredib le proposal. Amnesty would be a severe blow to 

the defense of our n ation duri ng these criti cal times.

“Amnesty would underm ine all law. It would be a step toward anarc hy, chaos 

and a breakd own of all discipline so necessary for the survival of al our democratic institu tions. ”

GENERAL INT EREST STRESSED

Henry Steele Commager, the historian, told the Senate Subcommittee on Admin istrativ e Prac tice and Proce dure last March 1 th at the ma tter should not be 

decided on short-term politics or anger.

“A nati on does not adopt imp orta nt policies—policies affectin g the lives of 

hundreds of thousands of its young people and affecting the whole fabric of the 

social and moral order —out of petulan ce or vindictiveness ,” he said. It bases its 

judgm ent rathe r on the i nterests of the comomnwealtli.

“Who knows what is u ltimately just or what will utim atel y satisfy the complex 

passions of a vas t and hetero geneous society?

“We should make our decisions on the question—complex enough to be sure— 

of what appe ars to be the long-range int ere st of the nation.”

The word “amnes ty” itse lf is legally ill-defined. It is not in the Constitution. 

It means grantin g “oblivion” a general pardon for a past offense and is generally 

used to cover a whole class of citizens. Pardon, in contr ast, removes only the 

penalty for a pas t offense and generally is defined as being offered to a single 

individual.

The Supreme Court in Brown v. Walk er in 1895 noted that the Constitution 

specifically gives the Pres iden t power to pardon “for pas t offenses against the 

United Stat es except, in cases of impeach ment.” The Court added such languag e 

does not bar Congress from passin g “Acts of general amne sty.”

FIVE BILLS INTRODUCED

Amnesty for Vietnam war objectors has been promoted by churches and 

private groups. Five bills were introduced on the subject in the 92d Congress.

The bills ranged from universal, unconditional amnesty under the “War 

Resister s Exon eratio n Act of 1972,” proposed by Repr esentative Bella S. Abzug, 

Democrat of New York, to a limite d amnesty bill proposed by Sena tor Robert 

Ta ft Jr. . Republican of Ohio.

Sena tor Taf t’s bill would have left deserters to the mercy of mili tary courts 

while offering amnesty to draft resisters if they volunteered for some alt ern ative to combat, such as service in veterans’ hospitals.

The numbe r of men covered by any amnesty varies widely and in many cat egories is simply guesswork.

Warren W. Hoover of the National Interreligiou s Service Board for Conscientio us Objectors named five catego ries of those possibly affected by amnesty.

They include exiled dr aft resi ster s and mili tary deserters, estim ated at 60.000 

to 100.000; resi ster s and dese rters in civil or mili tary prisons, on probation or 

facing court action. 10,000; resiste rs and dese rters underground in the United 

States, about 80,000 a yea r with many quickly return ing : Vietnam-era veter ans 

with less tha n honorable discharg es. 300.000. and an unknown number of civilians 

charged with antiw ar acts.

The largest of the categories is made up of those veteran s with dishonorable, bad conduct, undesirable or general discharges from service. In the past. 

Mr. Hoover said, such men were not considered in amnesty actions. However, 

those who feel the war is immoral believe anyone who lost any measu re of 

civil righ ts because of it should be given amnesty, even convicted wa r criminals.

Almost all of those urging such a broad, plenary and uncond itional amnesty, 

refuse to include in the amnesty those men convicted of crimes of violence.
573

History offers a Pre side nt and the Congress at lea st 34 pas t amne sties to 

study. They stre tch from the Whisky Rebellion amnesty of 1795 und er George 

Washington to the pre-Ch ristm as amne sties g ran ted by Ha rry S. Thum an in 1945, 

1947, and 1952.

Mr. Truman 's last amnesty was for all convicted of dese rtin g between the 

end of the World War II and Jun e 25, 1950, when the Korea n war broke out. 

It was done in the lame duck days when his Adm inistratio n was leaving office. 

There w’as no amnesty a fte r the Korean War.

Following World War II Mr. Tru man had set up a special hea ring hoard 

to look into 15,805 cases of dr af t evasion, desertion and like crimes of men who 

were in Federal custody. The hoard recommended case-by-case decisions and 

only 3,041 were p ardoned.

In many ways, Vietnam is a unique situ atio n.

There h as never been a longer Americ an w ar, and n ever a high er desertion rate .

Never before has there been such a broad definition of wha t constitu tes legitimate conscientious objection: Moral and ethical objection to war, according to 

the Supreme Court in 1970.

It was a definition th at changed duri ng the progress of the war. Some conscientio us objectors went to prison or to Cana da in the early days for beliefs 

th at would have won them a d ra ft deferm ent a few ye ars late r.

The c ourts changed, too.

In 1967, the Jus tice Departm ent prosecute d 996 cases of dr af t violation. Convictions th at year ran 75 per cent with 89 per cent of the guilty going to prison. 

By 1971, 2,974 cases went to court. Only 35 per cent were convicted. Almost 63 

I>er cent got probation.

The wrar poses othe r philosophica l questio ns as well. Dr. Willard Gaylin, professor of psychiatr y and law at Columbia Unive rsity Law School said at the 

Senate hearings tha t the war res iste rs’ crimes might have been th at they were 

“pre mature prophets” who “raised a questio n and came to a conclusion which 

was at one time unpo pular and now is the accepted view of the ma jori ty.”

RESPO N SIB IL IT IE S CITED

John H. Geiger, national commander of the American Legion, told the committee tha t dese rters and evaders had refused to accept the ir responsibilities as 

citizens—responsibilities that cannot be “applied to some and evaded by o thers.”

"We ca nnot believe that the Congress will ever decide tha t those who violated 

the law have the superio r moral position to tne neoiuen i., Lie Congress and to 

the men who served. If we establis h this as the correc t view, the day will arr ive 

when there will be little furth er use for the Pres iden ts, the courts or the 

Congress.”

Form er Rep resentati ve Charle s O. Po rte r of Oregon has organized a group 

called Amnesty Now. He said in a telephone in ter view :

"We have to charact eriz e this war. Was it a good war or a bad wa r? If i t was 

a bad war, if the young men were righ t and the old men were wrong, then you’ve 

got to have amnesty. And only a stron g nation can give i t.”

Mr. Hoover w as optimistic a bou t the amnesty question.

“I am certain chances would be bet ter tha n af ter any previous American war 

experienc e,” he said.

The Nixon Adm inis tration’s view, endorsed by the President, was stated by 

Vice President Agnew in a speech before the Veterans of Foreign War s in August.

He said: “On every ground I can thin k of—historic al, legal moral and pra ctical—the idea of general amne sty with out penalty or altern ativ e service is tota lly 

witho ut merit.”

[From the New York Times, Feb. 13, 1974]

T he P ardoning President

Pres iden t Lincoln’s generosity of spirit can be found most notably in his 

trea tment of Confe derate prisoners and Union deserters . He took his role as 

Commander in Chief seriously, yet even dur ing the wa r’s fury bent mil itar y 

rules to save lives and reh abilitate men. In messages to Congress and the people, 

he pointed out th at his proclamation of amnesty was “amply justified by the 

Constituti on.”

With one pen he signed orde rs for new d ra ft ca lls; with ano ther he spar ed the 

lives of young men who, for one reason or anot her, refuse d to fight for the ir 

coun try or even ran off the field of battle. If the re was a con tradictio n here th at 

displeased Lincoln's generals, it was a con tradictio n in which t he h ea rt trium phed.
574

Punishment and false patr iotism were not to be assigned to his name. To 

Secretary of War Stan ton he wro te : “Regard ing the fourteen-year-old sentenced 

to be shot for desertion, let us inste ad pardon this drum mer boy and send him 

back home.” To General Sher idan he telegr aph ed: “Suspend execution of deatli 

sentence and forwar d record of tri al to me for examination. If a man had more 

tha n one life, I thin k a lit tle h angin g would not hu rt thi s one, but as he has only 

one I believe I will pardon him.”

Today, more tha n a yea r after the end of the military (tho ugh not financ ial) 

presence of Americans in Vietnam, aft er a war th at many in Congress and the 

country considere d unconsti tutional, there are s till tens of thousand s of citizens 

who are being punishe d with out trial by a vindic tive Administra tion. These 

include dr af t resi ster s who are in prison or underground in the ir own co un try ; 

deserte rs living in Canad a or Europ e who are afr aid to come hom e; vete rans 

with less tha n honorable discharges because of an tiw ar activities who cannot 

get an education or a job. And to these must lie ad ded the ir anguished paren ts, 

wives a nd children.

Lincoln ’s Birthday and the days th at follow provide occasion for the Federal 

Government to show the same spi rit of ddtente toward American war resisters 

th at Washington is showing tow ard foreign governments whose weapons were 

aimed, not long ago, at American men under arms. To overlook these Americans, 

who are twis ting in the wind of vengeance, is to perpetuate the divisions caused 

by the Vietnam war.

The pardoning sixteenth Pres iden t called those in need of amnesty what they 

still a re today, “neighbors and neighbors’ sons.”
575

AMNESTY:

The Record and the Need

by John M. Swomley, Jr.

“ . . . it appears to me no less consistent with the

public good than it is with my personal feelings to

mingle in the operations of Government every

degree of moderation and tenderness which the

national justice, dignity and safety may permit.”—

(from George Washington's proclamation of amnesty. July 10. 1795.)
576

This document is meant to be a study guide for those who wish to 

learn about and discuss the issue of amnesty—amnesty for persons 

who have been unable, because of their convictions, to participate in 

the war in Vietnam. The amnesty which is sought is for those 

American citizens who are in prison, who are in self-imposed exile 

from their country, o r who have been forced to desert from the armed 

forces because o f their conscientious opposition to the war.

The questions at the end of Dr. Swomley’s article are intended 

only to begin discussion and to assist individuals and groups think 

through the issues which the article raises. Surely, there are many 

other areas for discussion than those raised by the questions. It is 

hoped that this docum ent will be used for study in churches and 

synagogues, for the issues raised will grow increasingly urgent as more 

and more persons go into exile, are sent to jail, or are forced to desert 

the armed forces because o f the war in Vietnam.

Portions of this article originally appeared in the January 1, 1969 

issue of the National Catholic Reporter, under the title of “Memo to 

Nixon: Why Not an Amnesty?” They are reprinted here with the kind 

permission of the National Catholic Reporter and of Dr. Swomley.

John M. Swomley, Jr., who has his Ph.D. in political science, is 

Professor o f Social Ethics at St. Paul School of Theology, Kansas City, 

Missouri. He was formerly executive secretary of the Fellowship of 

Reconciliation and has written a number of books, including The

Military Establishment (Beacon), American Empire and Liberation

Ethics (Macmillan). He is a member of the National Comm ittee of 

Clergy and Laity Concerned and of the National Board of the 

American Civil Liberties Union.
577

AM NE ST Y: THE RE CORD AN D TH E NE ED

More than 100,000 young Americans are either in exile or have 

otherwise refused to comply with draft laws. An even larger number 

of men who entered the armed forces have been classified as 

deserters.1

 Still others, perhaps as many as 100,000 to 200,000 

civilians, have been arrested and convicted for anti-war activity; in 

addition, numbers of soldiers have been disciplined and placed in 

military stockades and prisons.

Some men and women have gone to prison for dramatizing their 

opposition to war and conscription by burning draft cards, damaging 

draft files, or by engaging in other forms o f civil disobedience.

Many of those who refused to obey draft laws felt they could not 

qualify as conscientious objectors to all war. Some objected only to 

the war in Vietnam while others either believed they could not meet 

other conditions imposed by the Selective Service law or for othe r 

reasons did not cooperate with the drafting process. Those who 

deserted differ from those who refused to be drafted in that they 

became opposed to the war or to military life after they entered the 

armed forces rather than before.

All these men and women are political offenders rather than 

typical violators of the law. A political offense generally refers to 

statements or actions which have as their primary purpose 1) the 

obeying of conscience rather than a specific law, or 2) the protesting 

of governmental policy, or 3) the achieving of change in government. 

Those who have engaged in political activity against the war in 

Vietnam or conscription offer no threat to life or personal property 

and generally no threat to political institution s once the injustices 

they have protested have been ended. Nevertheless their existence as a 

class of political offenders threatens the well-being or harmony o f the 

nation.

Societies can become or remain free only if their political 

dissenters are permitted to contribute to the political life of the 

country. Any society is endangered if it has thousands, let alone 

hundreds of thousands of members who have been alienated to the 

point of disobedience, by government prosecution of a war they are 

convinced was unjust or served no defensive purpose. Their punishment or threatened punishment, including their loss of voting or other 

civil rights, rankles and may even anger or otherwise alienate a wider 

circle. These political offenders are so numerous that they sympathetic families and friends easily include more than a million adults 

scattered throughout the nation.

What is Amnesty?

The word amnesty comes to us from the Greek word amnestia

which means no t remembering, oblivion, intentional overlooking.

Today it means “a general overlooking or pardon of past offenses by

1 A deserter is one who is absent for more than 30 days fro m his m ilitary 

post with out leave. In 1968 the Pentagon reporte d more than 53,000 deserters. 

During the first 10 months o f Fiscal Year 1971 the Ar my alone reporte d 

68,449 deserters.
578

the ruling authority.”2 It differs from a typical pardon in that it 

involves a whole class of offenders rather than one or a few 

individuals. The Supreme Court of the United States has made 

another distinction: “A pardon relieves an offender from the 

consequences of an offense of which he has been convicted, while 

amnesty obliterates an offense before conviction; and in such case, he 

stands before the law precisely as though he had committed no 

offense.” 3

Who Has Authority for Amnesty?

The United States Constitution gives the President “power to grant 

reprieves and pardons for offenses against the United States, except in 

cases of impeachment.” The framers of the American Constitution 

borrowed the idea from England, where it had been firmly imbedded 

in Anglo-Saxon law for centuries. Amnesties have been declared in the 

United States by Congress; by the President acting with the 

authorization of Congress; and by the President alone. A post-Civil 

War dispute between Congress and the President over the power o f the 

President to grant amnesties was resolved by Supreme Court decisions 

which gave effect to Presidential amnesties. The Court refused to 

distinguish between the Presidential power to pardon and to grant 

amnesty, and in effect held that the power to pardon includes the 

power to grant amnesties.4

Amnesty in Other Countries

The first recorded amnesty occurred about 403 B.C. when 

Thrasybulus, after the expulsion of the Tyrants from A thens, forbade 

any punishment of citizens for their past political acts and exacted an 

oath of amnesty to eliminate civil strife from legal memory. Julius 

Caesar again and again granted amnesty to his political and military 

foes.

In French history, there has been a number of amnesties. Probably 

the most famous was the Edict of Nantes, a proclamation issued by 

Henry IV in 1598 which put an end to persecution and gave legal 

status and religious liberty to the Huguenots. Napoleon’s imperial 

decree of 1802 provided amnesty, as did amnesties after the civil 

disturbances of 1871 and the Paris Commune.

In English history, the best-known amnesties were those after the 

Civil War in 1651; one proclaimed by Charles II in 1660; and the 

amnesty of 1903 to the Boers in South Africa.

Various countries have granted post-war amnesties to both enemies 

and to their own citizens: for example, France, Norway, Germany, 

Belgium, Japan and the Netherlands granted amnesties to persons 

engaged in compromising activities during the second World War. 

General Lucius Clay proclaimed an amnesty for more than a million 

German political offenders under 27 years of age, and General 

Douglas MacArthur similarly liberated almost a million political 

prisoners in Japan following World War II.

2

 The Oxford English Dictionary

3 U.S. v. BassettS Utah 133 (1887)

4 U.S. v. Klein, 80 U.S. (13 Wall) 147 (1872), and Armstrong v. U.S. 80 U.S. 

(13 WaU) 156 (1872)
579

Amnesty in the United States

George Washington on July 10, 1795 granted “a full free and 

entire pardon” to those involved in an insurrection in Pennsylvania 

against the United States. In explaining this to Congress, he said:

For though 1 shall always think it a sacred duty to exercise with 

firmness and energy the constitutional powers with which 1 am 

vested, yet it appears to me no less consistent with the public 

good than it is with my personal feelings to mingle in the 

operations of Government every degree of moderation and 

tenderness which the national justice, dignity and safety may 

permit.

John Adams in May, 1800 granted an amnesty for those involved 

in another “wicked and treasonable insurrection” in Pennsylvania 

which had occurred a year earlier. James Madison proclaimed in 1815 

“a free and full pardon of all offenses .. . touching the revenue trade 

and navigation” in the vicinity of New Orleans. Andrew Jackson in 

1830 pardoned all deserters at large, provided that they never again 

served in the armed forces.

During the Civil War, on December 8, 1863, Abraham Lincoln 

offered a full pardon to those who “participated in the existing 

rebellion” who were prepared to take a prescribed oath. (Certain 

classes of persons were excepted). Lincoln also directed the War 

Department in February 1864 to see to it “that the sentence of all 

deserters who have been condemned by court martial to death . . . be 

mitigated to imprisonment during the w ar. . .”

Congress in 1862 had authorized the President to grant amnesties, 

but Lincoln asserted that his auth ority was derived not from Congress, 

but from the Constitution which gave him “absolute discretion” on 

this point.5

Following the Civil War Andrew Johnson proclaimed a partial 

amnesty in 1865, another in 1867 and finally, on July 4, 1868 a full 

pardon to every one who “participated in the late insurrection of 

rebellion except for those under indictm ent for treason or other 

felony.” Finally, on December 25, 1868, he granted a Christmas 

“amnesty for the offense of treason against the United St ates . . . ” 

President Johnson ’s first proclamation stated his reasons for pardon:

A retaliatory or vindictive policy, attended by unnecessary 

disqualification, pains, penalties, confiscations and disfranchisements, now as always could only tend to hinder reconciliation 

among the people and national restoration, while it must 

seriously embarrass, obstruct and repress popular energies and 

national industry and enterprise. ..

Congress in 1867 had repealed its authorization to the President to 

grant amnesties, hoping to discourage Johnson from granting them to 

former Confederates. Johnson proclaimed an amnesty nonetheless 

and. despite challenge, it was enforced. In 1898 Congress itself 

authorized a universal amnesty following the Spanish American War.

S 77ie Messages and Papers o f the Presidents 1789-1894, pp. )88-189. J. 

Richardson, ed itor, 1896.
580

There were no general amnesties following World War 1 and II.

Calvin Coolidge on March 5, 1924 restored citizenship and civil 

rights to those who had deserted from the military or naval forces 

between November 11, 1918 (Armistice) and the technical ending of 

World War I. Franklin Roosevelt issued a Christmas pardon in 1933 

for persons convicted under the Espionage Act and conspiracy to 

violate Section Five of the Selective Service Act of 1917, and who 

paid the penalty the law imposed on them. This was a limited 

amnesty, since it did not pardon fugitives from justice or men 

sentenced by military courts. (It was in these military courts that the 

best-known conscientious objectors or absolutists were sentenced).

Following World War II, President Harry Truman was under great 

public pressure to grant an amnesty. He appeated to comply with the 

demand while actually avoiding it by appointing an amnesty board of 

persons hostile to the idea of amnesty. On their recommendation, 

1,523 of the 15,805 who had been convicted under the Selective 

Service Act were pardoned on December 23, 1947. For the most part, 

Truman’s phony 1947 amnesty excluded Jehovah’s Witnesses, political prisoners, and those willful violators of the law who had walked 

out of the conscientious objector camps. Earlier, on Christmas in 

^94 5, Truman had granted full pardon to all former prisoners who 

had served honorably in the armed forces for at least a year. Thus, 

former criminals were pardoned while men whose beliefs led them to 

violate the Selective Service Act were not.

Th e. violators of the Selective Service laws from World War II 

through the Korean War and the Vietnam War, as well as all persons 

subject to prosecution for or convicted of political offenses from 

1933 to this date have neither been amnestied nor pardoned and are 

therefore currently deprived of some of their rights as citizens.

Why Amnesty Now?

Amnesty is usually granted only for political offenses against a 

government. In a number of the Presidential pardons and amnesties 

described above, the offense involved actual war or insurrection 

against the United States, which the Cons titution calls treason. The 

men and women who have been convicted or are liable to prosectuion 

for political offenses today are not charged with military action or 

insurrection against the United States. Their offense is either that they 

valued freedom too highly to submit to conscription or that their 

consciences did not permit them to contribute even indirectly to the 

war in Vietnam. Americans may rightly differ about the wisdom of 

their actions, but it is quite clear that acts of these objectors in no 

way involved the destruction of life or armed revolt against the 

government of the United States. When Presidential amnesty has been 

granted for the more serious offense of armed insurrection, why 

should amnesty be withheld from men who were apparently motivated by humanitarian opposition to war?

2) One major purpose of amnesty is to heal the wounds and 

divisions of war; to restore confidence in government on the part of 

those who have been alienated by the war. It is obvious that former 

Presidents of the United States had such healing in mind after the 

armed uprisings in the 1790s and the 1800s. The division in the
581

United States today is just as real. It is not based on sectional 

grievances, nor is it confined to any part of the United States. Rather 

it is chiefly defined by age-dra ft age-or by the kind of idealism that 

expected the United States to behave differently from othe r nations. 

Still, the fact must be acknowledged that the U.S. war in Vietnam has 

been opposed and condemned by many highly respected citizens in all 

walks of life and of all age groups. Whatever one may think of the 

phrase “credibility gap,” it does express a loss of faith in their 

government by thousands of Americans. An act of amnesty now 

might help restore their faith in their government.

2) Another purpose of amnesty is to bring back into useful 

citizenship those who are now barred by legal restrictions. Many of 

those sentenced for draft or war resistance will be barred by state laws 

from voting, or running for public office. Others may find it difficult 

or impossible to enter certain professions such as law, with a technical 

felony on their records. Needless to say, the thousands in exile from 

the United States would be valuable assets to American society were 

they able to return with freedom from imprisonment.

3) Amnesty would also end the emotional and economic suffering 

of the families o f those who are in exile or who are otherwise subject 

to pro'secution. Many if not most of the well-educated white upper 

and middle class whites were able to avoid the draft and the war. They 

entered the reserves or received college deferm ent or in some cases 

were adjudged sincere conscientious objectors. It was chiefly the 

children of the poor, or blue collar, working class parents, often 

members of minority groups, who submitted to induction. They 

became deserters or were sentenced by court-martial because they 

became opponents of the war only after their experience in the armed 

forces revealed the cruelties and the wrongness of fighting in Vietnam.

These parents of deserters and others in exile are less able to travel 

to other countries to see their sons and daughters or to phone them 

periodically. They are unable to assist them if they are unemployed or 

otherwise in need. In some cases, aging parents or a surviving parent or 

brothers and sisters, are in need o f the physical and emotional support 

of those who are subject to prosecution if they return home or who 

are restricted in their earnings because o f a conviction on their record.

These families, together with their friends and neighbors, are in 

varying degrees affected by the exile or imprisonment of persons they 

have known intimately as children and young adults. The renewal or 

increase of their confidence in their country and in their fellow 

citizens would be a by-product of amnesty.

4) The war in Vietnam is now seen by an overwhelming majority of 

Americans either as a serious mistake or as revealing the need to 

change our foreign policy. A Columbia University professor of 

constitutional law has written: “If the war is found to have been the 

basic mistake from which all else flowed, those who opposed it sooner 

and more vigorously than the rest of us are to be regarded as having 

performed a service through their illegal acts. They may well have 

sped the general realization of the war’s true character .. ,” 6

5) Prisoners of war are sometimes freed during war but almost

6 Prof. Louis Lusky, “Amnesty for Whom, and How Much?”, The National

Observer, March 11, 1971
582

always at the end of the war, in spite of their direct participation on 

the other side. There is an implied recognition that they did what 

duty and citizenship required of them. Governments ought similarly 

to recognize the devotion of some of their other citizens to a higher 

moral duty or citizenship that makes them disobey an order for 

induction or decide they cannot continue in the armed forces. 

Amnesty for those who opposed the war in Vietnam in the only ways 

they believed open to them at the time, would in effect be an 

acknowledgement by government of the serious moral dilemma in 

which the war placed many of its sensitive young citizens. The fact 

that these opponents of the war subjected themselves to prison or 

went into a self-imposed exile points to their courage rather than 

cowardice, to their conscience rather than to callousness. A democratic society should be able to recognize that no war is so just that 

conscious or unconscious injustice is not involved in it, and that some 

of those sensitive to injustice will refuse to participate in it.

Objections to Amnesty

1) Those who have violated the law should exp ect to be punished

instead o f being forgiven. Amnesty is not a matter of forgiveness but 

is the way the government can undo what the government itself has 

done. The 1964 election was won on a no-war platform. The 1968 

election was won on a clear pledge to end an unpopular war. Neither 

pledge was kept. Technically and morally it follows that a small group 

in Washington who nevertheless made the decision to enter an 

undeclared war, escalate it and continue it, broke the law. Those 

Americans who have incurred criminal penalties because of a war that 

should never have been begun should have the penalties removed for 

acts they would not have committed but for the war.

2) “A blanket amnesty would let all the so-called ‘high-principled’

o ff and with them it would let o ff all the ‘low-principled’-the stickup

men and wanted murderers who failed to register in order to flee

jus tic e.”^ There is no evidence that robbers or murderers went into 

exile because of the draft rather than to avoid beine caught for 

robbery or murder. In any event if there is a robber or murderer who 

is also a draft violator, an amnesty for the political offense o f resisting 

the war would not apply to those criminal offenses unrelated to the 

draft and the war. He could be prosecuted for the crime he com mitted 

instead of penalizing him solely for his actions on the war. Moreover, 

the mere fact that a few persons may have had previous criminal 

records does not justify different treatm ent for them on a different 

issue. If a man has served a sentence for violating the narcotics law 

and is no longer involved in narcotics he should not thereafter be 

punished again by withholding amnesty granted to others.

3) Instead o f blanket amnesty each p erson’s case should “be heard

in court and tried on its merits. ” 8

 The courts in the United States 

refuse to distinguish between political offenses and crimes against 

persons or property. To ask the courts to deal with each case is to ask 

that each person be prosecuted. In many cases draft and war resisters

7 Leavitt A. Knight, Jr., “The Amnesty Question for Draft Evaders: Are 

They AU the Same?” American Legion Magazine. May, 1972.
583

have already been tried by civilian or military courts. Their youth, 

inadequate education, and lower economic status often meant an 

inability to make an articulate defense in court or secure a competent 

attorney. For the courts to deal all over again with more than 100,000 

cases would be an intolerable burden on courts that are already 

heavily overloaded.

This case-by-case approach was followed by Harry Trum an’s 

three-man Amnesty Board which functioned like a parole or pardon 

board, because it was opposed to amnesty? Yet it excluded almost 

90% of the persons in need of amnesty, including large groups of 

Jehovah’s Witnesses, “the uneducated, minority group violators. It 

applied criteria such as previous convictions that eliminated lower 

class persons who are classically more often arrested and convicted for 

petty offenses. Even though the total number of cases before the 

Truman Amnesty Board was perhaps one tenth of the number th at a 

board would have to consider now, they spent a very few minutes 

going over each case history to decide a man’s fate.” 1 0

The whole idea o f amnesty is contrary to a case-by-case approach. 

The latter would punish those who are unacceptable to those doing 

the review, whereas amnesty is intended to heal division or restore 

harmony to the nation.

3) A general amnesty might have the e ffect o f lowering the morale

o f the armed forces, or making it less likely that others would enlist.

The best answer to this is that apparently none of the amnesties o f the 

past has resulted in such lower morale or unwillingness to enlist. A 

government that is concerned about healing the wounds of war and 

rectifying injustice is more likely to inspire a higher morale than one 

which seeks the last drop of blood from each enlisted man who runs 

afoul o f the law.

4) Am nes ty should be conditional on some kind o f "alternative

service” to the nation. Those who would be amnestied see such 

conditions as punishment or penance for refusing to participate in an 

illegal and immoral war. Others point out that two or three years’ 

alternative service in a government agency such as a veterans’ hospital 

or VISTA would take jobs away from those who need them solely in 

order to make those who resisted the war earn an amnesty. American 

Legion spokesmen object to such a conditional amnesty because men 

who would not fight in Vietnam will take jobs away from unemployed vetarans of that war. They also indicate that “the quality of 

service in V.A. hospitals and other agencies” would go down if they 

were staffed with men who viewed “government service as a sort of 

punishment.” 1 1

9

It was composed o f Owen Roberts who was also chairman o f a “ Citizens 

Emergency Comm ittee fo r Universal Military Train ing ;” James F. O’Ne ill, the 

police chief o f Manchester, N.H. and subsequently Nation al C omm ander o f the 

American Legion, and Willis Sm ith, who waged a racist campaign fo r G overnor 

of N orth Carolina.

l 0 Henry Schwarzschild, Director o f Project on Am nes ty o f the American Civil 

Liberties Union Fo undation, U.S. Senate Hearings on Am nesty, March 1, 1972.

11 Leavitt A. Kn igh t, Jr., loc. cit. The Legion also objects to a blanket 

amnesty.
584

5) I f there is, as some maintain, a growing disrespect for law in our

society, would n ot an amnesty fu rth er contribute to this breakdown

o f law and order? Respect for law begins with those who make and 

enforce the laws. If they violate constitutional provisions with respect 

to war, violate international law and other laws with respect to 

treatm ent of civilians and prisoners, they do not encourage respect for 

law by prosecuting those who would not engage in such immoral and 

illegal actions. Amnesty would erase such a double standard and in 

effect stop the prosecution of those who refused to aid and abet the 

larger crimes, placing them in no greater legal jeopardy than those in 

government who violated law on a major scale.

The concern about law and order relates chiefly to the growth in 

crimes of violence against persons or property. Those who are political 

offenders because they would not condone the massive violence in 

Vietnam would, if their civil rights are restored, tend to be a civic 

influence in our society against violence and against a repetition of 

wars like that in Vietnam. The conditioning of a society to accept war 

and the mass training of young men by the Army in techniques of 

violence tends to encourage the spirit of violence. If the President or 

Congress would amnesty those who rejected both the massive violence 

of the war in Vietnam and the illegal entry by one nation upon the 

land of anoth er, it would not thereby imply that violence and the 

infringement of the rights of others were being honored.

The Social Meaning of Amnesty

Amnesty can change only legal status. It does not change society’s 

social approval or disapproval of what happened. It does not mean 

that the position of those who disobeyed an order or law requiring 

military action in Vietnam has now been vindicated. To some 

Americans the offenders against the draft are heroes; and to others, 

villains. Those who view them as herdes will be less able to view 

amnestied men as martyrs and those who view them as villains may 

take some satisfaction from that fact for they are less likely to be 

symbols of continuing opposition to government if they are amnestied. On the other hand, amnesty does not silence opponents of 

conscription or war: Neither are they silenced now by penalties 

already imposed or abou t to be imposed. For many Americans, 

Eugene Debs in prison during World War I was a greater reminder of 

the injustice of government than if he had been free to speak on the 

outside. Similarly, the imprisonment of “goo d” men taking place 

today is a constant prod to many Americans who generally have not 

had friends or acquaintances in prison.

Americans generally have frowned upon imprisoning men for 

political reasons. Although violation of a conscription law is technically the same as violating any other law, Americans do not assume 

that it involves the violation of other persons or personal property 

implied by assault or theft. Breaking the draft law is a political offense 

in that it challenges a political course o f action which the government 

can implement only by taking away a man’s freedom. Those who have 

resisted conscription and war, at any level, are political offenders and 

constitute the largest category of present and former Federal political
585

prisoners in the United States today. In a sense, the test of how 

democratic any government is depends upon the number of political 

prisoners it puts or keeps behind bars. In the eyes of millions of 

people around the world, the reputation of the U.S. as a democracy 

would be enhanced rather than diminished by amnesty for those who 

have been convicted for draft- and war-related offenses, as well as for 

those in exile or still awaiting trial.

Suggested Questions For Discussion

1) If there is, as some maintain, a growing disrespect for law in our 

society, would not an amnesty further contribute to this breakdown of law and order?

2) Do you believe that each person should, or indeed has the 

responsibility to, follow his “conscience,” even if it means 

violation of the law?

3) Does a person ever have the right or obligation to break the law?

4) What kind of effect would an amnesty have on Vietnam veterans; 

families who have lost a loved one in the war; those who have 

resisted military service at this time; the way which other nations 

view the United States?

5) Does our history as a nation have anything to suggest with respect 

to the appropriateness of an amnesty following the Vietnam War?

6) Is it a sign of governmental strength or weakness to grant an 

amnesty? Why?

7) What is the difference between political and non-political crimes?

31 -6 58 O - 74 - 31
586

Mr. D ellums. Than k yo u, Mr. C hai rman.

I would like to than k the subcommittee for their attentio n and for 

their intere st in amne sty legislation .

Mr. K astenmeier. We appre cia te your sta tem ent. Congressman 

Dellums.

In order to try to determ ine what is rea liza ble in term s of leg islation , 

is it yo ur view th at the country is ready, willin g, and able to accept 

congressional leg isla tion p rovid ing f or general, unc ondition al amnesty 

tod ay ?

Mr. Dellums. I th in k so, Mr. Chai rman.

One of the tragedie s of thi s issue is th at it is discussed within the 

fra me wo rk of the political arena.

The second tra ge dy is th at all of us are seek ing reelection, and th at 

raises the ultim ate tra ge dy which is th at we often do not deal with 

the con ten t of an issue, but deal with the exp edient natur e of a 

question.

T th in k th at the American peop le are prep ared for us as Members of 

Congres s to assume some moral lea dersh ip, some lea dersh ip with 

integr ity and hon esty and conviction. The Am erican people, it seems 

to me, are tir ed of docile lea dersh ip, e xpe dient, frus trat ed leadership. 

T think Members of Congres s who have the courage to say th at 

tho usa nds of young people were also exercis ing some kind o f courage 

when the y stood up, when the major ity of the Am eric an people were 

saying, “Bomb them back to the Stone Age,” to say th at they will not 

be involved in a wa r th at the y considered illegal, imm oral, and insane. T think the Am erican peop le are rea dy for it. because T think 

the American people are rea dy for somebody to begin to assume some 

of the lea der ship th at has been lackin g for the pas t 5 or 6 yea rs in 

this cou ntry.

Mr. K astenmeier. T yie ld to the gentlem en from Illino is.

Mr. R ailsback. I n the intere st of time, I will not ask any question, 

and I want t o th an k you f or coming.

Mr. Dellums. Th an k you very much , Mr. Railsba ck.

Mr. K astenmeier. The gen tlem an from New Jerse v, Mr. San dman.

Mr. Sandman. In the same intere st of bre vity, I only wan t to 

direct my question to one area. In vour statem ent , you ref er to the 

idea of allo win g those worth y to return to society, and at the same 

time, you jus t want to make a general sta mp and allow everyone to 

ret urn. Is that not a little inco nsistent?

Mr. Dellums. I do not th in k so. because I t hink all of th ese youn g 

men are w orthy o f r etu rn to t his society. It seems to me t ha t the g re at ­

est asset a society has is its huma nit y, and its gre ate st investm ent in 

itself, and its futur e, is its young. And it seems to me a society tha t is 

not capable of welcoming back its own young men who stood with 

some courage aro und a very im po rta nt and com plic ated question is 

a society destine d to die. And it seems to me th at all of the young 

people who took some position on this question deserve a righ t to 

return. Eve n when we convic t people o f very serious criminal offenses 

and send them to prisons, we still s ay t hat we will give the m an op po rtunity’ to r eturn to our society. So. I think all of ou r y oung people are 

wo rth y o f re tur n.

Mr. Sandman. Such a position, tho ugh, does it not ju st au tomatically say everybody who did this did it for a good reason? Are we 

not goin g a li ttle fa r when we say th at ?
587

Mr. Dellums. Well, our bill sets up an automatic amnesty provision 

only for strictly-defined dra ft and desertion offenses, but we do set up 

a Commission to handle some cases tha t may not be adequately bandied 

in this automatic approach. For example, when there were acts of 

violence against a person or property where there may have been some 

serious questions about how close these kinds of activities were to the 

question of how they felt about war and their involvement in it— 

this is something tha t the Commission could handle. But I think that 

the more automatic it is, the better i t is. The Commission is set up to 

handle those case-by-case individual situations that are a little more 

difficult to approach.

Mr. Sandman. The other thing tha t you have in your statement, 

which to me seemed rather sweeping, is the fact tha t you would have 

in general a repeal of all discharges to the point tha t you would have a 

nullification of all discharges less than honorable. Do you mean that? 

Is this what you think should be done automatically ?

Mr. Dellums. This particular bill only relates to less-than-honorable 

discharges caused by protest to the Indochina war. But I have gone 

farther than that, and I intend soon to introduce a piece of legislation 

that would remove all discharges, and give people a certificate of service upon completion of service. I think tha t discharges are discriminatory. I think we have overwhelming information to indicate the racism 

and the class prejudice involved in the distribution of discharges. We 

have documented proof that many of the branches of the services use 

the discharge as a punitive mechanism to remove war protestors or 

people who oppose war. or people who were raising questions around 

equal opportunity policy in the military. And the military itself has 

even admitted this. I think that there is no room in our modern society 

for the discrimination of honorable, less than honorable, dishonorable 

discharges. If a person goes to service, they ought to be given a certificate of service. If they committed a crime that is worthy of adjudication in the military, then let the process continue. But it seems to me 

that person should not have to take a less than honorable discharge 

and carry it for 60 or 70 years into the future when many of us, and I 

would suggest to the gentlemen, that even many of us at 18.19,20, and 

21 years of age. were not the responsible, mature selves that we find at 

over 40. And I do not think that young people ought to have to carry 

the burden of those kinds of acts for 50, 60, and 70 years into the 

future.

I think we ought to move on.

Mr. Sandman. One last question. Do you honestly believe the majority of one, that is 50 percent plus one share your opinion in the 

United States?

Mr. Dellums. You said 50 percent plus one of the American people?

Mr. Sandman. That is the smallest majority I can think of. Do you 

believe that they share your opinion ?

Mr. Dellums. I have no way of knowing, but I would say this to 

the gentleman, that I do not think t hat politics ought to be based on 

where 51 percent of the community is. I think that that is an expedient 

approach to what representation is. We are representatives, 435 of us, 

elected by approximately 460.000 people who pay us on a full time 

basis, and give us staff, and provisions to function on a full time basis. 

The American people do have access to the same information you and 

I have. The decision ought to be whether you and I believe that am-
588

nesty should take place, and if you and I believe tha t it should, then 

our moral conviction and our integrity ought to allow us to advocate 

it and vote for it. My belief has always been, even with the Vietnam 

war, that if 95 percent of my district felt that we should bomb the 

Vietnamese back into the Stone Age, and I felt that that war was 

illegal, immoral, and insane, I would vote against the war, and take 

my chances on reelection. I think that is the only way that politics 

in this country are going to make any sense.

Mr. K astenmeier. We thank our colleague from California for his 

testimony this morning.

Mr. Dellums, Thank you.

Mr. Kastenmeier. I should like to say tha t the gentleman from 

Maryland, Air. Hogan, has a statement for the record.

The gentleman from California, Mr. Corman; the gentleman from 

Pennsylvania, Mr. Murtha; as does the gentleman from Alabama, Mr. 

Bevill, also have submitted statements for the record.

[The statements referred to follow :]

Statement op the Honorable Lawrence J. Hogan, Member of Congress

My name is Lawrence J. Hogan and I represen t the fifth Congressional distric t 

in the Sta te of Maryland. I wish to commend the chairman of this disting uished 

Subcommittee, Chair man Robert W. Kastenmeier, for calling these hearings to 

delibera te on the most emotional issue left in the wake of the Vietnam w ar; 

wha t to do about the American dra ft dodgers an d deserters.

The end of the war has prompte d advocat es of amnesty to again call for the 

free ret urn of those who avoided their mili tary obligation to the United States.

There are those who argue th at these young men should be gran ted unconditional amnesty. Others argu e th at they should be allowed to retu rn, but only if 

they commit themselves to a i»eriod of public service.

T am here today to express th at no pardon, reprieve , or amnesty be enacted 

by the Congress or exercised by the Preside nt with respect to persons who are 

in violation of the Military Selective Service Act because of the ir refu sal to 

registe r for the draft and/o r the ir refus al to be inducted. This should hold true 

as well for those members of the Armed Forces who fled to a foreign country to 

avoid furth er mili tary service in violation of the Uniform Code of Military 

.Justice.

Certainly the righ t to choose is an intri nsic pa rt of our American heritag e. 

However, those who have chosen to leave the country rathe r tha n serve may have 

been with in the ir righ ts to make th at decision, but now they must live witli the 

consequences.

Wha tever the ir reasons, they are dr af t dodgers and dese rters who refused to 

answ er the ir country’s call. While they were sitt ing safely in Canad a or Sweden, 

over a million men were risking the ir lives in Vietnam and over 55,000 men were 

dying on the battlefield—for their country.

None of these men who left the country to avoid the ir mil itary obligation 

will be marked by the scars of battle for the rest of their lives. None of the ir 

wives is a widow.

What those who h ave fled the country now seek is not amnesty or forgiveness. 

They seek vindication, approval by the United States Government, th at they 

were rig ht and the U.S. wrong. To grant wha t these few thousand deser ters 

demand would be to dishonor those millions who served their country with 

honor.

Exon erati on of dr aft dodgers and deserte rs would set a precedent th at might 

convince young men. in fut ure emergencies, th at they risk little or nothing in 

ducking their co untry’s call to service. The impact would be dra ma tic and adverse 

upon the men in the service who eith er volunteered or answered the call of 

duty. Furt herm ore, our coun try would be divided, not unite d by such a policy.

Amnesty would also condone law breaking. The indivi dual does not have the 

right to choose the laws he will obey and the laws he will disobey.

According to the Gallup Poll findings. Americans are moving towar d a har der 

line of forgiven ess for those dr af t evade rs and deserters . In June , 1972, sixty
589

percent of those questioned were opposed to unconditional amnesty. A following 

poll taken in Feb raury of 1973, showed 67 percent opposed. Only 29 percent 

favored unconditional amnesty.

It would be unwise to grant amnesty because it could establish a precedent 

inviting other young men to “cop out” in the futu re. It would be unjus t because 

the returning men would in no way have offered equivalent service or sacrifice.

It would also he grossly inequitable, when return ing Vietnam veteran s are 

having such difficulty finding jobs, to allow those who shirked their duty to compete in the job market with men who performed t heir duty.

If draft dodgers wish to return to enjoy the freedoms and benefits of the 

country which they were unwilling to serve, then they should return as they left, 

expecting prosecution. The maximum federal penalty for desertion and draft 

evasion being five years in prison.

Mr. Chairman, as a sponsor of one of the bills before your Subcommittee, 

H. Con. Res. 144, I am deeply concerned that the Congress act according to the 

principles of law and insist th at anyone who has evaded the draft or deserted, 

pay his full price for breaking the law. The price is a crim inal penalty for disobeying the laws of the United States.

I apprecia te having the opportunity to come before this distinguished Subcommittee today and I urge you to give due consideration to those principles and 

values I have espoused and which are intrinsic to our system of government.

Statement of Congressman J ames C. Corman, Democrat of California

Mr. Chairman, I would like to preface my stateme nt by commending your 

subcommittee for holding hearings on the very imp ortant issue of amnesty. It 

is my sincere hope that these hearings will lead to a workable bill which will 

resolve this m atter once and for all.

On Jan uary 27, 1973. our government signed a peace treaty with the government of North Vietnam ending almost a decade of direct military involvement in 

Southeast Asia. The wisdom, m orality and legality of that involvement is somethin g historians will debate for years to come. Suffice it to say, it was a painful 

period of reexamination within the United States by scholars, religious leaders, 

policy-makers and others of our historical role of world policeman and our 

attitu de toward and perception of world Communism.

Now that American militar y action in Vietnam has ended, it is time to face 

the problem of what to do with the tens of thousands of young people who manifested the ir opposition to the war by violating U.S. law. This includes those who 

failed or refused to register for the draft and to be inducted into the service, 

those who once in the military were court-martialed, received less-than-honorable 

discharges for absence offenses or d eserted, and civilians convicted o f w ar related 

protest acts.

The issue of amnesty is not new to the American people. It has been a subject 

of deep concern following each war since the beginning of the Republic. Indeed, 

the first amnesty was granted by Presiden t Washington following the Whiskey 

Rebellion in 1795. All told, amnesty has been invoked thirty times by the President and has been the subject of a t least four acts of Congress.

Sound policy dictates th at we keep thre e things in mind as we approach the 

amnesty question.

First, we must base our deliberatio ns in reason—not emotion. The stak es are 

too high to allow irra tionalitie s to inte rfere with and distort the decisionmaking 

process. At issue are the lives of perhaps a million young Americans and their 

families. From a national standpoint, this represen ts a sub stan tial resource pool 

which we can ill afford to lose.

Second, we must not allow the issue to be used by supporters of the wa r to 

vindicate the ir posiiton. These are two separate and distinc t issues and any 

atte mpt to tie them to geth er will only confuse matters. Such ard ent w ar advocates 

as former Defense Secretary Melvin Laird and form er Army Secretary Robert 

Froehlke have already expressed the ir support for a conditional amnesty.

Third, we must remember that we cannot bring back our dead or make whole 

our injured. It would be a grea t disservice to those who served bravely if we 

used the ir deaths and injuries as a justification for turnin g our backs on those 

who chose not to serve for moral reasons. Our policy must look to the futu re, 

not to the past.
590

Application of these tes ts compel the conculsion th at some form of amnesty 

is war ranted. Speculative argumen ts raised by amnesty opponents, such as its 

effect on our f utu re ability to wage war, are outweigh ed by trad itio nal American 

notions of forgiveness and compassion and the urgent need to heal divisive 

wounds and put the country back on the road toward inte rna l peace and 

tran quility.

Accordingly, I propose th at Congress c reate a Natio nal Commission on Amnesty. 

The duties of the Commission would be twofold.

Fir st, it would collect data rela ting to persons who migh t be affected by an 

amnesty gran t. As mentioned above, this includes (1 ) persons who failed or 

refuse d to regi ster for, or he inducted into, the service; (2 ) persons who were 

court-martiale d, received less-than -honorable disch arges for absence offenses or 

who deser ted: and (3 ) persons who were arrest ed and/or convicted of a crime 

protestin g the war. Sta tist ics a re needed on the number of people in each category 

and subcatego ry, where they are now and what motiv ated the ir actions.

Info rmation of this natur e is woefully lacking. One pro-amnesty group, the 

Safe Return Amnesty Committee, contends th at about a million people could be 

affected by an amnesty decla ration. Pentagon estimates are a fraction of this 

number. In addition, the Penta gon argues th at only 5% of Vietnam era desertions 

were motiva ted by anti-w ar feelings. This percentage is hotly contested by amnesty groups. As is tru e of so many othe r issues, ratio nal, intelli gent decisionmaking must be based on acc ura te and comprehensive data .

Second, the Commission would make legislative recommendations to Congress 

and the Executive. Because this Admi nistration has unequivocally expressed its 

opposition to any form of a mnesty, I submit that the Commission issu e its repo rt 

by Jan ua ry 1, 1976. This would enable a new Congress and possibly a new Admin istratio n to look freshl y at th e question.

In short, amnesty is an issue whose time has come. Our mili tary involvement 

in Vietnam ended over a yea r ago. The POW’s are safely home and are living 

normal, productive lives. Only histo ry can judge our action s of the las t decade. 

Let us now bring all our men home so th at we may tru ly have a peace with 

honor.

Statement of Hon. John P. Murtha, From the State of Pennsylvania

Mr. Chairman, I want to thank the committee for allowin g me to test ify on 

the question of general amnes ty which is so imp orta nt to thi s nation.

I served in Vietnam in 1966 -1967 with the Fi rst Marines, south of Da I*Jang. 

I witnessed many acts of bravery. I saw young men who compare with the finest 

men in the histo ry of this country doing the ir duty to the best of the ir ability.

Bu t I also witnessed fru stration. I witnessed a tremendous feeling of insecurity 

and discouragement because of actions at home and because of the divisiveness 

of this war.

One trag ic example vividly illu strate s this fru stration . A young Marine company commander in 1967 had finished a tour in the Fi rst Marines south of Da 

Nang. He was scheduled for rota tion —but he volunteered to lead his company 

on one la st operation.

During the operation he was wounded but carr ied on. While talk ing on the 

radio, his battalio n commander heard a loud explosion and minutes lat er the 

capt ain reported weakly he'd have to give up his company because he’d jus t 

lost both his legs.

The next day I visited this young Marine who was awar ded the Navy Cross 

for heroism. He told me he was going back and tell the people wha t a gre at job 

the young men in h is company had been doing.

Obviously, the critics, who he never mentioned, had hu rt him deeply.

The reason th at I tell his story is because I lielieve it ’s necessary for the 

American people to und erstand how difficult th is war was on t he young men who 

fought. The re’s no question that many of them didn’t believe the war was right.

They fought in mud up to the ir knees and in water up to the ir waist—they 

sweat and bled and died, and when they retu rned some were embarrassed to 

wear their uniform s, some were ashamed to say they had fought in the jungle s 

and swamps o f S outheast Asia.

Bu t they served the ir country and the men who fought should he prais ed and 

lauded.
591

The re’s no question they feared dying. Many of them could have stayed home 

or gone to Canada. But they lielieved as I did and still do that in this great 

country we must tru st our government to estab lish the righ t foreign policy for 

this country, and we’re to follow t ha t foreign policy, perhaps give ou r lives for it.

Mr. Chairma n, some bills before thi s committee would gran t a general amnesty, 

some would gra nt amnes ty on the condition of honorable service to the country, 

and othe rs oppose amnesty altogether.

Because the att itu de expressed by Congress on this subje ct will direc tly influence the fut ure of this country, and because it is an issue persona lly imp orta nt 

to thou sand s of the men and women I represent, I want to express my views 

l>efore this committee.

Considering th at Vietnam was an extremely unpo pular war, America has 

every reason to be proud of its young people. During the Vietnam conflict 1,800,000 

young Americans were invo luntarily inducted into the armed services. Millions 

more volunteered. More tha n 05 perce nt of these millions served the country 

honorably and well. 2,500,000 young Americans were told the ir country needed 

them in Vietnam, and they went. There were 46,226 of them who di ed ; 303,654 

who were wounded ; 750 of them who were ca pt ur ed ; and 1,088 of them who are 

still missing in action. If there is no other good th at comes out of Vietnam, ther e 

is at leas t the cer tain knowledge th at the overwhelming majority of young men 

in this country are a s loyal as any who w ent before them in any previous war.

When we t alk about dr af t evaders and deserters , therefore, we wan t to keep 

in mind th at we are talk ing about a compa ratively small number. We also want 

to remember that it has happen ed before. In all previous wars, as well a s durin g 

Vietnam, there have been some who would not live up to the obligations of 

citizensh ip.

Ther e have actu ally been about 9,000 tria ls for dr af t evasion rela ting to the 

Vietnam conflict. Of this number, 1,186 were acqui tted, and 7,932 were convicted. 

Only 134 are now in prison. The sentences have an avera ge range of 18 to 37 

months. There remain about. 4,400 fugitiv e wa rra nts issued on men known to 

have evaded the dra ft. According to the Depa rtme nt of Defense, no more than 

17,000 men, including those who failed to register and rema in undetected, are 

involved in unsettled cases of d ra ft evasion.

While no doubt some men refused to serve in Vietnam because of a genuine, 

conscientious objection to our involvement there, many more men fled to Canada 

or Europe simply because they were irresponsible and unwilling to take any 

risks for the ir country. Most of the men with genuin e conscientious objections 

stood the ir ground here in the ir own c ountry and, in many cases, went to jai l to 

show they had the strength of the ir convictions. In my mind, those who fled 

simply took the easy way out, leaving others—other s who were bet ter citizens — 

to tak e the ir places in uniform.

It is imp ortant to point out th at o ur country has recognized from the beginning 

the right of an indivi dual to conscientious objection. While for a long time such 

objections were considered valid only on religiou s grounds, more recently the 

basis for objection has been expande d to include othe r ethic al considerations. 

Even after a man has put on liis uniform, he can still make application for 

sta tus as a conscientious objector. During 1968, for example, when the conflict in 

Vietnam was at its peak, 1,387 servicemen applied for a sta tus as conscientious 

objectors. Of these applic ants, 724—or more tha n 52 perce nt—received approval. 

In 1971, 4,381 applied. Of these, 2,765—or 63 percent—received approval. Clearly, 

then, the men facing the dr af t had altern ativ es available to them th at were 

with in the law even af ter they put on the ir uniforms.

For deserters , the problem is essentially the same. It boils down to a shirking 

of duty to the country. Of the 28,661 dese rters at large, stud ies show that less 

than thre e i>ercent would honestly claim conscie ntious objection as the ir reason 

for desertion. Less tha n four iiercent would claim they deserted because of an 

objection to war. Nearly 20 i>ercent—men who enlisted from other countries to 

gain U.S. c itizens hip—would say they got cold f eet and were n ot sure they wanted 

American citize nship enough to fight for it. Another 10 percent are simply men 

who escai>ed from confinement for other crimes. The rem aind er would cite as 

their reasons family problems at home, in abil ity to take the stres ses of military 

life, and o ther such things.

Americans are not a cruel or vindictive people. If the dr aft evade rs and 

des erte rs tur n themselves in for tria l, they will find no eye-for-an-eye vengence 

being inflicted upon them. They will find in stead a system of jus tice th at emphasizes, whenever it can, clemency.
592

For me, and I believe for the people I represent, a gra nt of general amnesty 

is out. of the question. If we have not paid our men in uniform enough, or not 

provided our veterans with enough post-w ar compensation, we have at least 

alwa ys honored them for the ir service to our country. I will not dishon or them— 

and the ir widows and families by voting for or supp ortin g general amnesty.

And Mr. Chairm an, I would also ask th at these article s which appeared in 

the Johns town Tribune Democrat recently pertain ing to the question of amnesty be included in my remarks.

Danger in Amnesty

(By William S. Wh ite)

The pro-amne sty lobby is having a field day in hur ling arou nd great blobs of 

mawkish sentimentality . Dr aft dodging and even desertion in the face of the 

enemy ough t to be forgiven and in some cases even r ewarded.

The deserte rs and evader s are availing themselves, from the ir refuge in 

Canada, of the American TV tube to appeal to the qua litie s of compassion and 

forgivingness.

But not all of them are stopping there. Some are demanding th at the ir admitte d violatio ns of criminal law be redefined as acts o f higher law and a highe r 

morality. They declare the ir willingness to come home only if the United States 

apologizes to them.

For them, not even proposals to let them work off the ir refusal to accept the 

common duty and the common dange rs of the ir generation by various forms of 

vague do-goodism ar e enough.

It is hard ly necessary to point to the obvious f act th at pseudo-service in some 

social worker’s office cannot be equate d with service on any battlefield.

It is therefor e difficult to determ ine which side of t his nonsense is more ins ult ­

ing to the young Americans who did the fighting and dying. Which group is more 

inso lent?

Is it the politicians who offer this so-called method of aton eme nt? Or is it 

the arr oga nt group of those who wish almost to be c anozide for having let some 

othe r youngster c arry the rifle through the sinks of V ietnam?

At any rate, amnesty has become the fashionable thin g in Congress—whose 

con stitu tional righ t to gra nt it is in any case in grave doubt—for reasons that 

could not be more glibly appealing or more deeply wrong.

Politicia ns are moved by a series of tota l irrelev aneies . Was the Vietnam War 

really rig ht anyh ow? Anyhow, do not the young have special immunities from 

the law ?

If a personal decision th at a given war is wrong is sufficient to perm it a single 

indiv idual to declare it null and void, what happens to repr esen tative government and to th e Co nstitution itse lf?

If such a precedent is to be set for the young then what is to stop them from 

reach ing an equally personal decision th at paying one’s taxes is wrong or that 

obeying any othe r act of Congress with which they personally disagree is not 

for them ?

But the re is a far more rea listi c point. And this is i t :

What happens to the secur ity of this country and to the arme d services themselves if every young man is to be allowed to serve or not serve as he may 

choose, pleadin g a special sens itivit y and a special mo rali ty?

How can we depend on even a volu ntary Army if Pvt.* Jones, Smith or Brown 

is to be allowed by precedents set now to announ ce th at though he entere d the 

Army on his own he has concluded th at a par tic ula r war is offensive to his moral 

sense?

The anti- amn esty people are not motivated by revenge. They see instead fa ir ­

ness in sacrifice, the secur ity of a natio n and equal—not unequal—justi ce under 

the law.

Don’t Grant Amn esty

Pres iden t Nixon should not gra nt amnesty to the draft dodgers and the 

des erte rs of the Vietnam War.

Neither should the Congress atte mp t to wrest from the executive branch the 

power to gra nt amnesty, though th at is the tack cur ren tly pursu ed by some 

lawmakers.
593

Cert ain elements are, furthermo re, pers uading the Congress to legislatively be 

the sala vati on of those who decided not to live up to one of their obligations 

as Americans when the vast majority of othe r young men did serve in the 

mili tary d urin g th e Vietnam War.

The New York Times is among those persu asive elements, as is proved by the 

following words from a Times e di to ria l:

"Ever since President Nixon said catego rically more tha n a yea r ago th at 

‘we cannot provide forgiven ess’ for draft resi ster s and self-exiled opponents 

of the war in Vietnam, it has been evident that any hope of amnesty rest s with 

Congress. Legisla tion to create an amnesty board to rule on indiv idual cases is 

now under consid eration in the House.”

The Times goes on to say th at past example s of forgiven ess have n ot “crippled 

thi s country ’s capacity to defend itse lf in subsequ ent conflicts.” Mention is also 

made of the unpo pula rity of the Vietnam War, and the editoria l concludes with 

tlie phrase “we should delay no longer in sanctioning a peace with cha rity .”

Some of those who have been advocating amnes ty have said th at the dr af t 

dodgers could perform some so rt of public service for a numbe r of years in order 

to work off the ir military- duty obligation. Th at justly may seem like an easy 

way out for the draft dodgers, esi)ecially in the eyes of those who did not dodge 

the dra ft.

As for the deserters, those who illegal ly left the mil itar y service af te r being 

sworn in, the Pentag on lias argued that amnesty "would have a seriou s de trimental impact on the morale and disciplin e of our armed forces.” It would, for 

can anyone deny that the dese rters broke the law ? And if lawbrea kers are to go 

scot-free, it might be reasoned, why s hould anyone trod civil or mil itary straiglitand-narrow pat hs?

Amnesty is o ut of the question.

Each dr af t dodger and each deserte r wan ting to have his sta tus resolved should 

have his case heard—on an indiv idual basis and before the courts. A blank et 

amnesty should not be permitted.

If after an indivi dual has presented his case it is judged th at he be perm itted 

to iierform some a lterna tive service to his country th at would be acceptable. But 

lie must f irst be tried.

Those who are calling for amnesty have been asking the nation to forgive 

tlie transgre ssions of the dodgers and the deserters. The headline on the aforequoted Times edito rial was “We Can Forgive.” We, too, can forgive—ju st as the 

err ors of the pas t ought to be forgiven for those who have broken the law, have 

been sentenced and have paid the ir debt to soc iety: aft er, not before.

Sta tem ent of H on. T om Bevill of Alabama

Mr. Chairman, I want to tha nk you for this opp ortunity to expre ss my views 

on proposals before your committee w hich would gra nt amnesty to d ra ft evade rs 

and deserters .

I am opposed to gra ntin g amnesty, general or particular . In my opinion, gra nting amnesty to dr af t dodgers and des erters would be a gross inju stic e to those 

who made such gre at sacrifices to their coun try. Such a move would undermine 

our system of just ice because it would reward those who violated our laws and 

shirke d the ir duty.

To gra nt amnes ty to dr af t evaders and deserte rs would invi+e new violations 

of mil itar y and civil law. It would make it difficult for the military to mainta in 

discipline in possible fut ure conflicts or wars. It would possibly dis rup t the effectiveness of our selectiv e servic e system.

Mr. Chairman,, those men who delibe rately disobeyed the law and decided 

to flee the coun try or resist the dr aft knew wh at they were doing. Now, they 

mus t fac t the consequences of the ir actions. They deserve th eir day in court, 

ju st as any other citizen who breaks the law. We must not make exceptions for 

these i>eople.

The majori ty of amnesties in American histo ry occurred duri ng and af ter the 

Civil War. They were deemed necessary as pa rt of the general reconciliatio n 

effort between North and South. Because the system of induction was fa r di fferent then , the re is no record of amnesty for dr af t dodgers, and the amnesty 

gran ted to those who served in the Confederacy is in no way para llel to amnesty 

for dr af t dodgers today.
594

America is today, Mr. Chairman, hard pressed to coi>e with crime and violence. 

Granting amnesty would only furth er disrupt our nation and create additional 

hate and distr us t by implying that laws can be safely broken by some citizens.

I respectfully urge the committee to vote down the amnesty bills.

Thank you.

Remarks of the Honorable J ohn J. Flynt, J r., a Representative in Congress

From the State of Georgia

Mr. Flynt. Mr. Chairman, thank you for the opportunity to appear before your 

Subcommittee during its consideratio n of amnesty legislation.

Those clamoring for amnesty for dese rters and draft dodgers have now been 

joined by a former Secretary of the Army, and thi s has encouraged the proamnesty element to renewal effort. The f act of desertion and draft evasion has not 

changed and will not change. The righ t and wrong of desertion and draft evasion 

lias not changed and will not change. The necessity for thi s Country to remain 

a strong world power has not changed and will not change during our lifetime, 

the lifetim e of our children and of our children’s children.

It ma tters not that a n individual may have felt th at our massive military involvement in Southeast Asia was a te rrib le mistake, as I feel and have so stated 

on th e Floor of the House more than once. The ma tter is more basic to our continua nce a s a Nation th an individual doubts and misgivings aliout the advisability 

of the national course of action. If we make it a national policy to forgive these 

dese rters and draft dodgers and enfold them in the national bosom as strayed 

lambs who have returned to the fold, we can never again call our citizenry to 

arms with any expectation of creating or main taining an armed force for the 

preservation of life, liberty, and the pursuit of happiness nor to protect and 

enforce the essential inte rests of o ur Country when diplomacy has failed.

If we ar e to survive as a nation, citizens of this Country must meet the responsibilities of citizenship and respect and respond to its laws, with the ever present 

reality of certain punishm ent fo r failure to do so.

To establish a natio nal i>olicy to perm it and bless a defiant refusal to obey 

any law* with which an individual disagrees is to guarantee the early demise of 

the Nation and the certain establish ment of anarchy, chaos, and the tota l loss 

of individual and collective security.

Mr. K astenmeier. Th e Ch air would like to call on the gen tlew oman 

from New York, th e H onora ble B ella Abzug, who is cert ain ly a le ade r 

amo ng ou r colleagues in terms of the question of amnesty.

We welcome you to th e committee. Ms. A bzug, and you may proceed.

TESTIMONY OF HON. BELL A ABZUG, A RE PR ESEN TA TIV E IN 

CONGRESS FROM TH E STATE OF NE W YORK

Ms. Abzug. T ha nk you, Mr. Chairma n. It is my ple asu re to appear 

before you this mornin g. I wish to com plim ent th e chair ma n of the 

com mittee fo r ho ldi ng these hea rings. I think it is reflective of the 

very earnes t concern about amn esty which is now taki ng place in our 

cou ntry.

I am here to discuss amn esty legisla tion , specifically m y own bill. 

H.R. 236 and H.R . 5191, cosponso red b y R epr ese nta tives Jo hn Con yers 

an d Ba rre n Mit che ll, as well as H.R. 3100, sp onsored by Re pre sen tative Heliums, as the y are all sim ila r bills.

The war in Vie tnam is supposedly over. Our p risoners of wa r have 

come home. Bu t some 600,000 young Am erican s are still prisoners of 

the war system. Fo r t he ir refu sal to tak e par t in a w ar th at th e pub lic 

now rep udiates, the y are pro hib ite d from co ntrib uting th ei r tal en ts 

to ou r society.

Ov er 52,000 young men resisted the dra ft ; some 7,000 were classified as felo ns and some 3.900 await prosecutio n. An othe r 32,000 resisted af te r ind uct ion , went AW OL , and are classified as deserters.
595

Some .30,000 to 50,000 left the country. An astonishing 450,000 Vietnam war veterans received less than honorable discharges for acts 

that would not be crimes in the civilian world.

These citizens are as much the responsibility of Congress as were 

the POW ’s. They, too, are victims of the misguided policy th at led 

us into Vietnam. They and the ir families have suffered and the Nation 

has been the loser. The time has come for reconciliation; the time has 

come for amnesty.

Since our earliest history, this Government has granted amnesty 

after wars and rebellions at home and abroad. From the Shays and 

Whiskey Rebellions, through the W ar of 18T2, the Civil War, and the 

First and Second World Ware, the cessation of hostilities has generally 

been followed by one or another form of amnesty.

A brief review of these amnesties will illustrate their variety and 

the numerous instances of separate Presidential or congressional 

action. During the Civil War period, when Presidents Lincoln and 

Andrew Johnson were more inclined to forgive the Confederates than 

were the radical Republican Congresses, congressional action was 

piecemeal. In 1862, Congress authorized the President to pardon and 

amnesty those participa ting in the rebellion; in 1872, Congress reenfranchised many thousands of former rebels; in 1884, Congress 

removed disabilities of former rebels to serve on juries or hold civil 

office; in 1896, Congress lifted restrictions on former rebels to allow 

their appointment to military’ commissions; in 1898, Congress passed 

a Universal Amnesty Act removing all disabilities against all former 

rebels.

Since that time, executive amnesties or pardons have predominated. 

President Wilson, in 1917, pardoned some political opponents of 

World War I. President Coolidge, in 1924, remitted citizenship and 

civil rights to men who had deserted the Armed Forces between the 

end of World War I hostilities and the formal termination of war 

in 1921. He called this an amnesty. In 19.3.3, President Franklin 

Roosevelt granted full pardon to all violators of World Wa r I dra ft 

laws and the 1917 Espionage Act. In 1946, President Truman appointed a President’s Amnesty Board, headed by Supreme Court 

Justice Roberts which, acting in the nature of a parole board, considered Selective Service violators on a case-by-case basis. This Board 

dissolved itself in December 1947. In December 1952, President Tr uman remitted citizenship and civil rights to all persons convicted of 

military desertion between the end of World W ar I I and .Tune 25,1950. 

No further amnesties or general pardons have since been granted.

Since this history of congressional as well as executive action, the 

Nixon administration now suggests, in the testimony of the Justice 

Department before this committee, tha t Congress may lack the constitutional authority to provide amnesty. Alleging that the President 

has exclusive power to grant pardons o r amnesty to those who have 

violated Federal laws, it argues tha t Congress cannot infringe on 

tha t authority either by interference with the exercise of his power 

or by gran ting amnesties which the President has decided not to grant. 

This is sheer nonsense.

It is quite clear, both from historical precedent and from a reading 

of the Constitution, that the authority to provide amnesty is not an 

exclusive one, but one tha t may be exercised by the President or the 

Congress. No one can deny that the President, pursuant to article II ,
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section 2 of the Co nstituti on, has the au thor ity to g ra nt pa rdo ns for 

offenses a gains t the U nited Sta tes. Some legal scholars hav e expressed 

dou bts as to wh eth er th is gr an t of pow er is broad enough to include 

the gr an t of comp lete amn esty , inc lud ing res tor ati on of citiz enship. 

The Pr esiden t does hav e power to gr an t some typ es of amnestie s for 

violation s of Federal laws. Th e Sup rem e Co urt lon g ago held, how ­

ever, th at this pow er is not exclusive and does not pre clu de the Co ngress from actin g in pursuanc e of its powers. Ar tic le I, section 8, 

clauses 11,12, 13. and 14 of th e C onstitut ion g ra nt Congress the powe r 

to declare war, to raise and support arm ies an d navies, and to make 

rules fo r the Government and reg ula tion of lan d and nav al forc es; 

clause 18 pro vides au thor ity to make all law s necessary and prop er 

fo r ca rrying out thes e powers and other pow ers vested by the Consti tutio n. These are b road gr an ts of au thor ity and have been bro adly 

interpreted by the courts. Can it rea lly be arg ued th at the pow er to 

wage wa r and to prepare fo r it does not includ e th e fu rthe r power 

to deal with the problem s o f adjus tm ent af te r hostilities have ceased? 

Can it be argued th at Congress has the pow er to enact con scription 

laws a nd to se t pena ltie s f or violation of such laws, that i t can provide 

penal ties fo r desertion, b ut th at it cannot revoke those pen alties? The 

pow er of Congress to define and pro vide punis hm ent fo r crim es and 

offenses when nece ssary and prop er has been unive rsa lly conceded.

Amnesty, t heref ore, quite c lea rly can bo g ranted eith er by the P re sident or the Congress. Tt may be that, as T think was argued in the 

Justi ce D epartme nt brief , once th e Presi dent has g ran ted an amnesty, 

the Congress cannot lim it its effect. At leas t one case. Un ited Sta tes

v. Kl ein , has so held. Bu t th at involved a congressional attem pt to 

nu llify the effect of Execu tive pro clamations, pardo ns, or amnesties. 

Ch ief Justice Chase there stated th at “the leg islatu re cannot change 

the effect of such a pardo n any more tha n the Execu tive can chang e a 

law .” This, howe ver, is not what we are attempting to do here. Quite 

the co ntr ary . There ha s been no Execu tive ac tion in th is area . Congress 

is now attempting to fill th at void by exercis ing its leg itim ate legislativ e func tions, and it should do so promp tly.

Th is committee has un de r con sideration several typ es of amnesty 

bills. Ou r legisla tion , TT.B. 236, H .B. 5195, and H .B. 3100. varies from 

the oth ers in th at it would pro vid e unc ond itional general amn esty to 

war resiste rs and dese rters. T cannot arg ue too str on gly again st the 

imp osition of an y requ irem ents—alte rnative service, punishm ent , or 

a showin g of rep entance—as a co ndition fo r amn esty. Th e imposition 

of such conditions can be justified on ly on the theory th at th ese young 

men have enjoyed some u nf ai r personal advanta ge vis-a-vis those who 

served in the Vie tnam war and th at the y must now serve th ei r time. 

Bu t these men have alr ead y paid a hug e price fo r th ei r exercise of 

conscience. Hav ing alr ead y suffered the ha rdsh ips of exile, un de rground existence, imprison ment, or life as an ex-convict, the y should 

not be penalized fu rthe r for their refusal or inability to sup port an 

illeg al and uncon stitution al wa r and wha t many now view as the most 

imm oral w ar in our history .

I want to sha re wi th t his committee some very mo vin g testimony T 

he ard du rin g 2 dav s of ad hoc hearings which I and othe r Members 

of Congress held last sp rin g and fall . T remember, specifically, the 

testim ony of a young wom an, th e wife of a d ra ft resister, who described
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th eir plight now t ha t he r h usband was out of jai l. She to ld us th at because of her husband’s crim ina l reco rd, he could no t get a job in his 

chosen care er, teaching, an d that the y and th ei r small c hil d were forced 

to live on welfare while she trie d to find a job to su pp ort them. Has 

th is fam ily paid a severe enou gh p rice ?

I also recall t he testim ony o f a m iddle-a ged woman fro m San F ra n ­

cisco whose son was a deser ter from the Ar my , livi ng in Canad a. She 

relate d how her son enlised in the A rm y to please his f athe r, who was 

a car eer noncommissioned soldier. A ft er his enlistme nt, the young 

man h ad come to the moral conc lusion t hat he could not serv e in Vietnam. Ra ther t ha n live un dergr ound, he went to Canad a. She h ad no t 

seen her son in a num ber o f years. Even when he r husba nd w as cr it icall y ill, he r son could not ris k re tu rn ing to the Un ite d Sta tes. Her 

son was no t even able to att end his fa th er ’s funeral . Ha s th is fam ily 

pa id a severe eno ugh price ?

Faced with the huma n bein gs to whom this law’ would apply , I believe th at even form er Secre tar y of the Ar my Froehlk e, form er Secretary of Defense La ird , and othe r advocates of conditio nal amnesty 

would see the need to eli minat e punitive condition s.

Eve n Mr. Froehlk e suggests, in his testim ony before th is committee, 

th at convicted dr af t evaders who have served a prison ter m should 

not be req uired to perfo rm an ad dit ion al service in or de r to qu ali fy 

for amn esty. “T he ir service in prison should be conside red service to 

thi s c ou ntr y,” he sta ted in his testimony befo re thi s subco mmittee. B ut 

if a prison ter m be considered “se rvice” for one’s c ountry, why not a 

fugit ive ’s ex istence o r a period o f exile ? Is he re ally ta lk in g of service 

or does he m ean punishm ent ? I submit th at in ju st the same "way, those 

w’ho face d self-impose d exile, those w’ho live d pre cariously “u nd ergrou nd ,” those w’ho can not find w’ork because of questionable discharg es from militar y service, have suffered enough. So hav e th ei r 

families.

Th ey have p aid th e price fo r follow ing the m ora l im pe rativ e; T hou 

sh alt not kill. They were amo ng the firs t to challeng e t he m orality o f 

ou r acts in Vie tnam. They mad e us th in k more deeply abo ut wh at we 

were doing there. The cou rage req uir ed bv th is loneiy stance is ha rd 

to ima gine until one has talked, and he ard from, as I have, hundred s 

of such men and thei r families.

Tha t is wh y my bill pro vides fo r unconditio nal amn esty . I t w ould 

also ap ply to a ll classes of essentially non vio lent w ar resisters , inc lud ­

ing not only dra ft evaders and deser ters but an tiw ar demo nstrators 

as well. Am nesty would be gr an ted autom atical ly in most instance s, 

bu t an Am nesty Commission would be established with au thor ity to 

gr an t amnesty to vio lators of othe r Fe deral , Sta te, or local laws, if 

the com mission finds t hat such violations were su bs tantially m otivat ed 

by opposition to the war and did no t result in significant prop erty 

dam age or substan tial person al injury.

The a mn esty gran ted un de r my proposed legisla tion wou ld be co mplete and wou ld con trav ene every legal consequence suffered as a re ­

su lt of wa r resistance. I t w ould res tore all civil, political, c itiz enship, 

and prop erty r igh ts. It w’ould imm uniz e pers ons from cri mina l prosecution, release those imp riso ned and exp ung e all cri mina l records. I t 

would also require t he A rmed Force s to g ra nt an h onora ble disc harge 

in place o f ot he r th an honorable discharges.
598

Other amnesty pro posals have suggested autom atic amnesty for 

dra ft vio lato rs bu t more caref ul con sidera tion or no con sidera tion at 

all fo r deserters. The theory , supposedly , is t hat th e motives of d ra ft 

evaders are more easily iden tifiable as con scientious, while th e motives 

of des erte rs are m ore diverse or t end to be selfish. Th is the ory is n ot 

support ed by the facts. I question its relev ance, since it is impossible 

to devise a fa ir ad ministrativ e mechanism to iden tify motives. Th e 

records of dra ft board s an d mili tary lo ar ds who hav e ruled on the 

sin cerity of conscientious objectors show t h at such proceedings are by 

na ture ar bi trar y and capricious, discrim ina tin g fla gran tly ag ain st 

those who are less well educated and less artic ulate in stat in g th ei r 

belie fs. In fac t, many wa r resisters, both convicts and fug itiv es, are 

them selves conscientious objectors who were unabl e to convince th ei r 

dra ft board s bu t unwi lling to comprom ise th eir belie fs. Tn Seege r v. 

Un ite d S tates -380 U.S. 163 (1965), the Suprem e C ou rt ack nowledged:

One deals with t he beliefs of different individuals who will articu late them in 

a multitude of ways. * * * Ixxal hoard and courts ♦ * ♦ are not free to rejec t 

beliefs because they consider them “incomprehensible.”

W ha t recourse would the y have if the y failed a second time to 

esta blis h th ei r sincerity in an ar bi trar y ad ministrativ e proceeding? 

The ineffectiveness, not. to men tion the injustice, of a case-by-case review boa rd was d em onstrate d in Tru man ’s Pre side nt ’s Am nesty Board 

of 1946-47. Of the 15,805 resisters considered bv this boa rd, only 1.523 

were gran ted amnesty. All Je ho va h’s Witnesses were refu sed amnesty. 

Tec hnically, this review bo ard pro vided pardo n, not amnesty.

More im po rta nt, however, would be the gross inequity of dis crimi ­

na tin g between these two gro ups of wa r resisters. As we all know, a 

less res trictive definitio n of conscientious objector was enu nciated by 

the Supreme Co urt in 1970. But this was long af te r many young men 

had alr ead y been refuse d conscientious o bje cto r status. Even af te r the 

Co urt’s decision in the Wels h case, there were m any less ed ucated men 

who were unable to artic ulate th eir beli efs in such a ma nner as to 

qu alify for conscientious objector statu s. Ma ny more, I am sure, were 

not even awa re of the Sup rem e Co urt’s ho lding or of the procedures 

to be followed to qu ali fy f or such s tatus. O the rs, feeling an o blig atio n 

to serve th eir cou ntry, accepted i ndu ctio n but late r fou nd it impossible 

to pa rti cipa te in the imm oral wa r in Vietnam. All. I submit, acted on 

the basis of th ei r str ong moral beliefs. How can we possibly distin ­

guish among them wit hout doi ng violence to our own principles of 

jus tice and equ ity? We all know th at the dr af t, as adm inistered , was 

gro ssly dis crim ina tory—allo win g stu dent deferme nts and prov idi ng 

loopholes fo r those who knew the ropes. On ly by gr an tin g a blanke t 

amnesty to all wa r resiste rs can we ho pe to overcome, at least in pa rt, 

these pas t ineq uities and discriminations ag ain st the poor, the less 

well edu cate d, and members o f minority groups.

Mr. K astenmeier. T he Ch air dislikes to in te rrup t the witness, but 

we have a second call, and T think it will be possible fo r you to finish 

yo ur statement at th is point.

Ms. Abzug. No.

Mr. Kastenmeier. I would like you to eit he r briefly summarize or 

we will return at 1 :30 a t which tim e you can complete vour state ment, 

either one. We will be in session in any event at 1 :30 because the re are 

othe r congressional witnesses.
599

Ms. Abzug. W ell, I rea lly th in k I sho uld give you the op po rtu nity 

to h ear the rest of my statem ent.

Mr. Kastenmeier. In which case, you will be the leadoff witness. 

Ms. Abzug. I f it is all righ t wi th you, Mr. Ch airma n.

Mr. Kastenmeier. Until 1 :30 the subcom mittee sta nds in recess. 

Ms. Abzug. Than k you v ery much.

[W her eup on, at 12:10 p.m., the he aring was recessed, to reconvene 

at 1 :30 p.m. th is same day.]

AF TE RN OO N SE SS ION

Mr. Kastenmeier. Th e committee will come to order.

Wh en the committee recessed fo r a call of the H ouse th is a fte rno on 

we were he aring from Congresswoma n Abz ug, who was tes tifying . 

You ha d just conc luded by sayin g “cr itic s of amn esty are n umerous,’’ 

Ms. Abzug.

Ms. A bzug. Cr itics of am nesty are numerous, vocal, and in the m ain, 

sincere. Two arg um ents are most fre quently advanced by them to 

cou nter the idea o f amnesty. First , while few critics attem pt to ju stify 

the war policy itself, the y arg ue that amn esty fo r wa r-resisters would 

dishonor the sacrifices made b y th ose Ame rica ns who foug ht in So utheas t Asia. I do not belittle thes e sacrifices. On the co ntrary, I mo urn 

the m bitte rly an d dee ply because I deem the m to have been purpo seless, squ and ere d by the Government for wr on gful ends or n o ends at 

all. I am angered and I am sickened when I c ons ider all the tra gedie s 

of the w ar, b ut I do not dir ect my anger at tho se who refuse d to fight 

who were themselves victimiz ed. I direct m y anger at t he responsible 

parties—the wa rmake rs in ou r Governm ent. They are the ones who dishon ored ou r soldiers, by using them and wa sting them in a co rru pt 

enterprise. If the Go vernm ent ha d list ened to th e dra ft resister, the 

demo nstrator , and the deser ter lon g ago , many lives would have been 

saved a nd much su ffering averted.

To make an ana logy, whe n a c ou rt system sentences a ma n to death 

and late r strike s down the law u nd er which he w as sentence d, reve rsal 

is ordered. Th e courts do no t ins ist upo n the sentence fo r th e sake o f 

consistency o r to honor oth ers who were w rong fully executed. In ca rrying o ut this war, the Government, in effect, pronou nced sentence erroneously ag ain st 55,000 young sold iers , ag ains t the 300,000 who were 

maimed , ag ain st the whole soul and purpo se of t he Am erican peop le 

as well as the ma ny in Ind ochin a. It is tim e for th e Government to 

reve rse its elf now, and not blindly pe rpetua te th is wr ong by pun ish ing 

those who ref use d to fight.

Fu rth ermore, how can we be so co ncerned th at am nesty wou ld dishonor the vetera ns and cas ualtie s of Vietn am , when many of the 

vetera ns them selves are the most active, ded icated opponen ts of the 

war, and the most vocal proponents of a mnesty? Ma ny veteran s, ha ving witn essed the war ’s consequences, an d havin g now examin ed its 

deceptive ration ale , have concluded th at t hey sho uld no t have foug ht 

and would them selves have refuse d to fight ha d the y been aw are of 

the fact s a t the tim e.

A second arg um ent commonly adv anced to oppose amnesty is th at 

amnesty now would lead you ng men of th e fu ture to believe that the y 

could sh irk th ei r m ili tary dut ies with impunit y. Th us, the argu men t
600

goes, a nd we heard it here th is morning, in some future national emergency, we would be unab le to raise armies. Bu t, as I have p ointed out, 

amnesty m easures have followed nearly every m ajo r war in our histo ry. 

Am nesty is an Am erican tra ditio n. An d yet histo ry also shows th at 

whenever the country has been in danger, young citizens have responde d and sacrificed w illi ngly in combat. In fact, t his c ountr y neve r 

has experienced significant difficulty in raising arm ies for its real 

military needs. I have fa ith in the pa trioti sm of young Ame rican s. 

I have fa ith th at they wou ld rise to defend th is c ountr y if a nat ion al 

emergency rea lly req uired it. But I also have fa ith in th ei r ability to 

th in k fo r themselves, to distinguis h righ t from wr ong where their 

Go vernm ent’s policies are concerned, and to have th e courage to resist 

official policie s when they are manifestly immoral.

Fo r these reasons, I reject the co ntentio ns of those who would deny 

amn esty . I submit, to the contr ary , th at a bro ad amn esty measure 

would honor us as a n ation and serve our m ost vital n ational inte rests. 

It w ould heal a t leas t some of the woun ds rem ain ing from t his immoral 

war and would enable us—<as a nation—to utilize one of ou r most 

valuab le resources, the tho usa nds of you ng men and women lost to 

self-imposed exile.

For th e first time in our his tor y, a s ignific ant segment of our y oun g 

people—to gether with th ei r fam ilies—hav e fou nd it necessary to live 

abroad. A majo r pur pose of my amn esty mea sure mu st be to bring 

these exiles home, so the y can lend their energies to reb uil din g the 

Nation, to effecting the changes we need, an d to wo rki ng wi thin the 

political str uc ture to insure th at we will have no more Vietnam s. No 

measure sho rt of u nco nditio nal , universal amn esty such as I have pr oposed here will b rin g these men home.

They reject the concept of amnesty for some and not othe rs and they 

reject the idea o f alt erna tiv e service. All those to whom I have spoken 

or wr itten ask the same question in various ways, “I f the wa r was 

criminal and we refuse d to com mit the crim e, why should we be 

punished ?”

I join with wa r resiste rs in reject ing the tokenism inh ere nt in oth er 

pro posals fo r less th an total, blan ket amn esty.

Am nesty is not only a legal question, it is a mo ral one. I t is the 

morality of the issue which caused millions of A me ricans to question 

the wa r. and it is the morali ty of the issue th at has caused many of 

the lea din g religio us insti tut ion s to raise th ei r voices in favo r o f 

amnesty.

The, P ro testan t Ep isc opal Ch urc h of the Un ite d Sta tes , in the fall 

of 1973, passed the f ollo win g resolution:

Whereas, American society must proceed to heal the wound at home and 

abroad caused by the War in Indochina and to reconcile all people in peace * * * 

Resolved, that the House of Deputies concurring, th at this Convention calls 

upon diocese and parishes of this church to include in the ir Christia n education 

and social concerns program a serious consideration of the question of amnesty 

and the needs of return ing veterans.

In November last y ear, the B iennial Gen eral Asse mbly o f th e Uni on 

of Am eric an Hebrew’ Co ngreg ations passed the following:

Based on the Jewish religious concerns to reconcile generation with generation, person to person and in consonance with the prophetic cry of Ma lachi: to 

tur n the hearts of the par ents to the children and the heart s of the children to 

the parents, it is our considered judgment that the first way to effect this healing
601

process is by Congress gra ntin g amnesty to those young men who fou nd, ear ly or 

late, th at they could not par ticipa te in the war and went to prison, resisted or 

deserte d. As we m ake peace with our enemies let us also make peace with these, 

our youth.

With full respect for those who chose t o serve a nd those who sacrificed so much 

for the ir country, we call upon Congress to gra nt unconditional amnesty as an 

act of reconcilation and compassion th at c an help speedily reu nite t he American 

people for the key ta sk of justice and peace which lie ahead.

I would also like to note tha t the U.S. Catholic Conference has 

adopted a position favoring unconditional, universal amnesty.

They said:

Who should be granted amne sty ?

Fir st, those young men who were subje ct to the dr af t but whose inform ed 

conscience led them to oppose participation in the Vietnam war, even though 

they could not say in conscience th at they were opposed to all use of mili tary 

force. These selective conscien tious objectors ar e now servin g priso n terms.

We do not believe any usefu l purp ose is served a t this time by c ontinuin g the 

inca rceratio n in federal prisons of these young men whose consciences inst ruc ted 

them not to engage in the killing and dying in the Vietnam war * * *

Secondly, we also recognize th at an add itional group of young men are in a 

somewhat sim ilar position, th at is, men in mil itar y service, who for reasons of 

the ir consciences were compelled to refuse to serve in the wa r and who were 

imprisoned or given less tha n honorable discharges. Here a gain the complicating 

impact of selective conscientious objection upon the str uctur es of military law 

is evident. However, we do not believe th at the indiv idual forfeit s his right to 

exercis e the dictate s of his conscience once h e ent ers the ranks of the mil itar y, 

or, for th at ma tter, any other form of employment. The Tequest for amnesty 

for selective conscie ntious objectors in fede ral prisons, ther efor e, should also be 

extende d sim ilarly to men in m iltary jails .

Thirdly, the re is the group of young men who have lef t the country or who 

have remained in the country as fugitive s from the law because they fel t compelled to follow the ir consciences r athe r tha n the law. Certainly the ir experiences 

of sufferings and sepa rations have been try ing for them person ally as well as 

for the ir families and friends. We again urge officials and all Americans to respond to their conspicuous need to find a solution to the problems of these men 

throu gh the reconciling work of amne sty.

I would also like to relate to the committee testimony I heard from 

Eddie Sowders. Mr. Sowders was a deserter who turned himself back 

to military control afte r testifying at the ad hoc hearings that I and 

other Members of Congress conducted in May 1973.

Mr. Sowders related what he had seen and done in Vietnam and 

how this led to his decision to leave the Army. He told of what it was 

like to live “underground" in the United States, moving from one lowpaying job to another, sometimes going hungry. But, as he told me and 

the other Members of Congress at the hearing :

I make no apology for my act of r esistance. I could do n othin g else at t he time.

He concluded his statement by sayi ng:

Only by winnin g a unive rsal, unconditional amnesty for all catego ries of war 

resi ster s can we begin the long process of chan ging our country and learning 

from the d ecade of blood and bit tern ess in Indochina.

When the Civil War ended, America tried no Confererate soldiers 

for treason, sent no one who had opposed the Union into exile, sent 

none of the officers and officials of the Confederacy to prison. Is it too 

much to ask that we in the 20th century, more than a year after we 

acted to conclude the longest war in our history, do the same for those 

who bv their courage and the strength of their convictions showed 

many of us the wrongess of the war in Vietnam ? This would go a long

31 -6 58 0 — 74 10
602

way to restoring the faith of our young—in fact of all our people— 

in our Nation’s past and future.

Mr. K astenmeier. I would like to congratulate my colleague on a 

very excellent and eloquent statement. I low many other members have 

joined in the cosponsorship of the legislation ?

Ms. Abzug. Well, we have three cosponsors.

Mr. Kastenmeier. There are four of you, you and three others?

Ms. Abzug. The Dellums bill is the same bill.

Mr. Chairman, I have some petitions which I would like to present 

to the committee, which contain 20,000 signatures collected across the 

Nation by two organizations. Women Strike for Peace and the War 

Resisters’ League, in support of the unconditional amnesty bill on 

which I have testified today. These are two organizations, as I believe 

the committee knows, that have been in the leadership in the struggle 

in this country to make clear the nature of this war from its outset.

I think their leadership and their understanding of the moral and 

legal issues involved, both in the nature of the war and in the necessity 

to restore faith in this Nation by an amnesty proposal such as this, 

is something that the committee and the Congress should give consideration to. And I would like to present these petitions to the committee 

since I feel it would add to our record.

Mr. Kastenmeier. Without objection we will take due note of the 

fact and receive the petitions from the War Resisters' League and 

from the-----

Ms. Abzug. Women Strike for Peace.

Mr. Kastenmeier. Women Strike for Peace consisting of 20,000 

names.

[The petitions referred to are in the files of the subcommittee.]

Does the gentleman from Massachusetts have any questions?

Mr. Drinan. I want to congratulate my colleague for this fine and 

excellent statement. I have just one question, Mr. Chairman, and th at 

is to the impact of the first part of your bill.

It has been discussed here by Mr. Joseph Ranh and one or two 

others. I wonder if somehow we have to go back to the m ilitary for a 

resolution of the question, for example on section 3, No. 4, that on the 

honorable discharge, if a person can get an honorable discharge, if 

the violation of the particular statute was solely the cause for substantial cause of the granting of the other-than-honorable discharge. 

In other words, are you going to allow the military tribunals to carry 

tha t forward or is there remedy for that person to go before some other 

tribunal ?,

Ms. Abzug. Well, as you know, we believe th at they should, as we 

indicate in the bill, have only honorable discharges. In the event th at 

an individual is aggrieved by the refusal of a military board to gra nt 

an honorable discharge to him under section 3, No. 4 of this act. then 

we provide for the Amnesty Commission, which we have set up in 

this bill, to have jurisdiction to hear and determine applications for 

such individuals.

Mr. Drinan. Despite the fact that the whole first p art of it is automatic, I am wondering how many thousands of cases of less-thanhonorable discharges would in fact have to appeal to this Amnesty 

Commission? A lot of these young people wouldn't even have heard 

about it and wouldn’t have the resources to go to it. I wonder if you
603

thought about making it so automatic tha t they don’t have to go 

through this test, so to speak ?

Ms. Abzug. The bill itself provides for automatic amnesty under 

those conditions, but in taking into consideration the reality th at they 

may not get it. we have provided for another right in addition to our 

providing for that automatic amnesty.

Mr. Drixax. All right, thank you very much.

Mr. Kastexmeier. The committee appreciates your work on this. 

You in fact have conducted earlier hearings. I believe?

Ms. Abzug. Ad hoc hearings.

Mr. K astexmeier. Last year on the question of amnesty?

Ms. Abzug. Yes. I did. But I do want especially to thank the chairman for holding these hearings. I think that we held ad hoc hearings 

at a time when there was perhaps less support for the whole issue of 

amnesty. I think support has been growing and I think that the leadership demonstrated by the Chairman and this subcommittee by holding 

these hearings is very significant. T think it is highly indicative of 

what is needed today, and tha t is up to the Members of the Congress, 

to the leaders in Congress, to show the way and to initiate the opportunity for changing our directions. We have been misdirected in many 

instances, particularly in everything relating to this war. And I appreciate your being interested in the concerns and the plight of the 

victims of this war which have been so unattended by the Congress 

and the Nation. I think you are to be highly complimented and I 

believe that this will move us on to a furth er stage in which the Congress will follow this kind of leadership in enacting appropriate 

amnesty legislation.

Mr. Kastexmeier. We hope so. Thank you.

Now the Chair would like to call Hon Edward Koch, Congressman 

from New York, who also has had a long interest in the question of 

amnesty and is an old and valued friend.

TEST IMON Y OF HON. EDW ARD I. KOCH, A RE PR ES EN TA TIVE IN 

CONGRESS FROM THE STATE 0E NEW YORK

Mr. Koch. Mr. Chairman. I first would like to introduce my legislative assistant. Robert Weiner, who has joined me at the table and who 

has worked very hard in the preparation of the formal statement that 

will be submitted.

I should like, with your permission, to file my formal statement with 

various exhibits and then to highlight what T think would be most 

appropriate from the formal statement in my remarks this morning.

Mr. Kastexmeier. Without objection your statement and the exhibits will be received and will be printed in the record in their entirety 

together with an appendix consisting of some other factual material 

in connection with your statement.

FThe statement of Edward Koch, together with the appendix, 

follows:]

Statement of Rep. Edward I. Koch

Mr. Chairman, I am pleased to be able to testify here today on the subject of 

amnesty.

As you know, I have introduced legislation on this ma tte r in this and the 

previous congress, and I am par ticu larly gratified that these hearings are occur-
604

ring. Perh aps through the airing of many sides of the issue, we can bring all

Americans home from th e most trag ic w ar in our history.

The dimensions of the problem are staggering. As ea rly as December, 1971, the 

Neiv York Times estimated th at 70,000 to 100,000 young people could face prosecution for violatio n of mili tary law or the Selective Service Code. T he number now 

is even greater.

Her e’s how th e num bers break down :

From August, 1964. the beginning of the Vietnam War as defined in the U.S. 

Code, thro ugh July, 1973, over 19,000 young people have been prosecuted for 

violation of the Selective Service Code—i.e., draft evasion. Of these, nearly 8,000 

were convicted, and 5,300 went to jail. 3,900 were placed on probation. (See 

table s.)

This is only the surfa ce of the number of dr af t resis ters. There is an unexplained 4% difference between the live male births of 1953 and 1954 and the 

number of d ra ft reg istr ant s in 1971 a nd 1972. Of course, everyone did not a ctua lly 

serve, but all eighteen year-old men were required to register. The death rat e 

would dimin ish the unaccounted-for difference slightly, and immigratio n would 

incre ase it. Yet as Mr. Sftmiel Shaw, Legislative Liaison for the Selective Service 

System, acknowledged in a recent telephone conversation with my office, “There 

may be a bunch of people that, didn't register, but how do we know ?”

Therefore, apparently , there are thousands of fugitives from just ice in or outside the United States. Every one of these young people is legally subject to five

year s in jail , a fine of ten thous and dollars, a felony charge, and loss of the righ t

to vote.

Most of those who did not register will never be prosecuted because th e Selective Service System does not even know who they are.

This is fa r from an equitable system. Some ar e free while those who l eft this 

coun try or stood prosecution, some because of the ir beliefs, othe rs perha ps for 

less valid reasons, are now sep arated from the ir families, friends, and nation, 

and the ir family, friends, and nation from them. As Time Magazine noted, these 

are “The Men Who C annot Come Home”. Or as one d raft counseling organization 

described the exiles, th ey live in “limbo”.

I trav eled to Canada in 1969, spoke with draft exiles in Toronto, Montreal, 

and Ottaw a, and found at th at time tha t many wante d to retu rn. I believe the 

numbe r is even gre ate r today.

They are now unable to do so witho ut fea r of jai l sentences.

Those who left are fugitives. Those who remained are convicted or leading 

unde rgrou nd lives in our society.

Is this how to heal the wounds of the nation after the most bit ter inte rnal 

ideological strugg le we have had in over one h undre d yea rs? Ju st thin k of what 

we have made—justifi ably—of the fact that the Soviet Union exiled one br illi ant 

dissiden t wri ter from the ir country. How does i t look to the rest of th e world tha t 

America has developed an e ntir e class of i>olitical exiles?

The Vietnam Wa r was the first time in American histo ry th at a majority of 

the American people eventu ally opposed o ur taking pa rt in a war once we were 

in it. The war created liter ally millions of active political workers who successfully began the tren d th at broug ht the Congress to action. They lobbied for 

legis lation which we finally passed. They held meetings and called them marches 

and sit-ins. They organized drives for petitions th at we began to read. Afte r all, 

as Daniel Webster asked duri ng the War of 1812, “Where is it wri tten in the 

Con stitution th at you may take children from the ir pare nts, and parents from 

the ir children , and compel them to fight the bat tles of any war in which the 

folly o r th e wickedness of government may engage i t? ”

Bu t are we prosecuting the war pro testers ? No, of course not—at least not 

any more. But those who were young enough and unlucky enough to be d raft ed, 

who then prote sted—dissent from this group we will not tolerate . They cannot 

vote. They cannot have full citizenship. They canno t ret urn to this country which 

they may have even trie d to help before they felt they had to leave.

Congress is behind the times. As early as November 7, 1972, the Gallup poll 

conducted for "Newsxceek showed th at 71% of the American people favored eith er 

unconditional or conditional amnesty , with 22% opposed and 7% who didn’t 

know. A Gallup poll of February, 1973 shows 78% in favor of eith er form of 

amnesty . As the war grows furth er and furth er from our minds, more people 

are willing to heal the wounds.
605

Sin ce 1969, mo re an d mo re A m er ic an re lig io us org an iz at io ns ha ve ad op te d 

officia l po sitio ns en do rs in g am ne sty fo r pe rs on s wh o wo uld not se rv e d u ri n g th e 

war . H er e is a p a rt ia l l i s t : The Am er ic an B ap ti st s, Th e Am er ic an F ri en ds 

Se rv ice Co mm itte e, T he Di sci ple s of C hr is t, T he C hri st ia n R ef or m ed Ch ur ch , 

Th e Ch ur ch of th e B re th re n, Cle rgy an d L ai ty Co ncern ed, The H ou se of th e 

Bi sh op s of th e Ep isc op al Ch ur ch , Fel lo w sh ip o f Rec on cil iat ion, The In te rr el ig io us 

Co nf ere nc e on Am ne sty , Th e Am erican Je w is h Co ng res s, The N at io na l F ed era ­

tio n of Te mpl e Si ste rh oo ds , Th e Un ion of A m er ic an H eb re w Con gr eg at io ns , U.S. 

L uth era n Co unc il, The Old M en no ni te C hu rc h, T he N at io na l Co un cil of Chu rc he s 

of C hr is t, T he N at io na l Co nf eren ce of C at ho lic Bi sh op s, Th e Sou th er n C hri st ia n 

L ea de rs hi p Co nfe ren ce , Th e U ni te d Chu rc h of C hr is t, Th e U ni te d M et ho di st 

Ch ur ch , an d The U ni te d P re sb yte ri an Chu rc h in th e U.S.A.

Bot h th e P re si den t an d th e Co ng res s ha ve th e po w er to g ra n t am ne sty. 

A rtic le II , Se cti on 2 of th e C on st itut io n giv es th e P re si den t th e “pow er to g ra n t 

re pr ie ve s an d pa rd on s fo r off ens es ag ai nst th e U ni te d S ta te s” an d no whe re 

pr ec lu de s co ng re ss io na l ac tio n. In E x P a rt e G ar la nd (1 8 6 6 ), th e Su pr em e C ou rt 

ru le d th a t pre si de nti al am ne st y “ex te nd s to ev er y off ense kn ow n to th e law , 

an d ma y be ex er ci se d a t an y tim e eit h er be fo re lega l proc ee di ng s a re ta ken , or 

du ri ng th e ir pe nd en cy , or a ft e r co nv ic tio n. ” As fo r co ng re ss io na l am ne sty, th er e 

are no gr ou nd s or pr ec ed en t fo r a ru li ng as un co ns ti tu ti on al . In fa ct , th e Con ­

gr es s ha s th e po wer “To mak e ru le s fo r th e go ve rn m en t an d re gu la tion of th e 

la nd an d na va l forces, . . . to pr ov id e fo r or ga ni zi ng , ar m in g, an d di sc ip lini ng 

th e m ilitia , . . . an d to m ak e al l la w s w hich sh al l be ne ce ss ar y an d pr op er fo r 

carr yin g in to ex ec ut io n th e fo re go ing po we rs, an d al l o th er po wer s ve sted by 

th is C on st itut io n in th e Gov er nm en t of th e U ni te d Sta te s, or in an y D ep ar tm en t 

or off icer th er eo f” (A rt ic le I , Se cti on 8 ).

Ye t th e prob lem of au th o ri ty ma y be fa r les s co m pl ica ted. My pr op os ed co nd ition al am ne sty le gi slat io n, as an Ac t of Co ng res s, wo uld be sig ne d by th e P re si ­

de nt. Onl y in th e ev en t of th e need fo r an d succ es s in over ri din g a ve to m ig ht 

th e qu es tio n ev en a rise .

T he re are th os e wh o sa y th a t gra n ti n g am ne st y wo uld w ea ke n ou r co untr y’s 

fu tu re m il it ar y pol icy by se rv in g as pr ec ed en t fo r fu tu re vi ol at or s. Ye t Ge org e 

W as hi ng to n, wh o de m on st ra te d a cl ea r se ns e of A m er ic a’s pr op er dir ec tion by 

re fu si ng th e off er of Kings hi p, m us t no t ha ve fe ar ed pr ec ed en t whe n he gra nte d 

am ne sty a ft e r th e W isk ey Re be llio n in 1794. Nor di d And re w Jo hn so n fe ar 

pr ec ed en t whe n he gra nte d am ne st y to des er te rs an d op po ne nt s a ft e r th e Civ il 

W ar , co nd itio na l up on sign in g an oa th of al le gi an ce to th e U ni te d Sta te s. In 

Jo hn so n’s ow n wo rd s fro m hi s 18 68 Pr oc la m at io n, “A un iv er sa l am ne st y an d 

pa rd on . . . wi ll te nd to se cu re per m an en t peac e, or de r, an d pro sp er it y th ro ughou t th e la nd an d to re ne w an d fu lly re st ore con fid ence . . . am on g th e wh ole 

peo ple, an d th e ir re sp ec t fo r an d att ach m en t to th e nat io nal go ve rn m en t.” No r 

di d Th eo do re Ro os ev elt , W oo drow W ils on , Calv in Coo lidg e, F ra n k li n Ro os ev elt , 

or H a rr y T ru m an fe ar pr ec ed en t wh en ea ch of th em gra nte d am ne st y in som e 

for m.

In fa ct , th er e ha ve bee n th ir ty -f o u r in st an ce s of am ne st y in som e fo rm in 

A m er ic an hi st or y, re st ori ng ci tize ns hi p an d fu ll ri g h ts to m an y th ousa nds of 

Am erican s.

A ft er W or ld W ar II , Fra nc e. Nor way , Ger m an y, Be lgi um , Ja p an , an d th e 

N et he rl an ds gr an te d am ne sty to pe rs on s wh o ha d en ga ge d in “co m pr om isin g” 

w ar ti m e ac tivi ty . A ft er th e wa y we ap pe ar ed to m os t oth er nat io ns by th e end 

of th e Vietn am w ar —le t’s fa ce i t !—am ne st y wo uld be a sign al to th e wo rld 

th a t we a re a ga in l ea de rs , no t follo we rs.

In 19 69 an d ea ch se ssion of co ng re ss th ere aft er, I in trod uc ed le gi sl at io n (H R 

2034) g ra n ti n g co ns ci en tio us ob je ct or st a tu s re tr oac ti vel y to pe rs on s wh o re fu se d 

in du ct io n be ca us e of th e sp ec ial n atu re of th e V ie tn am w ar , bu t who se re fu sa l 

wo uld no t ex te nd to al l w ar s. Thi s le gi sl at io n rec og ni ze d th e gr av e im pl ic at io ns 

of o u r invo lv em en t in Sou th ea st As ia. U nfo rt un at el y, th e Se lec tiv e Co ns ci en tio us 

O bj ec to r bi lls wer e no t ad op te d. H ad th ey bee n, we wo uld no t be in th is me ss 

to da y. I al so be lie ve as Jo hn Ke nn ed y di d wh en he sa id , “W ar w ill ex is t un til 

th e d is ta n t da y wh en th e Co ns ci en tio us O bj ec to r en jo ys th e sam e re p u ta ti o n an d 

pr es tig e a s th e w arr io r do es to da y. ”

L et me no w co mm en t on my am ne st y le gi sl at io n wh ich I hope you wi ll co nsi de r ca re fu ll y in ord er to re port a bil l to you r fu ll co m m itt ee an d to th e floo r 

of t h e Ho use .

H R 67 4 re st ate s th e P re si d en t’s au th o ri ty to g ra n t am ne st y an d urg es him 

to se t up th e m ec ha ni sm to do so. T hi s co uld be, b u t wo uld not ha ve to b e, si m il ar 

to th e am ne st y bo ar d whic h H arr y T ru m an es ta bl is hed a ft e r W or ld W a r II an d
606

which granted amnesty on an individual basis to 1500 men. However, I am 

hopeful th at any such current hoard or tribunal, or the Presiden t himself, 

would be far more broad-minded than the earlier board. Only one-tenth of those 

eligible were pardoned. Whereas World War II was more and more accepted 

by the American people as the facts became clear, precisely the opposite was 

true for Vietnam. The facts served only to mobilize people against this war.

HR 675 would gra nt amnesty, conditional upon two years of alternative 

service, to all persons who refused induction during the Vietnam War, whether 

they are currently imprisoned, released, or in foreign countries. Those who 

already served or are serving prison sentences can receive up to one year’s 

credit toward this national service. He may serve eith er in the military, or in 

Action, a Veteran’s Administration or Public Hea lth Service hospital, or some 

similarly approved position. He would serve at the same pay scale as he would 

have as a conscientious objector.

If he carries out these provisions, lie will receive amnesty with a restoration 

of all citizenship rights. Administration will be carried out by the Attorney 

General’s office.

Former Secretary of the Army, Robert F. Froelilke, was quoted in the February 26 Congressional Record as favoring an amnesty plan which is “not vindictive”, but in which those who left must perform some national service. Former 

Defense Secretary Melvin Laird has issued a similar statemen t. But in Froehlke’s 

opinion, even thre e months of such service could be sufficient if worthwhile duties 

are accomplished in th at amount of time—showing the change in attitu de on the 

pa rt of so many who formerly opposed amnesty in any form.

I am awa re that it is unre alistic to project the Congress now passing legislation with a three-month altern ative service requirement, or no requirement, as 

has been proposed by some of my colleagues. If such a bill were to come to the 

floor I would vote for it. I offer this bill, with a two-year requirement, as a proposal which takes into consideration the feelings of the country at this time, 

which is a desire to come to gether after a divisive episode in our history.

You are w’ell a ware of the diminishing esteem citizens have for the presidency, 

the Congress, and the government as a whole. The granting of amnesty would 

be a symbol of strength by a democratic government, indicating our ability to 

welcome all who want to take part in the post-Vietnam era.

Our national policy has been inconsistent at best. The President sent Secretary of State Henry Kissinger to North Vietnam to negotiate economic reconstru ctio n aid. If wTe can consider assisting the very natio n w ith which we engaged 

in combat, resulting in the death of fifty-five thousand of our men, do we not 

have the compassion to forgive our own men who are still alive and desire to return to the U.S.?

We insisted in the Nuremburg war trials that it was an individual's obligation to reje ct immoral orders. The United States prides itself on its capacity 

for allowing dissent in our democratic form of government.

Are w’e not a humane, compassionate people? Especially after a war where 

many of our own preconditions concerning foreign policy changed, do we not 

have the ability to forgive?

I would like to submit the following materials fo r the record : New York Times Editorial, February 13. 1974; National Interreligious Service Board Amnesty 

Fact Sheet and Visual Aids; Live Male Births, 1953 and 1954, and Draft Registrants , 1971 and 1972; Selective Service Systems Complaints to United States 

Attorneys; Selective Service System prosecutions, etc., 1945-73: Religious Sta te­ ments on Amnesty, compiled by the National In ter religious Service Board for 

Conscientious Objectors : A List of Amnesties in American History, 1795 to Date.

Recent Polls on Amnesty

In a Gallup poll of March 5, 1973. a total of 7S% of the respondents wanted to 

allow dr af t resisters to retu rn to the United States, eith er unconditionally or 

with ce rtain prerequisites. The breakdown was as follows:

Percent Favor unconditional amnesty______________________________________ 29 Require military service__________________________________________ IS Require nonmilitary service_______________________________________ 10 Require eith er military or nonmilitary service________________________ IS Require payment of fine___________________________________________ 3

Total th at would allow dr aft resisters to return________________ 78
607

In addition, 10% wanted to require a jai l sentence, and another 10% of those 

polled had no opinion. Only 12% would not allow draft resisters to return under 

any circumstances.

A recent (March 4, 1074) Ha rris poll confirmed these results. A plu rality of 

respondents (45% to 43%. with 12% undecided) supported amnesty with a requirement of two years of alternative, non-military, national service upon the 

res ister’s ret urn home. In a telephone conversation with my office, the Harris 

national o rganization acknowledged that if persons who wanted amnesty without 

any service requirement had been included in the number of those favoring 

amnesty (witli the service requirement, such persons said they opposed the amnesty described), the percentage of respondents favoring amnesty would have 

been even greate r.

PROSECUTIONS ETC. FOR SELECTIVE SERVICE VIOLA TIONS , 194 5-73

Not

Ye ar Prosecuted Convicted convicted Im priso ne d Pro bation

1973....................................................... ............ 3,49 6 977 2,519 260 707

1972.................................... ..................... 4,90 6 1,6 42 3, 264 458 1,1 78

1 9 7 1 . . . . . . . . . . . . . . . . . . . . . ........... 2,97 3 1,036 1,9 37 877 650

1970............................. ..........................._____ 2,83 3 1,027 1,8 06 450 572

196 9____________ . ____ . ____ 1,7 44 900 844 544 350

1 9 6 8 . . _______ 1,1 92 784 408 580 202

196 7_________ ________ ________ _____ 996 748 248 566 78

1 9 6 6 ... _____ . . . . . . ........... 516 371 145 301 64

196 5........ .......... .......... ........................... . . 341 242 99 189 52

1 9 6 4 .. ........... ........... 276 206 70 149 59

To tal, Vietn am e ra ................ . 19,273 7,93 3 11,340 4,3 71 3,91 2

1 9 6 0 . . . . . . . . . . . . . . . . . . . . . . . . ........... 239 166 73 126 37

1 9 5 0 ............................................. .. 449 175 274 109 65

1 9 4 9 . . . . . . . . ............................. _____ 506 292 214 213 73

1948 ............... ............................. _____ 833 304 529 212 84

1945........................................................ 4, 287 2.83 8 1,4 49 2,36 8 453

So urce: T ele phone conversation Feb. 26,197 4, between office o f C ongressman Edw ard I. Koch and Mr. James McCa fferty, 

Ch ief, Operations Branc h, Divisio n In fo rm atio n System, A dm in is trative Office of U.S. Co urt.

Live male births and draft registrants

Live male births, 1953________________________________________ 2, 034, 000

Dr aft registrants, 1971___________________________________ 1, 990, 234

Diffe ren ce____________________________________________ 43, 760

Live male birth s, 1954________________________________________ 2, 090, 000

Draft registrants, 1972_______________________________________ 1, 977, 720

Diffe ren ce____________________________________________ 112, 280

(Sou rces: National Center for Health Statistics of the Dept. of Health, Education, and Welfare, and public record of the Selective Service System.)

Complaints reported to U.S. attorneys by the Selective Service System

1967 _________________________________________________________ 19,774

1968 ___________________________________________________________21,332

1969 _________________________________________________________ 27,389

1970 ___________________________________________________________26,214

1971 ___________________________________________________________26,417

1972 ___________________________________________________________22,101

1973 __________________________________________________________ 16,575

(So urc es: L etter from Robert C. Mardian, Assistan t Attorney General, to Cong. 

Edw ard I. Koch, Jan uar y 31, 1972; also, 1973 ILS. Attorneys’ offices F iscal Report, Dept. of Justice, page 3.)
608

[From the New York Times, Nov. 27, 1971]

About Those Exiles

(By Edw ard I. Koch)

Washington.—In a recen t column on this page, Roger Williams, curr ently 

“in exile,” stri den tly demanded as conditions of retu rni ng home, first, punishment of American politic al leade rs and then an official apology to those, like 

himself, who left this country to avoid mili tary service. Mr. W illiams was among 

some forty exiles I met in Canada in December I960. I thou ght and said then 

th at we should face up to the problem, controvers ial and pain ful as it may be. 

With the war dragg ing on, but hopefully closer to an end, I thin k it even more 

imp ortant to encourage discussion of this tend er subj ect by reasonable men a nd 

women.

Mr. William s is not, however, a reasonable man. It seems quite clear th at Mr. 

Williams speaks for only a tiny minority of those who resisted perso nal involvement in an immoral war by choosing to flee from the ir coun try and violate its 

laws. The grea t majority of these men—now numbe ring between 20,000 to 60,000, 

the estimates vary considerably—tru ly love the United State s. They want to 

come home and tak e the ir places among the ir families and countrym en.

This problem should be resolved as soon as American troops are no longer 

fighting in Vietnam. Otherwise for more tha n a gene ratio n to come there will he 

bitte rness, unhappiness and family tragedy . There are difficult issues of public 

policy, philosophy and fairness involved. The legit ima te feelin gs-of those who 

served in Vietnam, many of whom opposed th e war, and the families of those who 

lost th ei r lives the re and in other wars cannot be ignored. Nevertheless, the 

problem can he approached constructively if the following premises are accepted.

Fir st, we should eschew the juven ile shibboleths and rheto ric of the extrem ists on both lef t and right—those that espouse Willi ams’ views th at America 

should apologize to the exiles and invite them hack as libe rato rs and also those 

who consider all these men indiscrimi nately as despicable tra itors.

Second, we should accept as an ultimate goal the ret urn of the gre at majo rity 

of these young men and the ir speedy rein tegr atio n into American life.

Third , we should recognize th at they are n eith er heroes nor tra ito rs. They are 

simply young people who broke the law for a var iety of motives—some selfish, 

most ideali stic. Although many Americans may not find t hei r conduct justifiable, 

it is at lea st to some degree explainable by the gre at moral, social and political 

transform atio ns we have all witnessed these last few years.

Fou rth, these young people, havin g broken the law, must face some penalty . 

But. wh at pen alty? We know enough about our system of criminal justi ce to 

recognize how counter-prod uctive and how irra tional it would be to impose jail 

term s on them. .Tail would only bru talize or break them. Besides, it is not really 

a solutio n since it is an option presently available t o them and obviously not one 

th at will bri ng them back.

We can make progress on this subjec t by conc entrating on the question of 

wh at new options should be made available in ord er to bring these men home. 

Pris on is not a real istic option but some lesser penalty might be acceptable to 

them and to most Americans in a post-Vietnam era. For example, they might be 

given the option of working for a year or two in VISTA or at some o ther public 

service job. Such an obligation, together with the discom fort of year s in exile, 

would in my view be more tha n an adeq uate penalty. But, it would be a penalty 

with a purpose. And it would be consis tent with America’s trad itio n of magnanimity at the end of hostilities . Indeed, after the Civil Wa r we granted an 

immediate amne sty to all who fough t again st their own countrymen.

Let us reach out to all the victims of this monstrous war—the imprisoned, the 

bereaved, the wounded, the jobless, and those young men in self-imposed exile.

[From t he New York Times, Feb. IB, 1974]

T he P ardoning President

Pre sident Lincoln’s generosity of spirit ca n be found most notably in his trea tment of Confederate prison ers and Union deserters. He took his role as Com-
609

mander in Chief seriously, yet even during the war’s fury bent military rules to 

save lives and rehabilita te men. In messages to Congress and the people, he 

pointed out that his proclamation of amnesty was “amply justified by the 

Constitution.”

With one pen he signed orders for new dr aft ca lls; with another he spared 

the lives of young men who, for one reason or another, refused to fight for their 

country or even ran off the field of battle. If there was a contradiction here that 

displeased Lincoln’s generals, i t was a contradiction in which the hea rt triumphed.

Punishment and false patriotism were not to be assigned to his name. To Secreta ry of War Stanton he wrote: “Regarding the fourteen-year-old sentenced to 

be shot for desertion, let us instead pardon this drummer boy and send him back 

home.” To General Sheridan he telegrap hed: “Suspend execution of death sentence and forw ard record of tria l to me for examination. If a man had more than 

one life, I thin k a little hanging would not hu rt this one, but as he has only one 

I believe I will pardon him.”

Today, more tha n a year after the end of the military (though not financial) 

presence of Americans in Vietnam, after a war that many in Congress and the 

country considered unconstitutional, there are still tens of thousands of citizens 

who are being punished withou t tri al by a vindictive Administration. These include draft resisters who are in prison or underground in their own co un try ; 

deserters living in Canada or Europe who are afraid to come hom e; veterans 

with less than honorable discharges because of antiw ar activities who cannot 

get an education or a job. And to these must be added the ir anguished parents, 

wives and children.

Lincoln’s Birthday and the days th at follow provide occasion for the Federal 

Government to show the same spirit of detente toward American war resisters 

that Washington is showing toward foreign governments whose weapons were 

aimed, not long ago, a t American men u nder arms. To overlook these Americans, 

who a re twisting in the wind of vengeance, is to p erpetua te the divisions caused 

by the Vietnam war.

The pardoning sixteenth President called those in need of amnesty what they 

still are today, “neighbors and neighbors’ sons.”

Nationa l I nterreligious Service Board for Con scien tio us Objectors

NISBC O’S AM NE STY FACT SH EE T

Resistance to dra ft

Violations of the Military Selective Service Act reported to the Department 

of Justice, 1962 through Jan uary 1973: 215,000-(-. [Sou rce: General Counsel,

Selective Service Syst em ; Departm ent of Justice.]

Men indicted for violations of the MSSA from July 1964 through Jan uary 

1973 : 23,414. [Source: Justice Dep artm ent; Selective Service Law Reporter.]

Men convicted for violations of the MSSA, July 1964 through J une 1973 : 7,720. 

[Source: Adm inistra tive Office of the United States Courts.]

3,826 of those convicted have been imprisoned, with sentences up to five years. 

[Source: Admin istrativ e Office, U.S. Courts.]

136 of these men a re still in prison, as of November 1973. [Source: Bureau of

Prison.]

Pending violations of the MSSA in J une 1973: 11,033. [Sou rce: General Counsel, SSS .]

5,576 are c urre ntly under indictme nt (about 4,800 of these are fugitives).

5,457 reported violations a re being processed to indictment.

Exiles

Total U.S. males age 15 to 29 granted landed imm igrant sta tus in Canada from 

1964 to 1971: 27,543. [Source: Canadian Department of Manpower and Imm igration.] AMEX-Canada, published by Americans exiled in Canada, estimates th at 

12,639 of these are war resisters.

Estimates of the tota l number of American exiles in Canada : 15,000 to 54,000. 

[Source: AMEX-Canada, SSLR, Canadian Manpower and Immigration.]
US MAL ES AGE 1 5 -2 5 GRANTED

LA ND ED IM M IG RANT ST ATU S IN

CANADA

8

in

1961

0961

8422 ....... it,,,... 1918 

5923 J . I . - ; ........... ■ ■■------ -------- B'.'..,'.... . 1919 

503 [ 2 3 1920 

148 I 1921 

C O N V IC T IO N S FOR V IO L A T IO N S

OF S E L E C T IV E S E R V IC E AC TS

00

. CO CM 

, oo m

co in cm

LO I— <3- *3- oo in co co

§ 3 • r>*

io cm co rm n 

o ” n

CM CM .

UJ I - L .

m m in io .— cm co m in io co

in in in i n in in m in in m

Cn CTi 0 1 CTt CT> CM CTt CTi CTl CTt CXI CTi CPt m CXI

900 BLLL'JJ 1969 

1027 3 1970 ___

1036 1 -i . - 1971 

 1643 — i'-w w 1..... 'l 1972 ’■

H4

O

SOURCE: Canadian Department o f

Manpower & Immigration

SOURCE: Ad minist ra tiv e O ffi ce , United Sta te s Courts
611

NISBCO ’s Amnesty I nformation Service

A LIST OF AMNESTIES IN AMERICAN HISTORY, 17 95 TO DATE

In this table amnesty is broadly defined to permit inclusion of several actions 

by the Executive th at should properly be considered “pardo ns” as well as legislativ e actions by Congress. The amnesties in American history, including date, issued by, persons affected 

and natur e of ac tio n: July 10, 1795, Washington, Whiskey insu rrec tion ists (several hundred). 

General pardon to all who agreed to there aft er obey the law.

May 21, 1800, Adams, Pennsylvania insurrectionists. Prosecution of participants ended. Pard on not extended to those indicted or convicted.

October 15, 1807, Jefferson, Deserters given full pardon if they surrendered 

with in 4 months. February 7, 1812, October 8, 1812, July 14, 1814, Madison, Deserters—3 proclamations. Given full pardon if they surrendered within 4 months.

February 6, 1815, Madison, Pirate s who fought in War of 1812 pardoned of 

all previous acts of piracy for which any suits, indic tments or prosecutions were 

initiated . Jun e 12, 1830, Jackson (War Departme nt), Deserters, with provisions: 

(1) those in confinement retu rned to du ty; (2) those at large under sentence 

of death discharged, never again to he enlisted.

February 14, 1862, Lincoln (War Departme nt), Political prisoners paroled.

July 17, 1862 (Confiscation Act) Congress, Preside nt authorize d to extend 

pardon and amnesty to rebels.

March 10, 1863, Lincoln, Deserters restored to regiments with out punishment, 

except forfeiture of pay during absence.

December 8, 1863, Lincoln, Full pardon to all implicated in or participating 

in the “existing rebellion” with exceptions and subject to oath.

February 26, 1864, Lincoln (W ar Departme nt), Dese rters' sentences m itigated, 

some restored to duty.

March 26, 1864, Lincoln, Certain rebels (clarification of Dec. 8, 1863, 

proclamation).

March 3, 1865, Congress, Desertion punished by forfeiture of citizenship. 

Presiden t to pardon all who return with in 60 days.

March 11, 1865, Lincoln, Deserters who returned to i>ost in 60 days as required 

by Congress.

May 29, 1865, Johnson, Certain rebels of Confederate States (qualified).

July 3, 1866, Johnson (War Departme nt), Deserters retu rned to duty without 

punishment except forfeiture of pay.

Jan uary 21, 1867, Congress, Section 13 of Confiscation Act (autho rity of P resident to grant pardon and amnesty) repealed.

September 7, 1867, Johnson, Rebels—additional amnesty including all but 

certain officers of the Confederacy on condition of an oath.

July 4 1868, Johnson, Full pardon to all partic ipa nts in “the late rebellion” 

except those indicated for treason or felony.

December 25, 1868, Johnson. All rebels of Confederate States (universal and 

unconditional).

May 23, 1872, Congress, General amnesty law reenfranchised many thousands 

of form er rebels.

May 24, 1884, Congress. Lifted restrictions on form er rebels to allow jury 

duty and civil office.

Jan uar y 4, 1893, Harrison, Mormons—liability for polygamy amnestied.

September 25, 1894, Cleveland. Mormons—in accord with above.

March, 1896, Congress, Lifted restrictions on form er rebels to allow appointment to military commissions.

Jun e 8, 1893, Congress, Universal Amnesty Act removed all disabilities against 

all form er rebels.

July 4, 1902, T. Roosevelt. Philippine insurrectio nists. Full pardon and amnesty 

to all who took an oath recognizing “the supreme a uthority of the United States 

of America in the Philippine Islands.”

June 14, 1917, Wilson, 5,000 persons under suspended sentence because of 

change in law (not war related).

August 21, 1917. Wilson, Clarification of Jun e 14, 1917 proclamation.
612

March 5, 1924, Coolidge, More than 100 dese rters —as to loss of citizenship 

for those deserting since World War I armistice.

December 23, 1933, F. Roosevelt, 1,500 convicted of having violated espionage 

or dr aft laws (World War 1) who have completed the ir sentences.

December 24, 1945, Trum an, Several thousand ex-convicts who had served in 

World War II for at lea st 1 year.

December 23, 1947, Truman, 1,523 individual pardons for dr af t evasion in 

World War II, based on recommendations of President’s Amnsty Board.

December 24, 1950, Truman, Ex-convicts who served in Armed Forces not less 

than 1 year after Jun e 25, 1950.

December 24, 1952, Truman, All persons convicted for having deserted between 

August 19,1948 and Jun e 25,1950.

Sources: Joh n C. Etridge, Foreign Affairs Analyst, Foreign Affairs Division, 

Library of Congress.

Mr. Koch. Thank you. Mr. Chairman and members of the committee. Before I proceed with my testimony on the subject of amnesty, 

I would like to comment on General Benade’s statement concerning 

SPN numbers. Although this committee unfortunately does not have 

jurisdiction over SPN ’s, the subject m atter is peripheral to our discussion of amnesty. T have introduced legislation, which is before the 

Armed Services Committee to remove the SPN numbers from discharge papers and I would like to bring some material to the attention 

of the committee because of some misinformation tha t may have been 

inadvertently provided by the general.

First, Separation Program Numbers—SPN—were first, used in 1955 

so those of us who served prior to that time did not have SPN's appear 

on our discharge papers. Somehow or other the Army was able to get 

along all those years without using SPN numbers.

For the past year I have had a good deal of correspondence with 

General Benade, reams of correspondence in fact, to ascertain the 

reasons for SPN numbers. The response always was that the SPN 

number is a classified number so to speak. It is not available to the 

public. It is not intended for the public. It is intended to provide 

the Armed Forces with information, which they would use in deciding whether or not to accept an applicant’s request for reenlistment.

Never did the general respond to my inquiries as to why the information could not be simply maintained in files, which were available 

to all of the services, and not be used on a discharge paper.

The committee should also know that the Air Force in a confidential report prepared for the armed services discussing this issue said 

tha t they were opposed to the use of SPN numbers. So the use of 

SPN’s is not unanimous with respect to their need or their use by the 

armed services.

What is particularly distressing about the use of SPN numbers is 

tha t they are available to a prospective employer. They are a matter 

of public knowledge. As the general admitted, there can be an adverse 

SPN number on an honorable discharge as well as an administrative 

discharge and a dishonorable discharge.

When General Benade was apprised of the ready availability of 

SPN numbers to employers and the public at large, he said, “Well, 

we are going to issue new’ numbers.” And the moment those new 

numbers come out, they will again be available to any enterprising 

employer who wants to use them.

As I have said, the S PN’s serve no purpose. Implicitly the general 

was admitting that when he said “Well, we want someone who served
613

without blemish to be able to produce something tha t will attest to 

tha t.” In effect, what he is saying is with a SPX number on there, 

tha t may be helpful to him.

Wha t the general is doing is really punishing people who have 

honorable discharges, and administrative discharges, which are not 

desirable. In addition, those who have dishonorable discharges, and 

who already have suffered a good deal because of tha t dishonorable 

discharge are further penalized. Also, a student who never served 

may be listed as apathetic under those SP X numbers. “Latent homosexual,” is another SPX number classification, as is bed wetter. There 

is a whole list of provocative words that may apply to a student wBnever served who was 4—F—if tha t is still the designation.

You have to understand that these are subjective designations in 

most cases based upon the commanding officer's opinion. One doesn't 

have an opportunity to contest those.

I think SPX ’s are an outrage. They should be ended. And the most 

conservative member of any committee, I think, looking at that, from 

just the point of view of fairness, would take tha t position.

Xow if I may, Mr. Chairman, I would like to tu rn to the question 

of amnesty. I think I am still the only member of Congress who has 

gone to Canada to talk to those who evaded the draft, refused to serve. 

I went there in December of 1969. I spent 2 days there in Toronto and 

Ottawa and Montreal and I spoke to a total of perhaps 40 or so young 

veterans and some of the wives of these young men.

When I came back, I held a press conference on January 1 of 1970. 

I remember the day very well because it was a huge snowstorm, but 

it was a very important moment for me.

What I said at t hat time was tha t we have to seek a means, which 

will permit the return of these young men without th eir going to jail. 

I said then that it was clear t hat we would not provide any kind of 

amnesty while the hostilities were goingon, although maybe we should, 

but the fact is we would not. I said though that we had to seek to find 

the means to provide amnesty when these hostilities ended. Tha t time 

has come.

And in 19711 introduced with Senator Taft the first bill on amnesty. 

It was a conditional amnesty bill. It provided th at anyone who refused 

to serve, or evaded the draft, would be permitted to return and do 2 

years of civilian service, and would then receive full amnesty. I t was 

interesting what the response was and continues to be, Mr. Chairman.

I have had people say to me “How can you take the position that 

these people should serve at all ? We should give them medals,” say 

some. I don't accept tha t position. I understand it, but I don’t accept it.

And then there are others who say “How can you permit anyone to 

return without punishment?’’ And I say “I don’t accept that position 

either.”

My legislation, the conditional amnesty bill, has tried to avoid 

ideology. It has tried to foster the position where those who opposed 

the war, like myself, can join with those who supported the war and 

in the interest of the United States, heal th is divisiveness that exists 

as a result of the war without any particular ideology advanced on 

either side.

Xow there are some who don't want to accept that. Some people 

believe tha t an ideology should be advanced either by labeling those
614

who refuse to serve as heroes or felons. I don’t acc ept eith er position.

I don’t th in k it is he lpful in healing the wounds.

Now the leg isla tion which I have introd uced is one th at I thi nk 

is acceptable to a bro ad sector of the C ongress. I say th at not because 

I have polled the Congres s, because I h ave not. I h ave spoken t o conservat ive Members of the Congress seek ing th ei r reactio n. Th e first 

response is th at “these young peop le must do som eth ing when they 

ret urn. We have to tak e some recognition of the fact they have come 

back an d the y failed to serve.” And I say to the m “well, OK . what 

do you h ave in mind? ” A nd the response is “th ey m ust go to j ai l.” So 

I say “you know, jail doesn’t help anyone who does something because 

he believes it is a moral act on his p art, a m at ter of conscience. Don’t 

you agree th at jail only hu rts in those cases? I t harde ns people. Ou r 

jails hav e not turned out reform ed personal itie s in any area. So th at 

is no t the way to deal with this this situation. Won’t you a ccep t some 

con struct ive actio n?”

An d the y say “well, wha t do you hav e in mind? ” An d I answ er 

“well, how abo ut serving in a public he alt h hospital, on an In dian 

reserv atio n, or in the ghettos of this cou ntry, in th e same way th at 

thes e young men could have served ha d we had ava ilable to them 

selective conscientious objector status. Whil e selec tive conscientious 

objector status should have been availab le it was not and is no t now. 

Sele ctive conscientious objector sta tus would have given them the 

same rig hts, un de r the law, as guara nte ed to those who fo r ph ilo ­

sophica l or reli gious reasons ha d refused to serve in any wa r.”

In alm ost every case those who are very con servative will respond 

by say ing “well, th at sounds to me reas ona ble.”

An d so I believe th ere is a p oss ibility of g ettin g th roug h a bill, which 

will have bro ad support .

Now, it also is he lpful th at the Am eric an public is sup portive of 

amn esty in some form . Th e Ga llu p poll in 1973 showed 78 percen t 

in supp ort of some form of amn esty , conditio nal or uncon ditiona l.

A pr ior poll to th at, I think in 1972, showed 71 perc ent.

Th e most recent poll was a poll taken by H ar ris, which did not 

refer to both forms of amn esty bu t only referre d to con ditiona l 

amn esty . Th ere , 45 percent of the pub lic said the y were fo r conditional amn esty. My recollection is th at 43 perce nt were opposed and 

12 perce nt ha d no opin ion.

But the re is no question in my min d th at at this po int a majority 

of the pub lic, an ove rwh elm ing majo rity, would supp ort conditiona l 

amnesty as I have outlined it here and I believe there is also a b roa d 

majo rity in the Congress fo r that conditiona l amn esty too.

Ju st to conclude my inform al comm ents—it is interesti ng to contr as t the numb er of live male birth s with dr af t registr ants. We find 

that there is a c onsiderable fall-o ff between the liv e b irth s in the year s 

1953 and 1954 a nd those 18 y ears later who actua lly r egistered for t he 

dr af t.

Press r eports show that Byr on Pepitone, who is a Selective Service 

Direc tor, is rep ort ed to hav e said t hat th ere is about a 4-percent d ro poff. There were some rep orts t ha t ind icated 10 percent, bu t in c heck ing 

it with his office, th e quote was 4 p erce nt; that 4 perce nt of tho se who 

should have registe red did not register. Now those people are felons 

or possible felons and their num bers run into the hu ndred s of th ou ­

sand s. They neve r registe red. They have just dis app ear ed.
615

Now if a bill were to come on the floor tha t provided unconditional 

amnesty, I would vote for it. There is no question about that. But I 

know th at is not pragmatic or practical at this particular moment. 

And when I hear and see these young men on television saying they 

are opposed to the conditional amnesty, my response to tha t is th at 

there is no requirement to take advantage of it. But I don't want to 

see those who would take advantage of it held in hostage by those who 

have as their goal the unlimited amnesty, which I would support. I 

want something done this year and I don’t want to wait to afford th at 

opportunity to those who could benefit from it this year.

Thank you.

Mr. Kastenmeier. We thank our colleague for his most constructive approach and also for his treatment of several issues including the SPN numbers, which has contributed to our dialog.

I wish to congratulate him for his long interest in this matter and 

his leadership. I only wish th at time permitted us to ask questions of 

you, but it does not. We are nonetheless pleased to have you.

Next a statement from Congressman Mitchell will be accepted for 

the record and inserted at this point without objection.

[The statement of Hon. Parren J. Mitchell follows:]

Sta tem ent of th e Honorable P arren J. Mitch el l

The re are those who will appear before you thro ugh out these hearings to 

ask for passage of amnesty legislation so th at we might, as a nation , show 

our compassion and forgiveness. While I do not fault those i>eople th eir motives, 

I do not agree with their reasons.

The passage of amnesty legislation is imperative, but not as an act of 

generosity. It is impe rativ e to dem onstrate to ourselves and to the world th at 

the United Stat es recognizes the inheren t superiori ty of the princip le of following the dictates of one’s conscience above the blind acceptance of arb itrari ly 

established laws.

This is not to say th at all laws are ar bit ra ry ; nor is it to say th at laws are 

not absolu tely essen tial to the functioning of this, or any, country. If I did not 

believe in laws, I would not have labored to occupy a position in Congress for 

the very purpose of makin g them.

However, it has been proven to us time and again, thro ugh out the histo ry 

of this country, th at laws may be ill-considered and may wreak havoc within 

our society. Such were the law s which perm itted our involvement in a n undeclare d 

war, allowing the United Stat es to demonstr ate to the world th at it was capable 

of slowly and methodically destro ying the entire physical, mental and spir itua l 

resources of the natio n of Vietnam .

If not so tragic, it would be ironic th at thro ugho ut thi s period we selfrighteo usly demanded th at our young citizens unquestioningly follow the letter 

of the law, of the very many laws, which were necessary for the mainte nance 

of a wa r whose very existence was in violation of the Constitution of th is country.

How dar e we self-righteously condemn those young men whose only crime 

was to have the insig ht to look beyond the legali ty of the laws manipulat ing 

them, to the larger illega lity to which those laws had become subservient.

It should be app aren t to us th at a natio n ceases to exis t as a civilized society, 

th at it ceases all crea tive growth at th at very moment in which its citizens 

cease to question the wisdom and the morality of its laws.

Why are we filled with such horror at the thoug ht of the German citizens 

who sat back and watched th e slau ght er of six million people, who unquestioningly marched off to a war which was, to us, so “obviously” immoral, when 

we can, a mere thirt y years late r, commit to prison and to exile those of our 

citizen s who had the courage to question and then refuse to par tici pat e in the 

genocide of wa r?

I am, therefore, not here to plea for mercy for those poor unf ortu nates who 

errored, but to ins ist upon the necessity of esta blish ing in thi s country the 

freedom and the legality of following the dictates of one’s conscience above 

all else.
616

Let us examine for a moment the trad itio nal objections to the grantin g of 

amnesty. Forem ost among these has been the assertion th at “conscriptio n in the 

Armed Forces would become impossible if draf t-age men felt th at they could 

flout the law and simply wa it for a futur e amnesty to exonerate them.” This 

argu men t has always held the most weight, as it equated conscription with 

national security. In Jun e of 1973 conscription came to a legal halt . We therefo re no longer 

need to ref rai n from grantin g amnesty on the basis th at it would weaken the 

resolve of our Armed Forces. Anothe r objection has been th at the grantin g of amnes ty would he a slap 

in the face to those men and to the families of those men who fought and often 

gave the ir lives in Vietnam. To some, this arug men t lingers, despite the testi ­

mony of those men involved, those who did fight and perh aps were wounded, 

hut who realize th at those who did not fight were victims like themselves.

The wa r in Vietnam produced nei ther victory nor honor. It produced only 

victims, in Sout heas t Asia and in America. Those who served in the war, those 

who were wounded and those who died were victims of the war, ju st as those 

who went to jai l or underground or into exile were victimized hy it.

Fu rth er punishmen t and ostracism of dr af t dodgers and dese rter s will not 

stop the process of moral exam ination of this governm ent’s laws. It will never 

assure blind obedience, tha nk God. As long as the re are thin king people, the re 

is going to he resis tanc e to war. The results of the resis tance to the Vietnam 

wa r were th at the ent ire natio n finally coalesced in a united demand th at we 

“get out of Vietnam.” Thi s outcry for peace was largely brou ght about by the 

efforts of the young men who dared to dissent. We should laud those young 

men for their role in the estab lishm ent of peace. Instead we continue to ha rra ss 

them. On December 19, 1973 Lewis Simon, one of the estim ated 50,000 dr af t dodgers 

and dese rters living in exile or underg round, surre ndered to F.B.T. agents. Lewis 

did so to set himse lf up as a tes t case. The Army agrees th at he should be a 

tes t case. In the thre e months th at Simon h as been in the stockade at Fo rt Dix. 

New Jers ay, he has been confined in solitar y twice. Simon’s physical and mental 

har ras sm ent makes a mockery of the high-sounding ideals which are daily 

exnonsed in this country. Eighteen Members of Congress h ave seen fit to co-sponsor a Resolu tion offering 

honorar y U.S. citizen ship to Alexander Solzhenitsyn and Andrei Sakharo v. This 

Resolu tion is a tribut e to two men who have dared to disse nt from their government’s policies. We laud these men for their dedication to conscience, we condemn t he Soviet Union for its continu ed persecu tion of them, and yet we continue 

to tolera te th e identical persecu tion in our own country. The Soviet Union's 

dissenters are heroe s; ours are crimi nals.

In the past two years, democracy in our natio n has been severely threatened. 

We stood on the brink of dictator ship almost with out knowing it. We are now 

in th e process of rooting out those elem ents in the government who perceive th eir 

person al gain to be above the welfare of the country. This process canno t be 

completed unless we acknowledge the innocence of those men who, following the 

dic tate s of th ei r conscience, could not see fit to go to war, even if the government said it was the ri gh t t hing to do.

They could not be convinced th at killin g was moral, if the government sanctioned it. They could not be convinced th at the rape of the Vietnamese c oun tryside was in the best intere sts of the Vietnamese people. And I cann ot be convinced th at they were wrong or th at they are c rimina ls. T yield my full suppo rt 

to leg islation gra ntin g complete and unconditional amnesty.

Mr. K astenmeier. T regret t ha t ou r colleague, the Hon. H ow ard W . 

Rob ison fro m New York, is not here. He was to hav e heen the first 

leadoff witness last week h ad we been on schedule and not pre-em pted 

by a m at ter in the full committee inv olv ing impe achment.

Congressm an Robison cannot he here today hut asked t ha t his st at eme nt be presen ted by his legisla tive ass istant. Mr. Lar ry Sieg el, who 

is here.

W ith ou t obje ction the entire statem ent th at you are offe ring . Mr. 

Sieg el, will he accepted in the record.

Mr. Siegel, T don’t know wh eth er we have tim e rem ain ing fo r you 

to deliver the entire statem ent. Ho you wish to rea d it all?
61 7

TESTIMONY OF LAR RY SIEGEL, LEGIS LATIV E ASSISTANT, ON BE ­

HA LF OF HON. HOWARD W. ROBISON, A RE PR ES EN TA TIVE IN

CONGRESS FROM TH E STATE OF NE W YORK

Mr. Siegel. No; Mr. Chairman, I will just try to give you a summary of it.

As you know from your conversation with Mr. Robison last week, 

he was very disappointed in not being able to attend the hearings. 

He made a series of statements to the Members of the House last 

spring, the primary message of which was tha t the House had to take 

up the question of amnesty and begin discussing it, and he was particularly interested tha t the Members of his own p arty do so.

It was for that reason that he felt that since he could not be here 

today because of travel plans that had been made several weeks in 

advance of today's hearings, that he hoped th at some part of his statement would be read into the record.

Mr. Kastexmeier. You may proceed.

Mr. Siegel. Thank you, Mr. Chairman, I will proceed wdth Congressman Robison’s statement.

Mr. Chairman, I am deeply appreciative of your initiative in calling 

these hearings, because I am convinced th at it is time for the House 

to take up this question of amnesty and, in th at way, to start to “bindup the Nation’s wounds.” Last Spring, I attempted to lay a small 

foundation for an objective discussion of this question by presenting 

to my colleagues a series of statements which summarized a few of the 

major amnesties of the American past. I was well aware, then, tha t 

I was swimming against powerful currents of emotion but, even in 

the short space of time since those statements, things have changed. 

And, it is my sad observation, Mr. Chairman, that things have mainly 

changed for the worst.

The end of American participation in the Indochinese war did not 

bring an end to the widely pervasive attitude tha t fellow citizens are 

to be counted as either “ friends” or “enemies.” W hatever the reasons 

for this sad polarity—and I believe we can find its roots far back in 

the last decade—it has only intensified. The end of U.S. involvement 

in Vietnam seemed unfortunately to have no healing force, as bitterness and recrimination have found new outlets through Watergate, 

endless inflation and now the energy crisis, out of which combination 

of factors Americans seem no closer than before to coming to peace 

with one another.

If we are ever going to make any headway in replenishing the national spirit, it will have to begin with the act of putting away at 

least some part of the recent legacy of dogmatic confrontation. There 

are persistent American qualities which can fortify us in building fo r 

the future, and our respected former colleague, Mel Laird, has recently 

been most persuasive in answering critics of his own public remarks 

on amnesty by evoking the pride we all share in the mercy and understanding which characterize the American system of justice.

Mr. Chairman, on behalf of Congressman Robison, may I request 

at this point in his testimony tha t Mr. L aird ’s letter to Commander 

Ray R. Soden of the Veterans of Foreign Wars be placed in the record.

Mr. Kastexmeier. Normally I would say yes if it is essential to the 

statement. The reason I hesitated is that we have already received that 

31-658 0 —74------ 41
618

le tte r fo r the reco rd and so we will eit he r incl ude it at th is tim e or 

make referenc e to it as it appears elsewhere in the record.

Mr. Siegel. Very good. Le t me continu e Con gressm an Rob ison’s 

statem ent.

Mr. Ch airma n, if th e House chooses to fu rthe r postpone a de bate on 

amnesty, and to tak e the p ath of least resistance, ra th er tha n the m ore 

dem and ing course of engagin g in what will certa inly be a difficult 

debate over a poten tia lly “risk y” issue, it does so at th e risk of pe rpe tuating certa in continuing an imo sities and , perha ps, w atc hin g them 

tra ns form themselves into new forms of un ha pp y, and even da ngerous, confr ontation . We need only look at the histo ry of the postCivil W ar Rec ons truc tion E ra to un derst and how na tio nal energies 

can be squan dered on r ecr imina tion, so th at th ey yie ld o nly hu ma n and 

economic suffering.

The rem ain der of the sta tem ent has to do with Mr. Rob ison ’s pr oposal, which is H .R. 13001, for a c onditional amn esty , which he states 

should be based upon the agreem ent between the indiv idu al who seeks 

amnesty and the a utho rit y which suggests necessary qua lific ations for 

receiving amnesty.

I wou ld like to conclude wi th these final rem ark s tak en a gain from 

Mr. Rob ison’s own words.

Fina lly , Mr. Ch air ma n, let me tou ch on the deeper question of the 

ultim ate au thority for gr an ting amn esty , and the source from which 

it deriv es. Wh en spe aking to th is po int d ur ing m y series of state ments 

on amnesty, I attem pte d to outlin e the debate which has in this rega rd progressed, alm ost from the earlie st days of t he Rep ublic, over 

the respective pre rog atives of the legisla tive and executive branches . 

Th e precedents which come to us from pr ior C ongression al debate and 

court decisions hav e ne ver rea lly clarified the distinc tio n between “par ­

do n” an d “amnesty,” no r has an histor ical consensus been reached 

which designates eit he r the executive or leg islative branch es as the 

prop er au thor ity fo r the gra nt of am nesty.

Yet, to my min d, the mood of our tim e dic tates th at the gr an t of 

amnesty must not, itse lf, be anoth er po int for divisiven ess, as mi gh t 

culmina te from the attempt of a Congress to foist amnesty legisla tion 

upo n an u nw illi ng Pres ide nt.

Ra ther, I have draw n my bill in a way which nece ssarily involves 

the Pr esiden t, and which invokes the pardon ing pow er whi ch clea rly 

belongs to the Pr esiden t un der art icle II, section I I of the Co nstitution . I f amnesty is to work in the way I have suggested, and if it is 

to mee t toda y’s need for a beg inn ing a t reco ncilation, it mu st involve 

the whole body of the Fe deral Gov ernmen t. P u t an oth er way, the 

gestu re of a mne sty must proce ed from a u nity of int ention and coopera tio n which can only fu rther contribu te to the con ciliatio n which 

amnesty is inten ded to create.

Tha nk you Mr. Ch air ma n fo r allo win g Mr. Rob ison ’s sta tem ent to 

be read before the comm ittee.

[The le tte r dated Ja nuar y 28,1974, from Melvin R. L ai rd to Com dr. 

Rav R. Soden, attached to Mr. Rob ison’s sta tem ent was introd uce d 

in th e re cor d of Ma rch 11, and a pp ears at p. 339.]
619

[The statement of the Hon. Howard W. Robison follows:]

Testimony of Howard W. Robison

Mr. Chairm an, I am deeply appr eciative of your init iati ve in calling these 

hearing s, because I am convinced th at it is time for the House to take up this 

question of amnesty and, in th at way, to st ar t to “bind-up the N ation ’s wounds.” 

Las t spring, I attem pted to lay a small foundatio n for an objective discussion 

of this question by presenting to my colleagues a serie s of stat eme nts which 

summarized a few of the majo r amnes ties of the American past. I was well aw are, 

then, th at I was swimming aga inst powerful cur ren ts of emotion but, even in the 

short space of time since those state men ts, thing s have changed. And, it is my 

sad observation, Mr. Chairm an, th at things have mainly changed for the worst.

The end of American p arti cipa tion in t he Indochinese war did not bring an end 

to the widely pervasive att itu de th at fellow citizens are to be counted as eith er 

“friends” or “enemies.” Whate ver the reasons for thi s sad pola rity—and I believe we can find its roots fa r back in the las t decade—it has only intensified. 

The end of U.S. involve ment in Vietnam seemed unf ortu nate ly to have no he aling 

force, as bitterness an d recrimina tion have found new outle ts throu gh Wate rgate, 

endless inflation and now t he energy crisis, out of which combin ation of facto rs 

and other fact ors Americans seem no c loser than before to coming t o peace with 

one another.

If we are ever going to make any headwa y in replenishing the national spirit, 

it will have to begin with the act of puttin g away a t leas t some pa rt of the 

recent legacy of dogmatic confrontat ion. There are pers istent American quali ties 

which can fort ify us in building for the future , and our respected former colleague, Mel Laird , has recently been most persuasive in answ ering c ritic s of his 

own public remarks on amnesty by evoking the pride we a ll sha re in the mercy 

and und erstanding which characterize the American system of justic e. (Mr. 

Chairman, may I here reque st th at a copy of Mr. Laird ’s let ter to Commander 

Raj-

 R. Soden of the Vetera ns of Foreign Wars be placed in the record at this 

poin t.)

Mr. Chairm an, if the House chooses to furth er postpone a debate on amnesty, 

and to take the path of leas t resistance, rather tha n the more deman ding course 

of engaging in what will cert ainlj ’ be a difficult debate ov er a pote ntially “risk y” 

issue, it does so at the risk of perp etua ting cer tain contin uing animosities and, 

perhaps, watching them tran sform themselve s into new forms of unhappy, and 

even dangerous confrontation. We need only look a t the historj’ of the post-Civil 

War Reconstruction Era to understand how national energies can be squandered 

on recrim ination, so th at they yield only human and economic suffering.

However, there are o ther chap ters of U.S. hist ory to consult, and many of them 

would instruct us to believe th at the re is a dura ble bond which links us together; 

as Americans, and which explains why t he United Sta tes has remain ed a united 

natio n in the midst of past and wide social, cul tur al and politica l diver sity. This 

is a fac t in our nationa l histo ry that I sought to invoke when intro ducing legislation to estab lish a National Amnesty Board, empowered to review the cases of 

those young men who left the country, or otherwise evaded military induction, 

during the Indochinese War.

Whatever its form, it is app aren t to me th at the process of any new amnes ty 

will be as imp orta nt as the re sult. The conduct of the amnesty arra nge men t m ust 

dem onstrate to all observers that, it embodies long-held concepts of fair ness and 

justic e, so that the process of amnesty itse lf is a means to the kind of reconcilia tion we should seek.

Fur the r, I feel th at the conditions of anj- amnesty—and in this regard one 

could c har acteriz e II.R. 13001, t he proposal I have in troduced, as a “conditiona l” 

amnesty—should be b ased upon an agre ement between the individual who seeks

amnesty , and the aut hority which sugge sts necessary qualifications for receiving

amnesty .

In other words, the amnes ty procedure should conform to the abiding pri nciple which ough t to l)e the goal of any amnesty arrangem ent. It should not be 

Intended to provid e an are na for settlin g conflicts of p olitical or moral outlook— 

ra th er it should attem pt to rebuild cer tain basic h uman ties.
620

Finally, I have concluded th at a post-Vietnam amnes ty should build, as carefully as possible, upon the legacy of the past amnesties which have occurred in 

this country. In my stud y of these precedents, some of which I reviewed in my 

stat eme nts to the House las t Spring, I was par ticu larl y impressed by the care 

and conscientiousness which went in to the implementation of Pre side nt Tru man ’s 

post-World War I I amnesty.

I am happy to note th at Mr. J ame s O’Neil, who served on President Truman ’s 

Amnesty Board, will appe ar here tomorrow. He will have much to say, I expect, 

about t he activ ities of th e T ruman Board. Suffice i t to say, f or my purposes today, 

th at I have drawn heavily from the example set by th at Board in making my 

own proposal. Without going into too many deta ils of my bill, it is worth emphasizing th at my proposal speaks in terms of an amnesty agreement and, fu rther, th at the process of th e amnes ty I envision would involve consu ltatio n betwee n the individual appli cant and a new Natio nal Amnesty Board over the 

terms of the amnesty, itself.

I have suggested in H.R. 13001, once the National Amnesty Board has reviewed 

the case of an applicant, and has determined th at the re is room for an amnesty 

agreeme nt, th at the Board propose, as pa rt of an amnesty agreem ent, eith er a 

two-yea r period of mil itar y service, or a two-year period of alt ern ate civilia n 

service. Such a proposal by the Board would, of course, be influenced by the 

na tur e of the applica nt’s justific ation for evading military reg istr ation or induction, and by such fact ors as person al disability and family responsibilities.

Fina lly, Mr. Chairm an, let me touch on the deeper questio n of the ulti ma te 

aut hor ity for gran ting amnesty, and the source from which it derives. When 

speaking t o thi s point d urin g my series of state men ts on am nesty, I attem pted to 

outline the debate which has in thi s regard progressed, almost from the earlies t 

days of the Republic, over the respective prerogativ es of the Legislation and 

Execu tive Branches. The preced ents which come to us from prio r Congressional 

debate and cou rt decisions have never really clarified the disti nctio n between 

“pardo n” and “amnes ty,” nor lias an histo rical consensus been reached which 

designates either the Execu tive or Legislative branches as the prope r author ity 

for t he g ran t of amnesty.

Yet, t o my mind, the mood of ou r time dicta tes th at th e gra nt of amnesty m ust 

not, itself, be ano ther point for divisiveness, as might culm inat e from the at ­

tempt of a Congress to foist amnesty legislat ion upon an unwi lling President.

Rather, I have draw n my bill in a way which necessarily involves the Pre sident, and which invokes the p ardo ning power which clear ly belongs to the President und er Article II, Section IT of the Constituti on. If amnesty is to work in 

the way I have suggested, and if it is to meet tod ay’s need for a beginning at 

reconciliation, it must involve the whole body of the Fed eral Government. Pu t 

ano the r way, the gestur e of amnesty must proceed from a unity of intent ion and 

cooperation which can only furth er co ntri bute to the concilia tion which amnesty 

is intende d t o cr eate.

Tha nk you Mr. C hairm an.. . .

Mr. K astenmeier. W e than k you fo r presentin g his statem ent and 

it will of course he p lace d in the reco rd in its entirety.

Th is concludes 3 day s of hearings on 10 measure s rel ati ng to the 

subject of amn esty. T wish to than k the many people who have coopera ted in ma kin g these h earin gs wh at T believe to be an enlighten ing 

experience—pa rti cu larly fo r those nine of us on the subcommittee.

T desire to th an k all of my colleagues on the subcommittee a nd p artic ularly the gen tlem an from Massachusetts. Mr. Drin an , and the 

gen tleman from New York. Mr. Sm ith, who have attended nearl y 

every minute of wh at has been very long and involve d heari ngs on a 

very difficult and em otional subject.

Rat he r than an end, this is a sort of a begin nin g—a relook at an 

old question. I hope th at these hearings will serve to pu t forw ard in 

due course, if not now, con stru ctiv e, affirmative proposals. And th at 

we can look forw ard in the futur e, in the very ne ar f utur e I h ope, to 

pa rticip atin g in the reconc iling of differences and the br ingi ng back 

of the A mericans who f or one reason or an othe r are pres ently alien ated 

from th eir c ountry.
621

If we can serve them con structive ly in this cause, then I th in k we 

will have served the Congress an d our Nation as well.

Th is the ref ore concludes the heari ng s and the subcom mittee sta nds 

adj ourne d.

[W her eup on, at 2 :15 p.m., the subcom mittee recessed sub ject t o the 

call of th e Ch air.]

[Th e following ma ter ial s were received for the reco rd:]

The Only True Honor

(By Louise B. Ransom)

It is not possible to deal with the subject of amnesty for 500,000 young Americans w ithout first dealing w ith the subject of th e Vietnam War.

The wa r and I have endured a lasting relationship since my oldest son, Mike, 

was killed near My Lai five years ago this spring. He arrived at his first assig nment—a new 2nd Lieu tenant inf antry platoon leader—on the very day of the 

massacre, March 16. 1968. After t ha t unspeakable atroc ity committed by ou r own 

American troops, who could blame the embittered South Vietnamese farmer who 

set the mine th at killed Mike such a few weeks late r?

Had he been alive in November, 1968, he would have rejoiced th at Lyndon 

Johnson had l>een dejxised. He once wro te: “I did hear Johnson’s speech of deescalation and noncandidacy and thought it the best of his career. It created in 

me a gre at sense of hope that this obscenity over here would end shortly.” How he 

would have welcomed the new Presiden t with his shining promises to end the 

war and bring us together.

But where are we now, five long years lat er? We have a cease-fire and “peace 

with honor.” but we have not ceased firing, people a re still dying, and honor is 

nowhere to be found.

We can look back in horror and shame th at the most advanced technological 

natio n in the world was virtually ann ihilatin g—in the name of freedom—several 

primitive ag ricu ltural countries to preserve the thrones of such leaders as Nguyen 

Van Thieu and Lon Nol. The ultimate anguish for me is that my own son lost 

his life in the perpetration of such shame.

And th e shame grows as the perfidy of our leaders is revealed through the deceptions detailed in the Pentagon Papers and the disillusioning reality of W atergate. This painful knowledge clarifies for me the action of those men who would 

not perm it the ir bodies to be used, as Mike’s was, to continue the madness. Their 

“crime” ? They refused to obey leaders whom they could neither believe nor 

trus t.

I share bitte r tears with all of those who are victims of this war, particu larly 

the 57,000 mothers whose sons will never return. We mothers weep also for the 

thousands of our sons who are maimed for life, wounded in body and spirit. There 

are, of course, not enough tears in the whole world for the moth ers in Indochina. Creating half a million more wa r victims because of intransigence to 

amnesty is unbearable to contemplate.

The deepest trage dy for me, too deep for tears, comes from desp air over what 

we have become as a nation. What are ou r true values? Wh at does it mean when 

our heroes are professional warriors, when the bulk of our treasu re is spent for 

instrum ents of death rather th an to improve the quality of life, when the leaders 

we choose to govern us value power above people?

How are we paren ts, conscious of our American heritage—founded in dissent 

and dedicated to freedom—to raise our children to be proud of their country in 

such a climate? Have we not placed in jeopardy the very birthr igh t of the ir 

whole generation to life, liberty, and the pursu it of happiness?

How can I help my five remaining sons to find some positive meaning in the 

death of the ir brother?

My husband and I have long faced the difficult tru th th at there was no gain 

for this country from our son’s death . Hus life was wasted by his own government and nothing we do can alter tha t.

But the President, in an effort to find value where there is none, has sa id : 

“Let us not dishonor those who served their country by granting amnesty to 

those who deserted America.” In other words, if amnesty is not granted, the 

death becomes honorable. I must disagree.

The only way we can dishonor those who died is to lear n nothing from them— 

to repeat the past and continue our present course of action.
622

We are a divided, corrupted, and bloodstained nation. A universal and unconditio nal amnesty for men who refused to fight in the war—the ghastly symbol 

of all th at is wrong—might just he th e very element that could help to heal us.

At the very least, it could reconcile parents and sons. It could also restore 

our pride in ourselves as a compassionate people. It could revive our vision of 

devotion to social justice and renew our self-confidence by recognizing freedom 

of conscience for all.

Let us, therefore, join hands—rich and poor, black and white, parents and 

children—united in our faith in the healing power of amnesty, and determined 

to achieve it.

If somehow all the sorrow, and all the tears, and the killing can help us to 

become a better people, perhaps then, and only then, can we say th at these 

deaths—these sacrifices—have been redeemed and will have had a positive meaning for us as Americans—the only true honor.

A Case for Amnesty

(By the Amnesty Committee of the Center for the Pu rsu it of Peace)

PART I : BACKGROUND INF ORMA TIO N

(A) Definition

The Greek word, “amnestia” meant to forget or intentionally overlook. Today, 

the legal term amnesty is defined as a general dete rmin ation that whole classes 

of offenses and offenders will not he prosecuted. The Supreme Court, in two 

separate cases, defined amnesty as the abolition, oblivion or forgetfulness of an 

offense.

(B) Who needs itT

It is difficult to estimate the number of men in need of amnesty. It is agreed, 

how’ever, th at amnesty would benefit four gro ups: resisters, those incarcerated, 

dese rters and the discharged.

Rcsister s are those who have violated the selective service law’ in some way. 

Opposition to w’ar or the Indochina wa r specifically are the main reasons for 

resistance. Some individuals might also refuse induction because they do not 

recognize the authority of the State to draft them. This category does not 

include the men w’ho have gone to prison or any who have received a legal 

conscientious objector status.

Those incarcerated are persons who refused a CO sta tus or did not receive 

it and chose to serve priso n sentences rather than flee the country. At present, 

there are ab out 300 such men in federal prisons, while a nother 6,000 face possible 

prosecution. About ten thousand men have been convicted for evasion since 1047.

A deserter is one who is absent for more than 30 days without military 

auth orization. In 1968, the Pentagon reported more tha n 53,000 deserters. During the first ten months of fiscal year 1971, the Army alone reported 68,449 

deserters. The Pentagon has reported that 354,427 men deserted from the armed 

forces over the four yea r period from 1967 to 1971. Some of these individuals, 

from the ir experience in the military, and others specifically in Vietnam, increased their opposition to the wa r to a point where they finally left. Admittedly, 

some men deserted out of personal fear , while a number of Blacks and other 

minorities left for racial reasons. Today, these men are in Canada. Sweden 

or remain underground in the United States.

The final group considered for amnesty are those who receive a less than 

honorable discharge, especially an “undesirable” discharge. The armed services 

rid themselves of men they believe to be undesirable. Since 1962, approximately 

300,000 men have received less tha n honorable discharges. This category includes 

not only men who are objecting to war. hut also men who have committed other 

criminal acts. Such a discharge effects negatively civilian job opportunities.

As was said above, it is difficult to estimate the number of men in need of 

amnesty. Cana dian officials claim there are 50,000 to 70,000 American draft 

resiste rs and deserters in Canada. Others place the figure higher. John M. 

Swomley, Jr., Ph. D., a member of th e National Committee of Clergy and Laity 

Concerned and of the National Board of the American Civil Liberties Union 

sta tes: “More than 100,000 young Americans are eit her in exile or have otherwise refused to comply with d raft laws.
623

(C ) History of amnesty in th e United S tate s

(The following outlines the histo ry of American amnesty as draw n up by 

Dr. H enry Steele Commager of Amhe rst College)

Those who supported the Bri tish Crown dur ing the revolution ary war were 

deal t with harshly. Durin g and after the war, 80,000 fled to Canada and only a 

few returned . Desertion was wide-s pread in Wash ington ’s army but after the 

war no attem pt was made to punish deserters.

Pre side nt Washin gton gran ted amnesty to par tici pan ts in the Wiskey Rebellion saying, “I shall alway s think it is my sacred duty to exercise with firmness 

and energy the constitutiona l power with which I am vested. Yet my personal 

feeling is to mingle in the operations of the govern ment every degree of moderation and te nderness where justic e, dignity a nd safety i>ermit.”

In 1807, Thomas Jefferson, and later Abraham Lincoln during the Civil War, 

pardoned all dese rters on condition th at they return to the military. In 1830, 

Pre side nt Jackson pardoned all des erte rs on condition th at they never again 

attem pt to join the militar y.

At the end of the Civil War no legal action was take n again st the d eser ters or 

dr aft evad ers in the North. After the war, Lincoln a nd Pres iden t Andrew Johnson 

granted tota l amnesty to citizens and soldie rs of th e Confe derate army who were 

legally guilty of treas on for havi ng take n up arm s agai nst the governm ent of the 

United States.

There was no amnesty after W.W. I. Many wa r protester s, including Eugene 

Debs, remained in jai l after the wa r for the dur atio n of President Wilson’s 

ten years. Pre side nt Harding freed Debs and other s. Late r, Calvin Coolidge 

release d mo st of th ose remain ing in prison.

Afte r WW II, a three man board was established by Pres iden t Trum an to 

review 15,000 cases of dr af t evad ers and violators of mil itary laws. About 10% 

were given amnesty.

PART n : A CASE FOR AMNE STY

(A ) Moral directives of the churches

With in the past few years, many religiou s bodies and organizations have 

spoken out in favor of grantin g amnesty . Excerpts of some of the ir state men ts 

follow :

United Church of Christ: “In the intere sts of reconciliation and binding up of 

w’ounds, for the sake of our freedom s and to allow our high respec t for conscience, in the best tra dition s of a stron g and secure democracy, in the name of 

Chr istian love, we urge the Pre side nt of the U.S. to gran t, at the e arlies t possible 

oppor tunity, amnesty and pardo n for those who for action s witn essin g to the ir 

beliefs have been incar cerated, deprived of the ir righ ts of citizen ship, or led by 

the ir conscience into exile dur ing the course of the nation’s gre at agony in the 

Vietnam w ar”. (Sev enth General Synod, Boston, June, 1 960 )

United Pre sby teri an Church in the U.S.A.: . asks the Congress, the Pre sident, and o ther public officials, and our fellow citize ns for a recons ideration of the 

plig ht of those young men who, in good conscience, have found th at they canno t 

par ticipate in a imr ticu lar wa r but have no redres s or relie f under existing laws. 

We urge retro acti ve recognition of the ir claims and reduc tion of punitive sentences, together with app rop riat e amnesty as soon and as syste matically as 

possible.” (18 1st G eneral Assembly, 196 9)

“We specifically urge Pre side ntia l amnesty for those who are imprisoned or 

exp atriated for conscientous dissent to thi s war.” (Re por t of the Standing Committee on Church and Society to the 183rd G eneral Assembly, 1971)

U.S. Catholic Conference: “We urge civil officials, in revising the law, to conside r gra nting amnesty to those who h ave been imprisoned as selective conscientous objectors, and giving those who have emig rated an oppo rtunity to ret urn 

to the coun try to show responsibility for tlieir conduct and to be ready to serve 

in other ways to show t ha t they are sincere objecto rs”. (Sta tem ent , Oct. 21 ,197 1)

American Baptist Convention: “Therefore, cons isten t with our concept of freedom and conscience, and recognizing that man of our ance stors came to this 

country to avoid conscription in Europe, we c all upon the Pre sident of the U.S. 

to gra nt amnesty . . .” (Res olution on Conscience, Freedo m and Responsibility, 

1969. )

Luthe ran .Council in the U.S.A.: “We urge loving concern also for thos e who 

refused to partic ipa te for reasons of conscience, including thos e who chose to 

face prosecution or to leave our land and seek refug e in another . We exp ress our 

approval of new init iative from both government and pri vate agencies to resolve
624

the question of amnesty and to provide services, in order to fac ilit ate re-entry 

into the l ife of the nati on.” (Statement, Febr. 29,19 72 )

Other instan ces which might he cited : The Ecumenical Witness, K.C., Missouri, 

Jan uary, 1972: the Board of Direc tors of the Natl. Council of Churche s meeting 

in Dallas, Texas, December, 1972 and Rabbi Abrah am Heschel’s st ateme nt on the 

"Theological, Biblical and Ethi cal Consid eration s of Amnesty” , presented at the 

Inte rreligio us Conference on Amnesty, Washington, D.C., March, 1972.

(B ) Pres erve freedom to dissent

Our democratic system of government in the U.S. is based on two fundamen tal 

principles: that, men make government and th at there ar e limi ts to the aut hor ity 

of government. It is therefor e a system of limited government based on majo rity 

rule, not on d icta tors hip of the majo rity. Our Constitution is caref ul to prescribe 

a limit ed governm ent in orde r th at the sacredness of the indi vidu al’s right s, 

rooted in our liberal Western philosophy of na tur al righ ts and set fort h in the 

Bill of Righ ts, may be safeg uarded. The basic problem inh erent in democracy 

lies in the fac t th at thes e two elements of majority rule and the indiv idua ls’ 

rights may often clash. The resu lt is dissent.

Since a democratic sta te is dependent on the willingness of its c itizens to commit themselv es to its politica l values and to act accordingly, a democratic sta te 

mus t necessarily be based on a pluralism wher e dissentin g opinions are as respected as the ma jor ity’s decisions. In fact, it is thi s disen t, both with in and 

with out the spher e of recognized par ty competition, th at most contributes to the 

quality of democratic governance. Therefore, broa d guarant ees of protection, 

which also extend to political disse nt for its free expressio n, ar e wh at makes 

government functional and responsive. A democracy’s viability rests upon its 

ability to effect the fine balance between thi s diss ent and majori ty opinion. In 

practice, however, political diss ent seems to he more vulne rable to suppression 

because many thin k it Constitute s a gre ate r thr eat to governmental s tability t han 

the exerc ise of othe r freedoms. A cruci al question for U.S. democracy today is 

whe ther or -not free expression of political dissent is to be perm itted or suppressed.

Political dissen t from the Selective Service Lai r is grounded in the inviolability and dignity in which the ind ivid ual’s conscience s held in our democracy. 

Our liberal-demo cratic theory of governing centers arou nd the protection of the 

individual as an autonomous moral agent. While some subord ination to governmental author ity is necessa ry in our society, when this authority overru les the 

citiz en’s conscience, then it is also overste pipng the cons titution al res tra int s so 

esse ntial to our democracy. Therefore, not only is the individu al demeaned, but 

the democ ratic sta te likewise suffers whenever conscience is coerced, whether 

the coercion is successful or not. Genuine dem oratic pluralism is betra yed wrhen 

diss ent is punish ed and moral autonomy is s ubordinated to the collective will. In 

his Essa ys on Civil Disobedience, Thoreau expresses these princip les we ll:

“A government in which the majority rules in all cases canno t be based on 

justice, even as far as men u nde rsta nd i t . . . Must the citizen even for a moment, 

or in the l east degree, resign his conscience to the legislato r? Why h as every man 

a conscience, then ? I think th at we should be men first, and subje cts afte rward . 

It is not. desi rable to cul tiva te a respect for the law, so much as for the right. 

Ther e will never be a really free and enlightened Sta te unti l the Sta te comes to 

recognize the individu al as a rig ht and indepe ndent power, from which all its 

own power and aut hority ar e derived, a nd t reats him accordingly.”

The test of how democratic any government is depends upon the number of 

politic al p rison ers it puts or keeps behind bars.

Unfortunately, thousands’ of young men who conscientiously objected to militar y service because of moral reser vatio ns duri ng the Vietnam conflict have been 

forced into positions of civil disobedience. When a significa nt number of citizens 

disag ree with a statut e intensely enough to iden tify themselves publicly as lawbreakers. with the attendant risks of arr est and punish ment, it reveals th at 

democ ratic procedures have broken down or are .not av ail ab le: it is a demand 

for responsiveness. When a society is d riven to prosecute thou sands of disse nters 

who have been alien ated to the point of civil disobedience, then th at society is 

in danger.

( C) Prison not effective fo r wa r resi ster s

Selective Service viola tors are subject to felony convictions and may receive 

maximum sentences of five y ears in a federal priso n or a $10,000 fine or both.

Dr. Willard Gaylin, a New York psy chia trist, has conducted a study of Vietnam wa r resiste rs in prison and has publishe d it in his book. In the Service of
625

Their Country, (197 0) . He examines these indiv idua ls and the prisons which 

conta in them. On the type of indi vidual serving a Selective Service violation 

term, Dr. Gaylin w ri te s:

“Some of the most truc ulen t, exha ustin g, and thr eateni ng priso ners were the 

political dr af t resi ster s of World Wa r II. This turned out not to be the case 

with this group. The different na tur e of the conflict gener ated a different populatio n of resis ter, different sociologically and psychologically . . . The cur ren t 

resi sters are not completely, not even prepo nderantly , political protester s. They 

are a heterogen eous group which . . . is composed prim arily of wh at would be 

considered moral or religious o bjectors . . . They are co ntem plative and tolera nt 

people who are in divid ual ra th er than group oriente d . . .”

Gaylin concludes th at most of them come from a personal sense of moral 

outra ge with the war and with a stro ng conscience, which would not permit them 

to partic ipa te in it or to avoid the confro ntation.

Dr. Gaylin also discusses the question of whether prisons have faciliti es to 

deal w ith wa r re siste rs. He poin ts o u t:

“In the ir case no pretense at reh abi lita tion is offered, for the most pa rt they 

don’t requ ire it, and no opportun ities for education are available, because of 

the ir high level. They are there purely to be punished . . . It is evide nt in 

such things as their exclusion from the work release progra m. When I first 

asked one of the correction al officers at the prison why COs were not perm itted 

on work release, I was told it was because work releas e was for the purpose 

of rehabilitation to the norma l community, and these were people who did not 

need reh abi lita tion.”

Selective Service viola tors have received prej udicial tre atm ent and have been 

refused parole. Dr. Gaylin comments :

“At the time I began this research, all Jeho vah ’s Witnesses were routin ely 

gran ted parole at fifteen to seventeen months. This was cert ainly reason able and 

unde rstandable since they adequ ately satisfie d the conditions for parole. Wh at 

was not understand able was why the other Selective Service viola tors were 

routin ely denied parole .”

Imprisonm ent as a means of puni shment can produce har mful effects. Not 

only may a person be hard ened by the prison experience and find difficulty 

adj usting to the community once released , but the community may actu ally 

suffer. The cost of mai ntai ning these resiste rs in prison, e.g., food, shelte r, 

medical atte ntio n, clothing, etc., mus t be borne by society.

The image of the United States suffers throu gh the imprisonm ent of these 

ind ivi du als :

“Once th e country to which people turned for refuge and exile and hope, ours 

is now the land from which men flee for refuge. Once a nation th at held out 

the hope of fresh star ts for d issid ents abroa d, we now imprison our own political 

objectors.” (Tho mas Hayes, American Des erte rs in Sweden, 197 1)

Anothe r question ye t to be answ ered is w heth er jai ling is an effective deter rent . 

The Military Law Review points o u t:

“When faced with the choice of obeying mil itar y law and compromising 

strong ly held principle—or—obeying his conscience and thereby violating militar y law, the w riter’s experience indicate s t ha t the sincere objecto r will generally 

tak e the la tte r course of action. The th re at of puni shment by court ma rtia l is 

no det err ent .” (Dept. of the Army Pam phle t, Mil. Law Rev. Vol. 47, Jan. , 1970 )

CONCLUSION

Tn light of the above, the Amnesty Committe e o f the Cente r for the Pu rsu it of 

Peace believes th at there is a stron g case for the grantin g of amnesty . Amnesty 

should be seriously considered by the Congress and by the Admi nistration .

In gra ntin g amnesty we would be following clea r moral guidance orig inat ing 

in our own religious bodies. We would prese rve the vita l tra dition of tolerating 

dissent. We would admit the futilit y of punis hing po litical dissent by pr osecution 

and incarcerat ion.

Before one can discuss various “degrees” of amnesty , the American people 

must decide whether they do indeed wish to heal the wounds caused by the war. 

If they wish to “write off” and forget the ir fellow citizen s who were alienate d 

by the war. they can hard ly expect Congress or the Adm inistratio n to reverse 

the ir curre nt “do-nothing” stance. When the people show a desire to alleviat e the 

pligh t of all who are suffering hardsh ip because of the war, then the necessa ry 

machinery will be set up by the Congress and th e A dmin istration.
626

It is hoped that this pamphlet will help more Nebraskan s to see a case for 

amnesty and that they will do their pa rt to “make it happen” for their fellow 

Americans.

Clergy and Lait y Concerned

My name is Ronald Freund. I am the Midwest Regional Coordinator for Clergy 

and Laity Concerned (CALC), the interfaith peace organization.

In my work, I have spoken with and counselled many people directly affected 

by the War in Indochina. They have included veterans with less-than-honorable 

discharges, men in exile in Canada, parents of exiles and parents who lost their 

sons, POWs, and people who committed civilian acts of resistance to the War, 

a category in which I myself fall. All of these people are victims of the War in 

Indochina. All Americans will suffer with them until there is a just and humane 

resolution of their problems. A universal and unconditional amnesty would be 

such a resolution.

The issue of Amnesty is one of the most burning questions facing the American 

people. We are living in an era following the longest direct military involvement 

of our nation in history—the War in Indochina. We are also living in an era 

where the highest officials of our government are accused of committing serious 

crimes against society. It is an era where Americans are confused about the 

standa rds of justice and the requirements of conscience.

We pray that from this confusion will emerge a nation re-dedicated to a tra dition which places the values of “higher moral law” and reconcilation of a divided 

people above those of punishment and vindictiveness. It is in this spirit that we 

ask the following:

“For all those whose opposition to the War in Indochina brought them into 

conflict with the laws of the Government, we ask amnesty. Let all those who are 

convicted be set free and all those facing prosecution be immunized from furth er 

jeopardy and all records wiped clean. For all deserters, dr aft violators, and those 

accused of civilian acts of resistance, let there be a new beginning. For the half 

million veterans who are now being punished for life by other-than-honorable 

discharges, let the ir records be corrected to make them eligible for benefits tha t 

would facilitate a more hopeful future.

Religious tradition teaches th at ‘you should not hate your brother in your 

heart but you shall reason with your neighbor, lest you bear sin because of him. 

You shall not take vengeance aga inst the sons of your own people . . .’

We cannot resto re to life our dead soldiers, nor undo the wounds of others. 

We cannot undo the devastation of the land and people of Indochina. We can 

repe nt and work for post-war healing. An unconditional and universal amnesty 

would free us for a responsible and serious effort to rebuild our divided people.”

Tha nk you.

R onald F reund, 

Midwest Regional Coordinator.

Berkel ey, Cal if., February ZZ, 1974-

Hon. Robert W. Kas tenm eie r,

House Committee on the Judiciary,

Rayburn House Office Building, Washington, D.C.

Sir : I am writing to you to express my views on amnesty. I retu rned to this 

country on the 15tli of March 1973 after spending five y ears and two months 

as a prisoner of wa r in Viet Nam. I went to South Viet Nam in Jan . of 1967 

as a crewchief for Army UH-1 helicopters. In November of th at same year I 

extended my to ur of duty but on Feb. the 8th 1968 my helicopter was shot down 

and I became a prisoner.

My experience in South Viet Nam both before and after capture and my 

experience in North Viet Nam has convinced me that American involvement in 

th at country was against the best inte rests of the Vietnamese as well as the 

American people. Our involvement in the inte rnal affairs of th at country has 

caused years of suffering to its people and even today our tax money goes to 

support a dictatorship of the worst order, headed by Nguyen Van Thieu who 

imprisons thousands of his own i>eople only because they do not share his views 

or will not submit to his tyra nny.

When I returned to this country less than a year ago I heard our President 

say th at to gra nt amnesty to those who resisted the war would be letting down
627

the boys who died or were wounded in the war. I thin k however, th at we must 

realize th at those people in this country who refuse d to go an d kill in Viet Nam 

canno t and should not be held responsible for any deaths in Indochina. These 

resistor s should not be used as scape goats for bad foreign policy p lanning or for 

the fail ure of the Nixon Admi nistration . To try and shift the respo nsibility for 

American deaths in Viet Nam onto people who refuse d to kill is in my view an 

insu lt to anyon e’s intellig ence who und erst and s the nat ure of the Vietnam war.

As a n American service man I gave six yea rs of my life for our involvement in 

Indochina and it took those years to understand the people of th at country and 

the war. And so I can have nothi ng but adm irat ion and respect for those people 

who resisted that war. I thin k it should also be remembered th at tru e loyalty 

to one’s coun try does not always mean going unques tionably overseas to kill or 

die for something that was never made clea r to the people o f t ha t country.

It is my sincere hoi>e th at these people will be given a univ ersal and unconditio nal amnesty, not as a pardon for the ir acts but really because they have 

committed no crime.

Sincerely,

Robert P. Chenoweth.

The Diocese op New York, 

op the Protestant Episcopal Church,

New York, N.Y., Fe bru ary 28,1 97

Hon. Robert W. Kastenmeier,

House Committee on the Ju diciary ,

Ray burn House Office Building, Washington, D.C.

Dear Representative Kastenm eier: Since I shall be unable to appe ar at the 

Committee’s hearings on amnesty scheduled for March 7th and 8tli, I ask th at 

the enclosed stat eme nt be made p art of the w ritt en record.

Sincerely,

Paul Moore, Jr., 

Bishop of New York.

Enclosure.

Statement on Amnesty Prepared by the Rt. Rev. Paul Moore, J r., Bishop

of New York, Episcopal Church

I l>elieve in complete amnesty for all those who h ave suffered repr isals because 

of a conscientious refusal to par ticipate in the Vietnam war. I supp ort th at a mnesty for draft resisters, deserters, exiles, and those with less tha n honorab le 

discharges.

My reasons are simple. The w ar is over. Let us n ot only forgive and reh abil itate 

the enemy, as the President asked when the war ended. Let us also forgive and 

reclaim our soils and ou r bro thers and our neighbors.

These men are, for the most par t, sensitive and deeply conscientious. We need 

them at home, among us, to help rebuild an America torn and unhap py over 

fresh crises.

Hanging over t he amnes ty debate is the gri m fact t ha t so many Americans died 

in Vietnam. I can understand the anguish of those who lost a son or a bro ther 

or a frie nd in an unpop ular war, but I canno t help feeling th at the sp iri t of forgiveness will heal the anguish fa r l»et.ter th an a lingering spirit of ange r aga inst 

those who re jected the war.

I thin k that a Imlanced view of those who fou ght.in Vietnam and those who 

did not is stated well in the following resolution, adopted by the Convention of 

the Diocese of New York on May 8,19 74 :

“Whereas, American society must proceed to heal the wounds at home and 

abroad caused by th e Vietnam Wa r a nd to reconcile all men in the newly achieved 

I>eace, and

“Whereas, in the power of th e Holy Spirit all Christian people m ust witness to 

the renewing of men and community through forgiveness and pardon, especially 

for those punishe d for actions based on conscientious convictions,

“Be it there fore resolved that t he Diocese of New York memoria lize t he General 

Convention (of the Episcopal Ch urc h) to call on the app rop riat e civil aut hor itie s 

to gra nt amn esty to all who have refused mil itary service in Vietnam for reason 

of conscience, and

“Be it fu rth er resolved that the Diocese of New York memoria lize the General 

Convention (of the Episcopal Chu rch ) to recognize and commend those who in
628

obedience to conscience and the call of their country chose to follow the law of 

the land and serve in Vietnam or wherever called ui>on to go.”

A similar view appears in a resolution or “statem ent of conscience” adopted 

by the Bishops of the Episcopal Church in a national meeting last October (in 

Louisville, Kentucky) :

“Whereas American society must proceed to heal the wounds at home and 

abroad caused by the War in Indochina and to reconcile all people in peace, and

“Whereas the national disunity brought about by the War in Indochina has 

caused some in this natio n to scorn the conscientious acts of those who resisted 

the call to bear arms, and others to belittle the sacrifice of those who accepted 

the call to m ilita ry service, and

“Whereas as Christia ns we are called to work for reconciliation among all 

peop le; now therefore be it

“Resolved that the House of Bishops calls upon t he appropriate author itie s of 

the government of the United States to gra nt to Vietnam vete rans every benefit 

it has given to veterans of p ast w ar s; and be i t furth er

“Resolved th at general amnesty be granted to all who have refused to participate in th e conflict in Indochina ; and be it furth er

“Resolved that the House of Bishops calls upon dioceses and parishes of this 

Church to include in the ir Christian education and social concerns programs a 

serious consideration of the question of amnesty and the needs of retu rnin g 

vete rans.”

I suppo rt these views. Without belittling the sacrifice of those who accepted the 

call to m ilita ry service, I urge amnesty now for those who resisted it on grounds 

of conscience.

New York, N.Y., March 1, 1977,.

Hon. Robert W. Kastenmeier,

Ragburn House Office Building,

Washington, D.C.

Dear Mr. Kastenmeier: Regarding the House Judiciary Committee’s Hearings on Amnesty to be held this week, please find enclosed testimony for the 

record.

My name was submitted as one of three former exiles, men who had been indicted for draft evasion and who had gone abroad for a number of years—in 

my case four—ra the r than to prison. I hope you wil find one of us to be relevant 

witnesses.

My name was submitted to William P. Dixon of your office by Henry Schwarzschild of the American Civil Liberties Union amnesty project.

I am the autho r of the only comprehensive book on the Vietnam Wa r’s military and d raft exiles. I was a working jo urn alist before my refusal to be drafted 

in the spring of 1968 and my indictm ent on October 28, 1968. I therefore did w hat 

came naturally, which was to wrrite a number of magazine articles for The New

Republic, the Boston Olobe magazine etc. and a book on the subject of the exiles 

in Canada, where I found myself. (The New Exiles, 401 pp. 17.95 & $2.95, Liveright, N.Y., 1971.) In London, England, I later became a consultant to the ACLU 

Project Amnesty. In February, 1973, I returned to Cleveland, Ohio, and successfully sought a dismissal of my case. The las t year I have worked in New 

York for NBC News as an investigative reporter and have recently gone back to 

freelance writing (see recent cover stories on amnesty in The New Republic and 

The Nation—current assignments are from Rolling Stone, Penthouse, and New

Tim es). Before resisting the dra ft, I was a freelance correspondent in Vietnam 

for several months.

I would be pleased to testify at tlie hearings or have my written state ment 

inse rted in the record. T hank you.

Sincerely,

Roger Neville Williams.

Statement for House J udiciary Committee Hearings on Amnesty

(By Roger Neville William, author, jou rna list)

Gentlemen of the Committee: Alexander Solzhenitsyn is now in exile. He 

had a choice. Keep quiet or go to jail. He refused to keep q uiet and refused even a 

half hour’s work at a labor camp. That left exile, imposed on him by the Soviet 

Union.
629

During the Vietnam War, tens of thousands of young Americans had a choice. 

Keep quiet a nd be drafted for Vietnam. Or refuse. Refuse to be drafted, and go to 

jail or into exile. Serve the government in an undeclared wa r th at the nation’s 

best minds did not thin k served the interests of th e United State s, in a wa r th at 

was not for the country’s defense hut which many people considered an aggressive war against a poor, agricultural Asian people, or, refuse, and go to jai l or 

exile. During those difficult years some 800 men chose jail. Perh aps a hundred 

thousand chose exile abroad or exile in th eir own country.

Speaking as one who spent five years as a fugitive under indictment for draft 

evasion, four of them in exile in Canada and Europe, I think I can understand what it must be like for Solzhenitsyn. But I’m not concerned here with the 

Soviet w rite r; I’m concerned with Americans in exile, friends of mine who also, 

like Solzhenitsyn, face prison terms if they return to th eir homeland and 

families.

I ask the gentlemen of this Congress, who have the power to declare w ar and 

to grant amnesty, why can’t my friends come home?

Why c an’t Dr. Don Burke, a surgeon in Montreal, Jesse Winchester, singer and 

recording artist, Peter Milord, a poet and teache r in Newfoundland, come home? 

Why can’t Montreal discjockey, Andy Barry, come home? Why can’t university 

professors Bruce Garside and Paul Petrie come back from Montreal and Vancouver. Why can’t former New York Times reporter, Richard Gooding, come 

home? Why can’t Rich ard Perrin, auto mechanic in Regina, and Stan Pietlock, 

high school teacher in Toronto, come home? Why can’t Montreal film-maker, Ja rad 

Finesmith and Vancouver photographer, Ross Hazel, come back? 'Why can’t 

David Weise, homesteader in British Columbia and Fr itz Effaw, computer analy st in Britain, come home? Why is Lewis Simon in solitary confinement at 

Fo rt Dix after five long years in Sweden while Lie utenan t Calley is free on 

bond?

I came home, but I was lucky. After the war and the dr af t ended la st Jan uar y, 

I took advantage of a procedural error that had been lurk ing in my selective 

service file. With the help of a good lawyer, my case was dismissed. But not 

everyone is so fortun ate. Most of the men I mentioned above are army deserters. 

They face time in prison if they re tur n and most of them can’t afford th at because 

they have careers to follow and families to support. One man I know, a deserter, 

who has no family to support and no family in the United States to support 

him—a very lonely exile—retu rned last year after five years in Sweden. He expected to be released from the service witli a less-tlian-honorable discharge, and 

would have felt honored. He wanted very badly to be a free Am erican once again. 

Instead, Richard Dean Bucklin is serving 15 months at hard labor in Leavenworth. Th at’s his amnesty.

When there is serious talk of amnesty, many well-meaning people talk of the 

need for the exiles to pay a price. But w hat is three, four, five yea rs’ exile if not 

a price? I know men in Canada who have spent literally one third of th eir life in 

exile, the whole of the ir twenties, and these men have wives an d babies. Are you 

going to ask that th ey serve two years in a hospital or Vista o r whatever before 

they ar e allowed to return to this country as free men? That isn’t an amnesty. 

You can not qualify an amnesty. An amnesty is or it isn’t.

And why would it be fair to ask a man of 30 or 31 o r 32 to “serve” his country 

in order to clear his name when no one was asked to serve in Vietnam over the 

age of 26, the cutoff for the draft ? Also, the idea of a review is equally absurd. 

How would a review board deal with 30 to 50 thousand dr af t violators, tens of 

thousands of non-registran ts, 35,000 deserters, thousands of men and women with 

crim inal records for antiw ar civil disobedience, and 450,000 Vietnam-era veterans w ith less than honorable discharges?

No one at all will return under a conditional amnesty. No one will pay a fur ­

the r price for the righ t to return. The exiles will simply settle down permanently, as so many already have, to life in whatever country they find themselves, 

and will never again visit their birth place or be able to ret urn to take care of 

sick and elderly parents—they will never see the ir native land again. Th at will 

be the result of a conditional amnesty. And they will haunt this nation forever.

Why is it so difficult for th is country to gra nt an amnesty. Why was Czechoslovakia able to grant amnesty las t year to 50,000 Czechs who fled in 1968 

rather than submit to the Russian boot? Why did that Czech amnesty also include non-violent crim inals in Czech prisons serving less tha n five year sentences? Why did Jo rda n gra nt amnesty to th e Palestinians w ho/ried to overthrow 

the government—surely a far greater crime than evading government service?
630

Why did Greece gra nt amnesty to hundreds of political priso ners including the 

man who actu ally attem pted to assassinat e General 1’apadapoulos in 1968? Why 

did Bast Germany las t yea r gra nt amnesty to 33.000 jiolitical prisoners including 

many people th at government had accused of trea son ? And why could Premier 

Gough Wliitlan of Aus tralia make the first act of his new government a declara ­

tion of amnesty for Au stralia’s war resisters, releasing several hund red from 

priso n on th e first da y of hi s term ?

“Law-n-o rder” certain ly are not abou t to collapse in these vario us sovereign 

nation s. Nei ther Bast Germany nor Aus tralia are afr aid for the secu rity of thei r 

country or are worried about “dishonoring” fellow countr ymen or soldiers by 

grantin g amnesty to politica l dissi dents and war resis ters. Are thes e countries 

more generous, more humane, more magnanim ous and most of all, more secure, 

tha n th e U nited S tates? I t appe ars so.

Why was desertin g or resisting the dr af t duri ng this wa r such a crim e? What 

about the hund reds o f thous ands of men who avoided Vietn am service by joining 

the National Gu ard ? Wiiat abo ut the thousands who received phony medical 

deferments or went into deferable jobs in indu stry or ta ug ht school? Why is i t we 

who avoided service in a war we considered wrong by going to jail or exile the 

ones who have to pay? Why do th e exiles face j ail t erms while the Vice President 

of the United States commits f ar gre ate r crimes and goes scot fre e?

This Congress mus t gra nt an amnesty. It is clea r the Pre side nt won’t and 

doub tful th at his possible successor will. Mr. Nixon has compared himse lf with 

Abraham Lincoln, but modestly makes a distinction on one point. Unlike Lincoln, 

he will never gra nt amnesty to deserte rs and draft evaders. He has made th at 

perfectly clear.

Lincoln, duri ng the Civil War, persona lly intervened to spar e the lives of 

deserters. He bent the rules to favo r compassion and pardoned those whom he 

called “neighbors and neighb or’s sons.” The government af ter the war also 

pardoned the ent ire Confederacy and all of its soldiers and general s who had 

tak en up arm s agai nst the governm ent in Washington. Nixon can compare himself t o Lincoln but histo ry won’t.

History, rath er, waits on the gentlemen of thi s Congress. This Congress could 

show compa ssion a nd noble leadership by pa ssing an amnesty bill that would help 

put the scars and divisions of the Vietnam years behind us. You, as “representative s” of the i»eople too often feel, if I may say so, th at you must simply represent t he people’s will and do their bidding. But the people have been misled and 

their will is confused and they wa nt n othin g so much as leadership.

An amnesty should cover all dr aft evasion, desertion and an tiw ar offenses 

occurring from August 4, 1964 to Janu ary 23, 1973, t he date of the Paris Agreements and the suspension of th e d raf t. All less-tban-honorable discharges received 

during those years should also be included in a universal, uncond itional am nesty. 

Nine years is a very long time of uphea val in the life of thi s nation and many 

of its citizens. By comparison, our fat hers’ involvement in World Wa r II was only 

three years. There are actually men in C anada who said “Hell no, we won’t go” in 

lat e 1964 and for whom this year of 1974 mark s one decade of exile. Have they 

not paid a price? Have we all not paid a price. Has this country not paid a 

pric e?

Why can 't this government gra nt an unconditional amn esty ? Wha t kind of a 

country is this anyw ay?

Paris, France, Feb rua ry 25, 191^.

Rep resentati ve Kastenmeier.

U.S. House of Representati ves,

Washinrjton, D.C.

Honorable Mr. Kastenm eier: I have read th at your subcommittee will be 

holding hearings on th e question o f am nesty. I am one of those concerned, having 

lef t the Sta tes in December of 1968 rather tha n take pa rt in a war th at went 

aga inst all I believe in. Though I obviously canno t be pres ent to give testimony, 

I would like to sta te my views here and, if possible, have them read into the 

record.

I thin k th at the media and the exigencies of politics have caused a disto rtion 

of wh at we who have come to be called draft dodgers repre sent. Too often, 

people a t th e extrem es have been depicted as rep rese ntat ive of the whole group. 

I would like to tell my story which, I think, is more or less typical of draft 

dodgers as a whole.
631

I am a man who deeply loves his country, the United States of America. In 

my more than five years of exile, I have never stopped loving it. On the contrary, 

my years in Canada and Europe have shown me th at the American experience is 

truly a unique one, one which still captures the imagination of the world and 

which still evokes in me great feelings of pride an d love.

The day I left the United States was the sadd est of my life. Those who say 

that leaving the country was a coward’s choice have l ittle understanding of the 

pain and agony involved in such a decision and the ensuing consequences. For 

me, and for many like me, the decision was a kind of death, a terr ible w renching 

ap ar t from us of something essential and deeply loved. Years spent in exile have 

caused pain only in p art explained by the long separation from family and friends. 

The sep aration from country also causes grea t suffering.

I am from Missouri, the hea rtla nd of the country. My parents are farm ers 

and our lives and hea rts are deeply attache d to the American ear th. In us all, 

there is a corresponding at tachment to America the idea a nd the ideal. This is no 

mindless belief in an ideology, but rather a vita l participation in the continuing 

American experience.

The war in Vietnam was a shock to our belief and trus t in the United States. 

I saw my country engaging in something unworthy of it, something shameful 

and immoral. All that had been instilled in me as an American caused me to 

judge th at very same America as guilty of something I could not condone. I am 

no starry-eyed idea lis t; I realize the necessity for certain kinds of action in 

world affairs, the world being what it is. But the war in Vietnam, quite aside 

from being an exercise in f utility, went a gainst all I believed in.

Several possibilities were then available to me. The first was to serve in the 

Army in spite of my beliefs. This I could not do and remain a man I could live 

with the res t of my life. The second was to claim to be a conscientious objector. 

But to be a C.O., one had to swear to be ag ainst all wars. That would have been 

perjury on my p art, for I would fight to defend my own country. A th ird possibility would have been jail. But, in addition to my duty to my country, I have 

duties to my family and to myself. What five years of imprisonment would have 

done to me "would have been ugly and would have left these duties unfulfilled. 

Furtherm ore, prison would have meant that I was being punished by the system 

for the very beliefs that, same system had instilled in me. The last possibility was 

to go into voluntary exile, and th at was what I chose.

Exile is painful. Brothers and sisters grow up in your absence, get married, 

have children which you never see. Paren ts grow older and feel the absence of 

one of their children more deeply. Life goes on, but those in exile are sepa rated 

from much that gives it meaning.

Yes, I think it is time for amnesty. I feel no bitterness toward my country for 

my personal fa te ; I have never felt anything but profound sorrow. To say that 

it is time for both sides to forget is use less; the wounds caused by this war will 

not heal in our lifetime. It is time, however, for a mutual forgiveness. Finally, 

I think it is important to remember that we who chose to go into exile did so 

out of a belief in what our country should stan d for. It was a ma tter of conscience, not cowardice.

I w’ould greatly appreciate it if I could receive a copy of the subcommittee’s 

findings and conclusions. Thank you very much.

Sincerely,

Wesley Sizemore.

Acton, Mass., February 27, 1974.

Hon. Robert W. Hastenmeieb,

House Committee on the Jud iciary,

Rayburn Office Building, Washington, D.C.

Friends : As your hearin gs on Amnesty approach I have wanted to write you 

as the paren t of a war resister who has served his time—“paid his price” fo r his 

conscientious disobedience of the dr aft law. It is, strangely, impossible for me 

to do j us t this. If I speak about amnesty, I must speak about all the men whose 

deepest instincts demanded that they reject our military behav ior in Vietnam, 

be they resisters, deserters, evaders, avoiders or mutineers. Each of them, given 

his own base and his own perceptions, has done what he had to do in revulsion 

over what we adults asked him to do to himself, his country and the people of 

Vietnam. As I heard it, the young Black man’s “Hell no, I won’t go” and the
632

religiou s objec tor’s “obedience to a high er law ” shar ed a ring of tru th th at we 

don’t often hea r in Washington these days. They were both willing to say NO 

when asked to do something they perceived a s wrong.

My son, a classified C.O., has paid a high price for sayin g no to conscriptio n. 

He spent a decade being classified, channelled, indicted , tried, sentenced, jailed 

and paroled. He spent ninetee n months as a Federal convict, six weeks of it in 

“adm inis trat ive segre gation ” which means solitary confinement which means 

twen ty-three and a half hours a day in a metal cage and the other half-h our 

pacing an indoor metal catwalk. He spent five hund red and seventy night s in 

jail , and nigh ts i n jail a re damned. And for th e re st of his life—barrin g a mnesty— 

he’s an ex-convict.

One might suppose that the 6500 men who have “paid the price ” for resisting 

evil would have no need of amnesty now. The fac t is th at they are still paying, 

and alwa ys will unless a universal, unconditional amne sty resto res them to full 

citizenship. Presidential pardo n might resto re some of th eir civil ri gh ts : the 

rig ht to vote, to run for public office, to hold profes sional licenses, to compete 

with out prejudice in the job market. Bu t these men who insis ted on the ir righ t 

to refus e to kill the ir brother s and sist ers in Vietnam are not askin g anyone ’s 

pardo n for so doing—least of all a Pres iden t who dem onst rates lit tle unde rstan ding of conscientiou s refusal to do wrong.

Amnesty—not pardon—is wh at they need, and amnesty is what the older 

generation must see th at th ey get. Most of us have done a good job of forg ettin g 

our earl y supp ort for th e Vietnam war which we h ave now’ come to deplore. Because our clear-eyed younger generation deplored it before we did is no reason 

for us to forg et the ir “tresp asse s” less readily tliat our own.

I w'rite you, then, for only one p urp ose : to ask you, and me, and all of us over 

35 to commit ourselves to the provision of full amnesty for all of our sons who 

somehow’, despite us, have re-learned the ancient American virt ue of saying NO 

to wrong-doing, no matt er wh at th e cost.

Submitted to the Ju dic iary Committee in all sincer ity,

Elizabeth H. Boardman.

Burlington, Vt., Feb rua ry 25, 1974.

Re amnes ty hearing s.

Mr. William Dixon,

House Judiciary Committee, Rayburn Building,

Washington, D.C.

Dear Mr. Dixon : Louise Ransom suggested I send you a prep ared stateme nt 

about why I favo r a unive rsal and unconditional amnesty . My stat eme nt is enclosed and I would like to speak before the subcommittee as a witness, however,

I have no money for travel ing expenses to Washington, D.C., due to the fact 

th at my husband was in prison and I was living on welfare until Feb ruary 1.

May I suggest Lewis Simon as a pote ntial witn ess? He’s currently in the 

stocka de a t Fo rt Dix.

It is too late for amnesty to do much good for John and I ; John was release d 

Feb rua ry 1 from prison, where he served nine and one-half months of a oneyea r sentence for refusing to join the Army. Nothing the government could do 

would make up for th at time in our lives, but a univ ersal and unconditional 

amnes ty will mean a great deal to the hal f a million young men who are still 

being punished as a direct resu lt of the ir opposition to the Vietnam war. A 

univ ersa l an d uncon ditional amnes ty w ill benefit all Americans.

Fi rs t of all, I would like to tell Congress more about my family. John and I 

agreed when we w’ere mar ried tha t, once we had a child, he would be the wage 

ear ner in our family, and I would be a full-tim e wife and mother. Like many 

others, we learned quickly th at it is not easy to supp ort even a small family on 

one income. But John took his respon siblity as husb and and father ser iou sly : 

he worked steadily for the two-and-one-lialf years pri or to his imprison ment, not 

even taking a weeks vacati on in all that time. We did with out many mate rial 

possessions (An automobile, a clothes dryer, excess clothing, etc.) th at most 

people consider necessit ies because we both believed in the importance of main ­

tain ing the tra dition al family unit.

When John left for prison I applied for welfare, deciding th at i t was especially 

imp ortant for me to remain a full-time mothe r while my husband was away. I
633

felt guilty about living on welfare when I knew that so many others needed it 

more tha n I did, but under the circum stances I had few alternative s. My family 

has certainly not benefited from Joh n’s imprisonment and I seriously doubt 

that Americans are any better off because of it.

Over 7,000 men have already been convicted for violations of the Military 

Selective Service Act and almost 40,000 others face future prosecution for the 

same “crime.” Even though the draft system has been suspended and the war 

has officially ended, indictments are still being issued against dr aft resisters.

A year ago I would have been pleased with a conditional amnesty or a limited 

amnesty for only those draft resisters who had stayed in the United States, but 

while John was away I did a lot of serious thin king and learned a great deal 

about the amnesty issue. I have always felt empathy for the men who went to 

Canada rather tha n join the army because that is what I wanted to do; John 

would not consider it. The men who went to Canada are no more immoral or 

criminal tha n those who y ears ago came to the United States in orde r to escape 

religious or political persecution in Europe. And when amnesty is granted to 

those who stayed in this country it must also be gran ted to those who chose to 

leave the United States, for they are no more “guilty” of refusing to join the 

army th an those who stayed here.

A year ago I agreed with the majority of Americans th at desertion from the 

military was a serious offense, but as I took a closer look at the military and 

the Vietnam w*ar, I began to realize th at if amnesty is to mean anything at all 

it must include those who “deserted” the m ilitary. When I first became aware of 

the war in Vietnam I discovered that almost everyone had a different theory 

about why we were the re and when I dug deeper I discovered that no one could 

tell me exactly why we were there. Although I am a woman and did not have to 

worry about being drafted, I did some serious thinking. I do not claim to be a 

pacifist, but there is one thing I am sure o f: If I ever kill ano ther human being, 

I intend to know exactly why I am doing it and I intend to know that there is 

no other possible course of action available to me. I thin k many war resis ters feel 

the same way. But many young Americans felt differently about the Vietnam 

situation . Their reasoning went like th is : “I do not understand why we are 

fighting in Vietnam b ut I believe in my country, therefo re I will join the army if 

I am dra fted.” Of course the wealthier young men, before the advent of the 

lottery system, had college deferments and the lucky ones never came close to 

being dra fted eith er before or after the lottery, so they escaped the moral 

dilemma others faced. Many poor an d/or uneducated individuals joined the 

army simply because they were not awa re of any alternatives. Bu t when the 

young draftee s got firsthand information about the military and the Vietnam 

situation , many of them could not tak e it. A large number of soldiers began 

using narcotics (not mariju ana , real narc otics) in Vietnam. Others, with more 

courage or self-respect, chose to quit the military. They did not run because they 

were afr aid of fighting; they quit the m ilita ry l»ecause they could not accept the 

moral responsibility for the actions committed by the military. As a result, a 

majority of them received less tha n an Honorable Discharge, a label which 

constitutes a life-long punishment. A universal and unconditional amnesty is 

needed to clea r the ir records and establish uniform discharges for all veterans.

I have read that the majority of Americans believe we should never have 

become involved in the inte rnal affairs of Vietn am : why, then, are we punishing 

men who felt the same way while the war was going on? Why do we continue 

to spend the taxpay ers money to track down and try men whose only “crime” 

was simply living according to their beliefs? What can society hope to gain by 

imprisoning these men? If the morale of the militar y is low, it is not because 

men refused to fight, but because men could not believe in what they were supposedly fighting for. The fac t that hund reds of thousands deserted the militar y 

in Vietnam is not the cau se of low morale in the m ilita ry, but rather a symptom 

of it.

Americans are not cowa rds; history proves th at when Americans believe a 

particular war is necessary and just, they fight. And if the United States was 

ever in serious danger the “dra ft dodgers” and “deserte rs” would probably be 

the first to volunteer to fight, jus t as t heir fathers rushed to the neare st recruiting 

station to enlist during World War II.

Sincerely,

Kat hl ee n A. Berglund.

31-658 0 —74 a
634

Minnesota Clergy & Laity Concerned,

Minneapolis, Minn., Febru ary 28 ,19 1 If.

Please include the enclosed resolu tions from Minnesota Religious and Political 

bodies in the record of the upcoming Congressional Hear ings on Amnesty, 

Mar. 7-11.

We in Minnesota are anxio us for i t to be known the re is a growing sentiment 

here for uncon ditional amnesty. This amnesty would include dr af t resisters, 

deserters, persons convicted by courts-m artial for mil itary offenses not punishable unde r civilia n law, vete rans with less tha n honorable discharg es, and 

civilian protest er and resi ster s to the war, thus allowing full rest ora tion of all 

civil, political, prop erty and o the r rights.

I’ve also included the resea rch we ha ve done here in Minnesota on th e number 

of Minneso tans who would benefit from an unconditional amnesty . Please include 

this information in the record of the upcoming Congressional Heari ngs on 

Amnesty. We feel this is imp orta nt information because of Pre sident Nixon’s 

insistence th at an amnesty would affect “only a few hun dred” in this country.

Thank you for your assistance. We will be anxiously awaiting the repo rt from 

this committee.

In P eace and Justice,

Carole Nels on,

MCLC Staff.

Minne sota Religio us .and Political Reso lut ion s on Amn esty

[Min nesotans for Amnesty, Coordinated by Minnesota Clergy & L aity Concerned, 

Minneapolis, Minneso ta]

sta teme nt on am ne sty

Pri est s Senate of the Archdiocese of St. Paul/Minne apolis, August 16, 1973, 

ther efor e be it

Resolved, Th at the Senat e of priests ins tru ct the chairman of the Justice and 

Peace Committee to appoint delegates to accompany in the name of the Senate 

the Minnesotans for Amnesty Committee in the ir meetings with congressmen and 

senators.

Be it furth er resolved th at the Senat e endorse the petit ion of the National 

Clergy & L aity Concerned on Amnesty.

The following is the tex t of the Natio nal Clergy & L aity Concerned’s Amnesty 

petition adopted by the Priests Senate.

For all those whose opposition to the war in Indochina brou ght them into conflict with t he laws of th e Government, we ask amnesty. We call upon t he Congress 

to enac t amnesty in its legislative aut hority to determ ine what is the law. We 

call upon the Pre side nt to decla re amnesty by his executive auth orit y.

Amnesty is not pardon. In judi cial trad ition, amnesty forgets or blots out the 

offense for the sake of reconciliation and a new beginning. Let us remember in 

proclaiming amnesty we affirm our trad itio n of defense of conscience, the duty 

of individu als to judge for themselve s what is rig ht in the face of conflicting 

duties , an d the found ation of our society on hi gher moral law.

This war has broug ht no heroes but only victims. Therefore let us not be 

vindic tive toward one group to assuage the sufferin g of other s. We are making 

peace w ith our enemies, let us be reconciled among ourselves.

We may be broug ht toge ther again only if redre ss is provided for those who 

had to face jai l or exile for the ir convictions. Let all those who are convicted 

be set free and all those facing prosecution or who might be prosecuted be immunized from furth er jeopardy and all records wiped clean. For all deserters, 

dr af t violators, and those accused of civilian acts of resis tanc e let there be a new 

beginning.

Let us amnesty also all those who, because of the war, were brou ght into 

exte nua ting cir cumstances in which they breached civili an or m ilita ry regulation s 

or were denied the full prote ctions of due process. For the hal f million veter ans 

who are now being punished for life by otlier- than-h onorable discharg es, let 

the ir records be correcte d to make them eligible for benefits th at would facilit ate 

a more hopeful futu re.

Religious trad itio n teaches th at “you should not hate your bro the r in your 

hea rt, but you shall reason with your neighbor, lest you bea r sin because of him. 

You sh all not tak e vengeance or bear any grudges aga inst the sons of your own 

people . .
635

We cannot restore to life our dead soldiers, nor undo the hu rts and wounds of 

others. We cannot undo the deva station of the lands and people of Indochina. 

We can repent and work for post-war healing. An unconditional amnesty would 

free us for a responsible and serious effort to rebuild our divided people.

ST ATE M EN T ON A M N ESTY

(Minnesota Annual Conference of the United Methodist Church, Jun e 14, 1973)

Whereas the Minnesota Annual Conference of the United Methodist Church is 

an expression of the Body of Christ which has been commissioned with the work 

of reconciliation an d;

Whereas we as God’s United Methodist people in the s tate of Minnesota abhor 

war with its destructive, divisive affects and;

Whereas the American Prisoners of War who were the hostages of injustice 

are now returned to their homes, therefore be it

Resolved, That the 1973 Minnesota Annual Conference go on record urging 

the Congress of the United States to grant full and unconditional AMNESTY 

to all persons who resisted the war in Southeast Asia, including those whose 

legal sta tus is rendered uncertain by the draft, those in prison, those in exile, 

those in judicial process and all those who were less tha n honorably discharged 

and whose civil righ ts and privileges were thereby impaired. Be it resolved also 

that this amnesty be extended to all retu rned Prisoners of W ar as well as officers 

and men of the Armed Forces who served in Southeast Asia at any time during 

the Vietnam War and who have, in obedience to orders or the spirit of the 

military duties imposed upon them, violated the norms of peace and international 

law governing warfare.

Whereas the 1972 Book of Discipline of the United Methodist Church, Social 

Principles section V, paragraph B, state s, “We ass ert the duty of churches to 

support everyone who suffers for causes of conscience, and urge governments 

seriously to consider restoration of rights to such persons while also main taining 

respect for those who obey.” Therefore be it

Resolved, That the 1973 Minnesota Annual Conference recommends, and we 

urge United Methodists in the s tat e of Minnesota to suppo rt action by the President an d/or Congress to gra nt amnesty, without qualifications or conditions, to 

all who are in legal jeopardy or exile directly related to the war in Southeast 

Asia.

God alone knows what finally determines the actions of human beings, and 

all of us know tha t few of us do anything for one reason alone.

Therefore we feel it unwise to attempt to judge the motives of those persons 

to be given amnesty, just as we do not presume to judge the motives of those 

who served in the m ilitary.

We do not dishonor but respect the consciences of those who fought and died. 

We see amnesty, not as a ma tter of forgiveness, but as one step toward the 

reconciliation of our society.

A CALL FO R R EC O N C IL IA TIO N AM ON G N ATIO N S AN D T H E R E L E A SE O F ALL 

P R IS O N E R S OF WAR

Together with religious leaders from all parts of our Nation and, indeed, all 

parts of the world, we call upon our Government to take prompt and specific 

steps to help transform the climate of hostility which has been generated at home 

and abroad as a res ult of its military involvem ent in Southeast Asia into a climate 

of reconciliation and understanding.

For several years, the families, congregations, and communities of our Nation 

have been divided over th e rightness or wrongness of their Government’s military 

actions and countless human sacrifices have been made in both their support and 

opposition. Among those who have experienced the grea test hostility and been 

called upon for the grea test sacrifice have been our young men who have been 

forced to choose whether or no t to serve in their Na tion’s military forces. Ironically, 

both those who have served and those who have refused to serve have found 

themselves among the chief victims of our Government’s policies.

Without minimizing the seriousness of the moral and spiritual implications of 

our Governm ent’s actions in Southeast Asia, the time has come now to leave the 

judgments of the rightness and wrongness of those actions to God and to history.
636

This is a time for new kinds of actions— including acts of forgiveness, generosity 

and good will regardless of who has been righ t and who has been wrong. Amon g 

other things, it is a time for healing the wounds which we have inflicted upon 

ourselves as a Nat ion and resto ring the spirit of natio nal harm ony, loya lty and 

honor which has been cherished b y Americans for n early two hundred years. I t is a 

tim e for conscious acts of affirm ation and compassion towa rd those individual 

Americans— especially those young men who have been confronted w ith the moral, 

physica l and social hazards of mi lita ry service— who hav e borne the burdens of 

our Gov ernment’s policies.

Recognizing that all of the Americans who have been called to milita ry service 

during the period of the war in Southea st Asia deserve our special support and 

understan ding, we are urging the President, the Congress and the Courts of our 

Nat ion to offer and provide humane trea tme nt to those Americans who have 

become, in one sense or another, “ prisoners of war.” We point out tha t the 

“ prisoners of war ” include n ot only the hundreds of g alla nt men who are curr ently 

being held cap tive by foreign governments but also thousands of other men who 

hav e been imprisoned or forced into exile by our own Gov ernm ent because of the ir 

opposition to its milita ry policies. We also point out that both official Governm ent 

policies and general public attitudes hav e changed cons iderably as the full impact 

of the war in Southeast Asia has become known among our citiz enry .

We call for acts of courage and compassion by all three branches of our national 

Gov ernmen t that will effect the prom pt and plen ary release, rehabilitation and 

retur n of all of these prisoners as both a demonstration of the sinc erity and 

seriousness of its quest for peace in Southeast Asia and as an inte gral part of a 

national and inter national program of reconciliation and good will amongst all 

the peoples of the earth.

App roved by the Com mittee on Internationa l Rela tion s, Min nesota Council 

of Churches, Decem ber 14, 1972.

M IN N ESO TA CL ER GY AN D LA YM EN C O NCERNED AM NES TY CAM PA IG N

Sta tem ent of Philo sophy

Am nes ty is a trouble some issue which dire ctly affects the lives of over one-half 

million Americans who hav e faced or ma y face criminal penalty as a result of their 

op po sit ion to the Indo china Wa r.1 Th e word “ am nes ty” is derived from Greek 

and French words meaning “ to for get ” . It calls for our intentio nal over looking of 

the fact that the law has been broken. Its purpose is to serve justice. It has been 

employed in many instances during the course of history by governments which 

sou ght to heal deep national division following war and ove rt civil strife. Desp ite 

the diff iculty of overlooking the violation of law, we can certain ly agree that there 

are cases in which this should be done. For examp le, a man hears cries for help 

from someone drowning in a lake. While running to the shore, he passes a “ No 

Trespa ssing” sign. Would justi ce be served by punishing this violation of the law? 

Cle arl y not, since there was a compelliug reason for breaking the law. To grant 

amnesty in such a case, to overlook the viola tion of law is to preserve life and 

would clearly serve justice.

To gra nt amn esty to all those persons who broke laws as a result of their 

opposition to the Indochina War is similar to our example where amnesty was 

granted for actio n taken to preserve life. In this case, howe ver, many people face 

criminal prosecution not for wha t the y did, but for what the y did not do. Almost 

all of them refused to follow orders of the Sele ctive Service Sys tem or militar y 

commanders because the y could not particip ate directly or ind irec tly in the killing of Vietnamese. Th ey were compelled to violate the law in response to their

1

 When we speak of amnesty for persons who broke law s as a resu lt of their opposition 

to the Indochina War, we mean :

a. the 60-100.000 such United States citizens who would be subject to criminal 

prosecution if they would return to this country ;

b. the 200,000 men and women in America who are 1) fugitives from the dra ft or 

military, 2) subject to prosecution. 3) awaiting trial, 4) in civilian or milltary 

prison, 5) at some other stage of the penal system ;

c. those who have completed their sentence but have not had the ir full civil rights 

res tored ;

d. the large number of civilians charged witli antiwar acts ; and

e. the 300,000 men who received less than honorable discharges.

In tota l, a half-million people could freely contribute to our future if they did not face 

criminal penalty.
637

consciences. Those who responded to the war in this way stand with those who 

upon hearing cries from the lake run to th e shore to provide help. By their actions, 

both affirm life by preventing its destruction.

In calling for amnesty we believe that each of us has the right to refuse to 

destroy life. No one should be punished for deciding in any set of circumstances 

not to kill. To gran t amn esty in this context is to uphold the inte rest of justice by 

preserving this right.

There is another need for amnesty th at goes beyond each man’s motives. Today 

we are faced with an overwhelming need to seek wholeness for our broken society 

so t ha t community migh t become possible. At no time since the Civil War have 

we as a n ation been so divided. This has been the result of the social disintegration 

which has been brou ght to light during the last eight years’ “war over the war” . 

If we would build peace and provide justice both at home and abroad, we m ust 

create a healing environment which nurture s a broad dive rsity of tho ugh t and 

action.

To grant amnesty in this context is to tak e the first step toward restora tion of 

our society and the societies of Indochina. To grant amnesty is to tak e the first 

step toward natio nal reconciliation which is necessary if we are to und erta ke 

meaningful initiatives for world peace. Only after we grant amnesty can we be 

truly open to the free flow of ideas which is needed to explore less d estructive 

means to defend freedom. To gra nt amnesty is to make community possible.

Want to help? Get in touch with us: Minnesota Amnesty Campaign, Minnesota 

Clergy a nd Laymen Concerned, 122 West Fran klin Avenue, Minneapolis, Minnesota 55404, Phone (612) 338-7033.

STA TEM EN T ON AM NES TY

(Adopted by the DF L State Central Committee, Jun e 9, 1973)

Whereas the U nited S tates is a pluralistic society in which th e spirit of RE CO NCIL IAT ION must prevail for the resolution of many differences a nd;

Whereas the differences that did divide this nation during the long and still 

continuing agony of the VIE TNAM WAR have been largely resolved by the 

now widely circulated revelations showing th at war to have been a tragic violation 

of both law and tru st and;

Whereas AMERICAN PR ISO NE RS OF WAR who were the hostages of 

injustice are now returned to their homes, therefore; be it

Resolved, Th at the DFL State Central Comm ittee memorialize its CONGRESSIO NAL DELEGATIO N as well as the CONGRES S OF TH E UNIT ED 

STAT ES to grant full and unconditional AM NESTY to all persons who resisted 

the war in Southea st Asia, including those whose legal statu s is rendered uncertain 

by the d raft, those in prison, those in exile, those in judicial process and all those 

who were less than honorably discharged and whose civil rights and privileges were 

thereby impaired ; therefore be it

Resolved, Th at this amnesty be extended to all returned PR ISON ER S OF 

WAR as well as officers and men of TH E ARME D FORCES who served in 

Southeast Asia a t any time during the V IET NA M WAR and who may have, in 

obedience to orders or the spirit of the military duties imposed upon them, 

violated the norms of peace and inte rnational law governing warfare.

You can help work for universal, unconditional amnesty. Write or call: 

MINNES OTA NS FOR AMNES TY, MIN NESOT A CL ER GY & LA ITY 

CONCERNED, 122 W. Franklin Ave., Minneapolis, Minnesota 55404. Phone: 

(612) 871-8033.

M IN N ESO TA N S W HO N EED AM NES TY

Since the beginning of our Minnesotans for Amnesty Campaign in Ju ne of 1973 

we have had many requests for statistics on the number of Minnesotans who 

would be affected by a universal, unconditional amnesty. In response to this a 

Research Team has worked for th e past four m onths obtaining accurate st atistic s 

where possible and estimating Minnesota figures from total U.S. figures where 

state catag ory breakdowns were unavailable. The following report is the resu lt 

of tha t research.
638

SE L E C T IV E S ER V IC E VIO LATIO N S (D R A FT R E S I8 T E R S )

Research Methods

1968-1969 figures were obtained from the records of Minnesota Draft and 

Military Help.

Sept. 1970-Sept. 1971 figures were obtained from the card files of the U.S. 

Clerk of Court offices in St. Paul, Minneapolis, Duluth (the three federal courts in 

Minnesota). Names of resisters for this period had previously been obtained from 

the U.S. Attorneys’ office by Minnesota Draft and Military Help.

Jan .-A ugu st 1970, Oct. 1971-1973 figures were obtained from the books of docket 

sheets in t he U.S. Clerk of Court offices in St. Paul, Minneapolis, Duluth. (These 

sheets are summaries of each federal grand ju ry indictment.)

Results

Total federal indictments 1968-1973: 678.—dismissals—344; acqu ittals—69; 

convictions—212; and unconcluded—48.1

C IV IL IA N P R O T E ST E R S A R R ESTED FO R A N T I- W A R ACTI ONS 

Research Method

In this category we gathered inform ation from various people in the Twin 

Cities c ommunity and wrote letters to folks in 12 communities ou tsta te. While we 

cann ot claim 100% accuracy we do believe these figures are very close to the 

actual numbers.

Results

Total civilian protesters arrested from 1968-1973: 880.—War Tax Resisters—4; 

Draft Board Actions—10; Twin City Civil Disobedients—79; Outstate Civil 

Disobedients— 181; Marshall— 166; and St. Johns University/St. Cloud—21.1

M IL IT A R Y D E SER TE R S

Research Method

Representative Donald Fraser inquired at the Departme nt of Defense and the 

Veterans Administration and was told th at information on deserters from the 

military was n ot available by state.

The U.S. figure here is from the Dep artm ent of Defense. According to The

Almanac of American Politics, 1974 Minnesota is 1.88% of the total U.S. population. The following statistics are based on these figures.

Results

U.S. total military deserters—32,000. 

Total Minnesota military deserters—602.'

LESS TH A N H O N O RABLE D IS C H A R G ES

Research Method

Represe ntative Donald Fraser inquired at the Departme nt of Defense and was 

told that information on less than honorable discharges from the milita ry was not 

available by state.

The U.S. figure here is from the Dep artm ent of Defense. Minnesota statistic 

is figured as above.

Results

U.S. total less tha n honorable discharges—450,000.

Total Minnesota less than honorable discharges—8,460.1

1

 People wishing statistics on dra ft reslsters in their area can get them from the Minnesota Clergy and Laity Office, 122 W. Fran klin Ave.. Minneapolis 55404 or call us at 

(612) 871-8033. Please include the number of the judicial division you are in (ask your 

county courthouse).
639

NON REG ISTR ANT S

Research Method

U.S. Dep artm ent of S tatistics estim ates th at 2 million men turn eighteen every 

year. In a telephone interview in Jan. 1974 Col. K night, head of Selective Service 

in Minnesota reported th at at least 1 % of Minnesota men turn ing eighteen each 

year didn’t register with Selective Service. The following statistics reflect these 

figures.

Results

U.S. male population turned eighteen 1968-1973—10 million.

Minnesota male population turn ed eighteen 1968-1973—188,000.

Total Minnesota nonregistrants 1968-1973— 1,880.—(This may be a conservative 

figure because Byron Pepitone, head of U.S. Selective Service estim ated a 10% 

rate of nonregistration (N.Y. Times, June, 1973).

March 1, 1974.

Mr. William D. Wick

Washington, D.C.

Dear Mr. Wick : Tha nk you for your recent letter regarding the amnesty 

hearings scheduled for March 7, 8, and 11. I also apprecia te receiving a copy of 

your excellent article from the Buffalo Law Review. If it is the wish of the 

Subcommittee, this article will be inserted in the prin ted record of the hearings. 

Sincerely yours,

R obert W. Kastenm eier,

Chairman, Subcommittee on Courts, Civil Liberties, and the

Administration o f Justice.

Mr. William Dixon,

House Judiciary Committee, Rayburn House Office Building, Room 2137, Staff

Room 4, Washington, D.C.

Dear Mr. Dixo n: It is my understanding th at a Subcommittee of the House 

Judiciary Committee inte nds to conduct hearings on the issue of amnesty on 

Marc h 7th and March 9th.

I authored an article on the subject of amne sty titled, “ The Case for an Unconditional Universal Amnesty for Draft Evad ers and Armed Forces Deserters,” 

which appeared in 22 BUFFALO L. REV. 311 (1972).

I am enclosing a copy of th at article for the Subcommittee’s use, either as 

reference material or as a pa rt of the printed record of the hearings. As long as it 

is indicated th at it was originally published in the BUFFALO L. REV. there is 

no problem with re-publication.

Please do not hesitate to con tact me if you have any questions or comments 

regarding the article.

Sincerely,

William D. Wick.

The Case for an Unconditional, Universal Amnesty for Draft Evaders

and Armed Forces Deserters

“W hat does the soldier want” ?

“To kill! To kill!”

“What are you?”

“Soldiers!”

“W hat are you, really?”

“Tigers!”

“W hat do you eat? ”

“R aw mea t!”

“What do you drink?”

“Red blood!”

“Whose blood?”

“ Gooks’ blood!” »

1

 Total Minnesotans who will benefit from universal, unconditional amnesty: 11,895. 

1

 A. Stapp, Up Against the Brass 20-21 (1970).
640

Th at cha nt reverberates throughout For t Sill when basic train ing drills are 

conducted. Many soldiers learned their basic training lessons well and applied 

their knowledge in Vietnam.

William Whitmeyer, for one. He served with the 172nd Armored Regim ent in 

Vietnam. One memory of his service in Vietnam is his participation in the mu rde r 

of twelve Vietnamese villagers. Some of the villagers were women, and all of them 

were more tha n sixty years old.

No one has to answer for it. I never heard any more about it, except in the 

Stars and Stripes I read th at the 69th Armored near Bong Son has killed twelve 

VC. The officers thoug ht it had been a good way to release tension and get some 

kills. They were always pushing our unit for kills, more kills.* 12

Jerry Samuels was in the 65th Engineers Battalion in Vietnam. His unit also 

slaughtered civilians—even after battl es subsided:

“Things calmed down, and me and one of the buck sergeants and two other 

guys took these four chicks in the elephant grass outside the perimeter, and we 

were all fooling around. We balled these chicks. They were forcibly willing— 

they’d rather do th at th an get shot. Then one of the girls yelled some derogatory 

thin g at the guy who’d balled her, in Vietnamese, bu t he knew what it meant. 

He jus t reached down for his weapon and blew her away. Well, right away the 

oth er three guys who were there, including myself, picked up our weapons and 

blew away the other thre e chicks. Just like that. It was a spontaneous, instantaneous type thin g.” 3

The experiences of William Whitmeyer and J err y Samuels cannot be dismisesd 

as unfortunate aberrations of the Vietnam war. Similar incidents have occurred 

frequently in Vietnam, and there is evidence th at they “were a logical outgrowth 

of established United States military tactics.” 4

Whitmeyer and Samuels did not stay in Vietnam to contin ue to carry out 

United States military tactics. They deserted, and b oth are now exiles in Canada.

They are not alone. There are thousands of deserters in Canada and other 

countries who have had similar experiences.5 * And there are thousands of draft 

evaders who did not need direct experience in the war to decide th at th ey wanted 

no part of it.8

Since these men face legal sanctions if they return to the United States, amnesty 

for the exiles “is an issue which plainly is going to have to be dealt with in 

Washington.” 7

 Legislation to provide am nesty for dra ft evaders recently has been

1

 R. W ill iams, Th e New Exiles 270 (1 97 1).

3

 Id . a t 276. See, e.g ., Vietnam V et er an s A ga in st T he W ar, The W in te r So ldier In vest ig ati o n : An In quir y in to America n W ar Crim es (197 2) ; T. Tay lo r, Nurem be rg an d V ie tna m : An A merica n Trage dy (197 1) ; S. Il er sh , M.v Lai 4 (1 97 1) .

4

 Com me nt, Mg Lai Massacre: Th e Heed fo r an In te rn ational In ve st ig ation, 58 Ca lif. L. 

Rev. 703, 724 (1 97 0) . Three m il itary pr ac tice s in p art ic u la r ar e no ted as en co ur ag ing or 

co nd on ing th e m is tr ea tm en t of ci vilia ns :

•‘In th e fi rs t pla ce, th e Army de si gn at es en tire are as of su sp ec ted ene my ac ti vit y as “f ree 

fire zones,” in wh ich an y pe rson , re ga rd le ss of sex or st atu s, is au to m at ic al ly co ns idered a 

Viet Cong sy m pa th iz er an d can be killed a t a so ld ie r’s vir tu ally un br id le d di sc retio n. More ­

over, U ni te d S ta te s m il itary lend ers en co ur ag e hi gh “body co unts ” as evide nce of war 

g ain s; som e br igad e comman de rs ru n co nt es ts in which pr iv ile ge s ar e aw ar de d to co mpa ­

ni es t h a t r eg is te r th e mos t kills. . . .

“Secondly re po rts of va riou s info rm ed source s allege th e use of to rt ure , maim ing, te rr or, 

an d m ur de r as re la tive ly ro utine United Sta te s po lic ies , an d ass ert th a t lic en se to commit 

su ch at ro ci ties ori gi na te s in “o rd ers fro m hi gh er u p.”

“T hir d . . . som e so ur ce s co nten d th a t th e Uni te d S ta te s a ir w ar in Vi etna m is condu cted -with u tt e r di sr eg ar d fo r civilia n welfare. Th ey ci te th e re pe ated Am erica n bomb ing 

att ack s upon a Vi etna mes e lepr os ar iu m an d upo n th e Huo ng P hu c sch ool as ex am ples of th e 

ta rg ets pou nd ed da ily du ri ng th e r ai ds of N or th Vi etna m. Id. a t 725.

5

 In one st udy of tw en ty d ra ft ev ad er s an d te n de se rter s, th e follo wing re as on s we re 

giv en fo r re je ct in g a role in th e w ar :

1. Th ey vie w par ti ci pat io n in th e Vi etn am W ar as im m o ra l; th ey said th a t th ey wo uld 

feel as ha med to ha ve to ad m it to th eir ch ildr en th at th ey ha d pa rt ic ip at ed .

2. H av in g bee n ra ised to ch er ish au tono my, se lf- direction, an d in di vi du al re sp on si bi lit y, 

th ey re je ct auth ori ta ri anis m an d qu es tio n th e motives un de rlyi ng th e U.S . use of powe r.

3. Th ey see th e Vietnam es e, an d oth er people, as hu m an be ings an d do n’t buy th e 

Mad iso n Av enue tech ni qu es of de hu m an iz in g them . . . . [T ]h ey see mu ch of th is as ra cis t 

pr op ag an da .

4. Th ey p erce ive w ar in th e nu cl ea r ag e as b ar bar ic a nd stu pi d.

5. Th ey con demn th e U.S. va lu e syste m an d ar gue th a t to day 's society is no t w or th

saving . R. W ill iams, su pr a no te 2, a t 337—338.

"E st im ate s of th e nu m be r of ex ile s are as fo llow s: 70,0 00, Ti me. Ja n. 10. 1972. a t 15; 

75,000 . Newsweek, Ja n. 17, 197 2, a t 19 : 100 .000, R. W illiams, su pr a no te 2, a t 4.

T W ick er, In th e N ation : Th e Co st of Consc ien ce, N.Y. Time s. Fe b. 13, 1969, a t 44, col. 4.
641

introduced in the Senate and House of Representatives. 8

 The public debate on 

on the issue of amnesty is just beginning.

One hesita tes to analyze the issue of amnesty in a “scholarly” manner, fearing 

th at the analysis may conflict with the initial, emotional response th at no humane 

natio n could punish men like Whitmeyer and Samuels because they refused to 

continue to kill in Vietnam; too often one has “the eerie feeling th at the legal 

scholars are not concerned with the same war as described by observers like Fall 

and dram atized nightly on Huntley-Brinkley.” 8

Fear not. The “scholarly” analysis for amnesty only confirms the more emotional reaction in favor of amnesty. Before directly proceeding with th at analysis, 

however, a brief examination of the two forces which drove so m any Americans 

into exile is necessary. Those forces, of course, are conscription and the war in 

Vietnam.

I . C O N S C R IP T IO N

A. The Constitutional Opposition and Subsequent Tradition Against Conscription

There is a widespread belief in America th at compliance with conscription laws 

is an American’s time-honored obligation to his country, and th at resistance to 

the dra ft is “un-American.” 10 However, the opposite is actu ally the case: the 

American trad itio n is one of strenuous opposition to all forms of invo luntary 

servitude, including conscription. * 11

Although the colonial militia system has been cited as a precedent for conscription, th at system was not similar to modern conscription.12 In fact, conscription was one of the few issues on which there was u nanimity at the Philadelphia 

Con stitutional Convention in 1787.13 Conscription “was so impossible to imagine, 

given the circumstances and ideological climate of the times, th at no voice was 

raised against i t.” 14 Even those delegates who wanted the strongest powers for the 

central government excluded consideration of the power to conscript.

It was not until the W ar of 1812 tha t the first m ajor effort to e nact a d raft law 

occurred. Secretary of War Monroe proposed to “call a designated num ber out 

of the population between the ages of 18 and 45 for service in the arm y.” 15 The

s

 Three different proposals for amnesty have been embodied In legislative form :

S. 3011, 92d Cong., 1st Sess. (1971), is the bill introduced by Sen. Taft (R-Ohlo). 

It does not cover deserters, and draft evaders must work for three years at alternate 

service before receiving amnesty.

H.R. 12417, 92d Cong., 2d Sess. (1972), is the bill introduced by Rep. Koch (D-N.Y.). 

It does not cover deserters, but the required period of alt ern ate service is two years 

rather than three.

H.R. 14175, 92d Cong., 2d Sess. (1972), is a bill introduced by Rep. Abzug (D-N.Y.). 

It provides a general amnesty for deserters as well as draft evaders, and it is unconditional.

Amnesty opponents have introduced resolutions in Congress to prohibit amnesty for 

draft evaders and armed forces deserters. Rep. Garmatz (D-Md.) introduced H.R. Con. 

Res. 526, 92d Cong., 2d Sess. (1972), and 17 other Congressmen have introduced identical 

or similar measures. The resolution provides :

“Th at it is the sense of Congress that no pardon, reprieve, or amnesty be enacted 

by the Congress or exercised by the President with respect to persons who (1) are in 

violation of the Military Selective Service Act because of their refusal to register for 

the draft and/o r their refusal to be inducted, or (2) being a member of the Armed 

Forces, fled to a foreign country to avoid fur the r military service in violation of the 

Uniform Code of Military Justice.”

8

 Robertson, The Debate Among American International Lawyers About the Vietnam

War, 46 Texas L. Rev. 898. 913 (1968).

10 Senator Paul Fannin is opposed to amnesty because exiles “have turned the ir backs 

on their country.” Letter from Sena tor Paul Fannin (R-Ariz.) to William Wick, Jan. 24, 

1972. on file in the editorial offices of the Buffalo Law Review. 11 Friedman. Conscription and the Constitution: The Original Understanding. 67 Mich. L. Rev. 1493 (1969).

“ The analogy between the militia system and conscription was drawn in Arver v. 

United States, 245 U.S. 366, 379-80 (1917). However, Friedman cites the following 

distinguishing characteristics of th e militia system :

“ (11 the primary compulsory aspect of the militia was the requirement to tr ai n; 

(2) the militia was fundamentally of defensive force; (3) continuous service was 

reoulred solely during period of emergency; (4) service outside the colony was for 

outcasts only; and (5) the trend was away from compulsion in the years preceding 

the Revolution.” Friedman, supra note 11, a t 1506. 13 Friedman, supra note 11, at 1514. Even Edmund Randolph. Governor of Virginia, 

was opposed to conscription. Randolph expressed the views of Fed eralist delegates who 

wished to concentrate power in the federal government, but even he felt that conscription “stretched the strin gs of government too violently to be adopted.” Id. at 1513. u

It. at 1519.

15 Arver v. United States, 245 U.S. 366, 385 (1917).
642

prevailing view in Congress, however, was th at the federal government did not 

have the power to conscript, and the proposal was d efeated.19

In the midst of the Civil War, the first American dra ft law was passed 17 The 

first American dra ft resistance occurred shortly thereafter. Although the Act 

stip ulated t ha t a drafted man could hire a s ubstitute or literally buy his way out 

of the draft, 18 many men could no t afford to purchase th eir way o ut of forced service. As a result, riots again st the dra ft occurred throug hou t the country, with the 

largest protest in New York City causing 1,200 dea ths. 19 In addition, some stat e 

and local governments supported th e citizens’ opposition to the new conscription 

la w .20

The m ost popular means of opposing the draft, however, was dra ft evasion. It 

was so popular th at a new word—“skedadling”—was c reated to describe it. New 

towns were built in Canada to accommodate thousa nds of skedadlers.” 21

In April, 1865, the dra ft law expired and conscription was not used again for 

more th an half a centu ry. In 1917, United States entry into World War I prom pted 

a government proposal to conscript again. Even thou gh war had alread y been declared on Germany, opposition to the dra ft was vocal. Speaker of the House 

Champ Clark proclaimed:

“I protest w ith all my hear t and mind and soul again st having the slur of being 

a conscript placed upon the men of Missouri. In the estimation of Missourians, 

there is precious little difference between a conscript and a co nv ict.22

Nevertheless, the Selective Service Act was passed on May 18, 1917.23 The draft 

again lasted only as long as the war, however, an d througho ut th e 1920’s and 1930’s 

proposals for conscription were consistently defeated in Con gress.24

In 1940, after the Nazis had defeated the French, Congress adopted a draft — 

the first peacetime draft in American hi stor y. 25 The dra ft was extended three tim es 

following the war, bu t it finally expired on March 31, 1947. Conscription was reintroduced sixteen m onths later when Congress passed the Selective Service Act of 

1948. In 1951, the tit le of the Act was changed to “The Universal Military Training

M Friedm an, supra note 11, at 1514. The debate over the draft proposal In 1814 was the occasion for one of Daniel Webster s 

famous speeches against the draft. An excerpt is worth noting :

Is this, sir, consistent with the character of a free governm ent? Is this civil liberty? 

Is thi s the real charact er of our Constitution ? No, sir, indeed it is not. The Constitution 

is libelled, foully libelled. The people of this country have not established for themselves such a fabric of despotism. They have not purchased at a vast expense of their 

own trea sure and the ir own blood a Magna Charta to be slaves. Where is it writ ten in 

the Constitution . . . th at you may take children from their parents, and pare nts from 

their children, and compel them to fight the battles of any war in which the folly or 

the wickedness of government may engage it? 14 The Writings and Speeches of Daniel 

Webster 61 (1903).

» Act of Mar. 8,1863, ch. 75,12 Stat. 731.

» Id. a t § 13, 12 Stat. 733. , . x, , , The substitution option caused one histo rian to conclude th at the draft law was 

not a conscription bill in any general sen se; it was merely a piece of class legislation 

designed, even in the las t resort, merely to stim ulate mercenary enlistments and to 

match the rich man’s dollars with the poor man’s life.’’ 1 F. Shannon, The Organization 

and Administration of the Union Army, 1861—1865, a t 308 (1928).

39 Friedman, supra note 11, at 1545. , , » The state of Delaware and the city of Troy, New York, for example, passed laws 

authorizing the local government to pay the commutation fee for residents, and the 

Governor of Massachusetts asked the Secretary of War to suspend operation of the 

draft in th at state for six or seven weeks because a sufficient number of subs titutes 

could not be found. Id. « 2 F. Shannon, supra note 18, at 184-85. The tot al number of "skedadlers’’ may have 

been as high as 200,000. Id. « , v The Supreme Court did not hear an.v cases challenging the Civil War draft law, but 

Chief Justice Roger Taney did prepare an outline of an opinion declaring the lawr to be 

unco nstitutional. Friedman, supra note 11 at 1546.

A strange case did come before the Pennsylvania Supreme Court on the draft law, 

however. In Kneedler v. Lane, 45 Pa. 238 (1863), three men sued the local enrolling 

board to enjoin the board from enforcing the conscription law. On November 9, 1863 , 

the court announced in a 3—2 decision th at the law was unco nstitutional, and the injunctions were issued. The Chief Justice ’s term expired on December 12, 1863, however, 

and the Chief Justice (who had voted with the majority) was replaced by a man 

named David Agnew, who favored the draft. The government moved to vacate the 

injunctions before the Agnew court, and on Jan uary 16, 1864, the cou rt’s initial order 

was vacated by a predictable 3—2 margin. Friedman, supra note 11. at 1548-49.

23 H. Peterson & G. Fite, Opponents of War, 1917—1918, at 22 (1957).

” 40 Stat. 76 (1917). The Act was formally titled “An Act to authorize the President 

to Increase temporarily the Military Establishment of the United States.” Id.

24 Friedman, supra note 11. a t 1552. 25 54 Stat. 885 (1940). This act was also upheld by the courts. See, e.p.. Tatum v. 

United States, 146 F.2d 406 (9th Clr. 1944) ; United States v. Herling, 120 F.2d 236 

(2nd Clr. 1941). It is noteworthy that the Congressman who introduced the 1940 draft bill made 

it clear th at the act was "not an attempt to establish a perm anent policy in the United 

States." Glllam, The Peacetime Draft. 57 Yale Rev. 495, 502 (1968).
643

and Service Act,” and from 1951 to 1971 the dra ft was extended by Congress 

every four ye ar s. 28 In 1971, the draft was extended for two years.

Thus, American conscription is a modern institution. During the first 150 

years of the nation’s history, draft laws were in effect for only four years. Since 

World War II, however, Congress has maintained the draft.27

B. The Modern Draft: Involuntary Servitude Unfairly Administered

The reason our Constitution-makers did not even consider federal conscription 

is a simple one. As Senator Mark Hatfield pu t it, “[cjonscription is involuntary 

servitude. It is complete usurpation by the Government of an individual’s 

freedom of choice.” 26

Originally conscription was int itu ted only while America participated in a 

declared war,28 today, the draft has come to ju stify itself in the name of “natio nal 

security.” 30 Regardless of the justifications, however, one fact remains: conscription is involuntary servitude.

Realizing the totalitarian nature of conscription per se, it is noteworthy th at 

even the administration of the d raft in the United States is unjust. Administrative 

inequities serve to exacerbate the inheren t injustice of conscription.

Local dr aft boards are the hea rt of the Selective Service System, and the boards 

are also the System’s majo r weakness. Board members are normally retireme nt 

age, middle-class, and conservative.31 Minority groups are so poorly represente d 

on d raft boards th at it is misleading to use th e term “rep resented.” 32 T he compo­ sition of th e local boards is n ot a peripheral concern, because the boards operate 

with vast discretion and low public visibility. Abuses occur freq uently.33 A categorization of abuses would require a separate article, bu t the most prominent 

merit mention.

First, the composition and autonomy of the boards insure th at only a small 

percentage of Conscientious Objector applicants will actually be granted CO 

classifications.34 As one commentator noted:

“Since most local boards considered applying for a CO classification to be no 

better tha n burning one’s dra ft card, the y constan tly denied CO requests and 

subse quent appeals. Over 50% of th e w ar resisters in C anad a might not have gone 

there had draft boards even bothered to abide by the original Seeger decision.” 38

28 I t is no ac ci de nt th a t th e d ra ft Is rene we d in an od d-nu mbe red ye ar. The re ar e 

nei th er C on gres sio na l nor P re si den ti al e lectio ns In o dd -num be red ye ars.

27 T he ra ti onal e fo r re ta in in g th e d ra ft In th e de cade s follo wing W orld W ar II ha s 

com e un de r fr eq uent at ta ck . One co m m en ta to r ha s ar gu ed th a t th e d ra ft has bee n detr im en ta l to our s ec urity :

“T he fa ct is th e United S ta te s is th e m os t po wer fu l sta te in th e wh ole his to ry of 

th e world, bo th in an ab so lu te sense , an d in re la tion to co nt em po ra ry st ate s. The re 

Is no th re a t to us . no ch alle ng e to ou r nat io nal In te re st . Yet, In or de r to “d ef en d” ou rselve s, 

we are co mmitt ed to a syste m of “ na tion al se cu ri ty ,” in trod uc ed In 1947, which ha s come 

to co nt ro l th e nat io nal pri ori ties an d mu ch of th e nat io nal eco nom y. In th e process we 

ha ve lo st ov er 100,0 00 American li v e s; we ha ve ca us ed th e des truct io n of a t le as t 

tw o million an d pe rh ap s ns man y as fo ur mill ion no n- American s . . . . W hat kind of 

de fens e policy ca n th a t be fo r th e na tion wh os e ar se nal eq ua ls th a t of m os t th e re st 

of th e w or ld ?” T. Reeve s & K. He ss, Th e End of th e D ra ft 128 (1 97 0) .

28 H atfie ld, The D ra ft Sh ou ld Be Abo lis he d, Sat Eve. Pos t, Ju ly 1, 196 7, a t 12. 29 Mr. Ju st ic e M ur ph y em ph as ized th e im po rtan ce of to le ra ti n g co ns cr ip tion on ly in 

tim es o f g ra ve nat io nal du re ss in a 1944 di ss en ting op inion :

“T hi s case pre se nts an oth er as pe ct of th e pe rp le xi ng pro blem of re co nc ili ng ba sic 

pr in ci pl es of ju st ic e w ith m il itary ne eds in w ar tim e. In div id ual ri ghts ha ve bee n reco gniz ed by our ju risp ru den ce on ly aft er long an d co stly st ru gg le s. Th ey shou ld not be 

st ru ck down by an yth in g less th an th e gra ves t ne ce ssity . We as se nt to 't h e ir te m po ra ry 

susp en sion on ly to th e exte nt th a t th ey co nst itute a cl ea r an d pre se nt da ng er to th e 

effective pr os ec ut io n of th e w ar an d on ly as a mea ns of pre se rv in g th os e ri ghts un di ­

minish ed fo r ou rselve s an d fu tu re gen er at io ns. ” Fal bo v. Uni ted Sta te s, 320 U.S. 549, 

555—56 (1944) (d is se nting op in io n) .

•" Sen at or Rob er t Dole (R -K an .) st ate d th a t th e 1971 Se lective Se rvice Act wa s 

“i nd ispe ns ab le to th e m ai nt en an ce of ou r se cu rity an d th e co nd uc t of ou r fo reign po lic y.” 

117 Cong. Rec. 14683 (d ai ly e d. Se pt. 21. 19 71 ).

31 P . Stev en s . If T hi s Be Tre as on 60 (1 97 0) . Th e av er ag e ag e of a d ra ft bo ard memb er 

is 63.6 ye ar s. Id .

32 O f th e ro ug hl y 16,0 00 bo ard me mb ers in th e Uni te d Sta te s, 1.3% ar e blacks, 

0.8 % ar e Puer to Ri ca ns , 0.7% are O rien ta ls, an d 0.1% ar e America n In dia ns. Id. 33 T hat such ab us es are in to le ra bl e wh en a bo ar d li te ra lly ha s th e life of th e re g is tr an t 

in it s han ds is obvio us. Se e W alsh v. Lo cal Bd. No. 10, 305 F. Supp. 1274 (S.D .N.Y . 

19 69 ).

M R. W illiams, eupra no te 2. a t 41.

For m er d ra ft bo ar d me mb er Ja m es Bailey cited an ex am ple of th e bi as to w ar d CO 

ap pl ic at io ns . A yo uth se ek ing CO sta tu s who was Catho lic w as to ld by a bo ar d me mb er. 

“W ell, I'm a Catho lic too an d I ’m not a co ns cien tiou s ob jector . Are you a bett er Catho lic 

th an me? " W as hi ng to n Pos t, Se pt. 8, 1972, nt 3, col. 2.

» Id.
644

Second, the procedures of the System do not meet essential stan dards of fairness under the due process clause: repre senta tion by atto rneys has been forbidden ; 38 neither local boards nor appeal boards are required to give reasons 

for th eir de cisions; 37 there is no opportun ity to confront or cross-examine adverse 

witnesses;38 and it is doubtful th at draft board hearings are permitted at a reasonable time.39 These defects existed prior to the Vietnam war, bu t the demands 

of the w ar caused the System to stagger “with r esu ltant secretiveness and indeed 

recalcitrance. A ‘fair hearing’ in most boards became an una ttai nab le illusory 

concept of the law makers.” 40

Third, the System has been utilized to accomplish objectives other than inducting young men into the army. The draft has been used to “channel” men into 

life styles determined by the government,41 and it has been used as a weapon 

to stifle dissent.42

Finally, of course, the dra ft has been used to provide manpower for American 

intervention in a foreign conflict. It was the dra ft th at made the Vietnam war 

possible.43

II. T H E W AR IN V IE TN A M

A. United States Entry and Conduct in the War: Illegal and Unconstitutional

Three compelling arguments th at United States involvement in the war is 

illegal require brief examination: that the United States has violated international 

law in intervening in Vietnam; th at the United States has violated the Con stitution in interv ening in Vietnam; and th at the United States has violated international law in its conduct of the war.

Firs t, there is evidence th at the United States has violated tre aty obligations 

and international law. The U nite d States is a pa rty to a number of non-aggression 

treaties,44 and also has ratified the Agreement of London, which stipu lates th at 

“planning, preparation, initiation, or waging of war of aggression, or a war in 

violation of international treaties, agreements, or assurances” is criminal.45

Furth ermore, this natio n is a party to the U nited Nations Cha rter: “All members 

shall refrain in their in ternational relations from the threat or use of force against 

the territorial integrity or political independence of any state. . . . ” 48 The 

United States’ intervention in Vietnam clearly contravenes these relevant provisions of international law.

» 32 C.F.R. S 1624.1 (b) (1949). « See id. §5 1623.4, 1624.2(d), 1625.4, 1626.27(a), 1626.31(b) (1949). 

m See id. §5 1623.1(b). 1624.2(b) (1949). 39 See id. §§ 1624.1,1624.2 (1949). As one commentator observed : “It is not likely th at a favorable decision could come from a relu ctan tly performed belated Interview which would require from the local board a formal reversal of Its previous formal classification, Implying an admission that such previous action was 

unjustified.” Sllard, Some Comments on the Local Board Memorandum No. i l PreClassification Interview, 2 S.S.L.R. 4001, 4004 (1969). 40 Hansen, The Basis-in-Fact Test in Judicial Review of Selective Service Classifications: A Critical Analysis, 37 Brooklyn L. Rev. 453, 470 (1971). A member of the Bethesda-Chevy Chase, Md., Local Board No. 54 recentlj’ wrote a let ter to the board president urging that reg istrants be permitted representation by atto rney s at board hearings. Board member James Bailey wrote th at providing counsel was “the only way to correct the shocking reputatio n we have for lack of fairness," and that lawyers were necessary because “the horrors we Inflict on young men in wha t we dare to call a hearing are so well known." Bailey also told the board president th at he was appealing for representation for registrants !

‘ln the name of all our neighbors’ sons 

we have sent to be killed or maimed Illegally.” Bailey was suspended from the board by the national director of the Selective Service System thre e months aft er writing the lette r. Draft Unit Critic Is Suspended, Washington 

Post. Sept. 8, 1972, § C, nt 1, col. 8. 41 If the government deems it desirable to Increase the number of teachers, for ex­ ample, It simply defers teachers from the draft. Thus, the System Is an Ideal mechanism for “channeling" men Into jobs deemed desirable by the state. 43 The most famous Incidents concerning the dra ft and dissent occurred In 1965 and 1966 when Selective Service Director Hershey decided to use his position to unilaterally stop anti-war demonstrations. At that time he stated, *‘[r]eclasslflcatlon Is quicker at stopping sit-ins than some indictment th at takes effect six months lat er . . . and we haven’t heard of any sit-ins since the one in Ann Arbor.” New Republic, Dec. 25,

1965. a t 7. _ ,

43 As former Senator Ern est Gruenlng observed, “It was the dra ft th at made It possible for our leaders to deceive the American people Into the longest, costliest, least justifiable and most unpopular war in our history.” 117 Cong. Rec. 14684 (dally ed. 

Sept. 21.1 971). , , , . An auth or concurred : “Undeclared and unpopular wars can never be fought 10,000 miles form a nation's borders without a means of forcing men to go, a system of enslave­ ment whereby young men are forced .to serve the sta te and do Its dlr tj’ work. . . .

R. Williams, supra note 2. a t 4. „ „ „ . . „ ,

41 Pan American Conference. 49 Stat. 3363 (1933). T.S. No. 906: Kellog-Brinnd Pact, 46 Stat. 2343 (1928), T.S. No. 796; Hague Conventions. 36 Sta t. 2199 (1907), T.S. 

No. 5 36; 32 S tat. 1779 (1899), T.S. No. 392. , , x

 „ « Agreement of London, 59 Stnt. 1544 (1945). E.A.S. No. 472 : Judgm ent A Sentences of the Internatio nal Military Tribunal at Nuremburg (Gov’t Printin g Office 1947).

43 U.N. Cha rter art . 2, para. 3.
645

Article IV of the Southeast Asia Defense Tre aty notes th at a member may 

“act to meet the common danger in accordance with its constitutional processes.” 47

Even assuming that an internal struggle in a small natio n thousands of miles 

from the United States somehow presents a “common danger” to the world’s 

most powerful nation, America has not acted in “ accordance with its constitu tional 

processes.”

Thus, the second argument arises: United States intervention in Vietnam is 

unconstitutional. The power of Congress to declare war is absolute.48 The position 

of Commander-in-Chief was never intended to confer the power to declare war,4

’ 

and the Supreme Court has consistently held that under the separation of powers 

doctrine only Congress can declare w ar.50 Congress has not declared war on No rth 

Vietnam. This is an “executive” war which directly conflicts with the United 

States Constitution.51

The government has advanced “justifications” for the war, bu t they are more 

notable for their numbers than their merit.52 These “justifications” have been 

analyzed elsewhere,53 but the two most substan tial arguments should be noted.

First, the executive branch has claimed th at Congressional adoption of the 

Tonkin Gulf Resolution was the “functional equivalent” of a declaration of 

war.54 The history of the resolution belies th at view. In 1964 President Johnson 

emphasized th at “our purpose is peace . . . the United States seeks no wider 

war.” 55 Senators who sponsored the resolution also made it clear th at it was not a 

declaration of war.58 In addition, there are stron g indications th at Congress was 

deceived by the executive branch in the portray al of the Tonkin incident.57

Hence, even if it is supposed that Congress intended to authorize war, its authorization would be void. Most important, however, is the fact t ha t a resolution 

which delegated Congress’ power to declare war to the President would be unconstitutio nal. Congress m ay not delegate away its Constitutional powers.58

Second, the executive bran ch contends that Congressional appropriation s for 

the armed forces constitute the equivalent of a declaration of war. However, many 

Congressmen who opposed the war nevertheless felt compelled to provide su ppo rt

« S ou th ea st Asin Co lle cti ve T re at y, Se pt. 8, 195 4, [1 95 5] 6 U.S .T. 81, 83, T. I.A .S. 

No. 3170.

« U.S. Const , n rt . I, § 8, cl. 11.

48 “ Th e Pre si den t Is to be comman de r-i n-ch lef of th e ar m y an d na vy of th e Uni ted 

Sta te s. In th is resp ec t, his auth ori ty wo uld be no m in al ly th e same w ith th a t of th e king 

of G re at B ri ta in , but in su bs tanc e, mu ch In fe rior to it. I t wo uld am ou nt to no th in g 

mo re th an th e suprem e comm and an d di re ct io n of th e m ilitar y an d na val force s, as firs t 

Gen ernl an d ad m ir al of th e Co nfed erac y : while th a t of th e B ri ti sh ki ng ex tend s to th e 

de cla rin g of wnr an d to th e raining nnd re gu la tin g of fleets an d nr mles— al l of wh ich 

th e C onst itution un de r co ns id er at io n, wo uld ap per ta in to th e le gis la tu re .” T he F eder al ist

No. 69, a t 448 (M odern L ib ra ry ed. 1941) (A. H am ilto n).

60 E x pa rte M illigan, 71 U.S . (4 W all.) 2 (186 6) ; Th e Trize Cases , 67 U.S. (2 Bl ac k) 

635. 668 (186 2) ; Th e Am elia. 5 U.S. (1 Cra nc h) 1, 28 (1 80 1) . Se e also Yo un gstow n 

Sh eet & Tube Co. v. Sa wy er, 343 U.S. 579 (1 95 2) .

61 “ It is no more th an a usu rp at io n by th e Exe cu tive of th e po we r po ssessed on ly 

by Co ng ress.” Fau lk ne r, Th e W ar in V ie tn am : In It Co nn tit ut io na lT , 56 Geo. L.J. 1132 , 

113 6 (1 96 8) .

Mr. Ju st ic e Sto ry ’s an al ysi s in di ca te s th a t th is nati on’s fo un de rs we re at te m pti ng 

to av oid Vietnam s when th ey in sist ed th a t Co ng ress ha ve th e po we r to de clare war. 

Sto ry eve n prop osed a sy stem whe reby tw o-t hlr ds co nc ur re nc e of th e Hou se an d th e 

Sen at e wo uld be re qu ire d to de clare w ar . to In su re th a t it "be dif ficult In a repu blic 

to de clare w a r; bu t no t to mak e peac e.” J. Stor y, Com men ta ries on th e Con st itut io n

op th e Unit ed State s 89 -9 0 (2d ed. 18 51 ).

BS E ight ee n go ve rn m en t "j ust if ic at io ns” ar e an alyz ed by Law renc e Velvel in a com ­

preh en siv e ar ti cle on th e const ituti onali ty of th e wn r. an d al l ar e qu ite vu lnerable. ' 

Velvel, Th e W ar in Vie tn am : Vnc on nt itut ia na l, Ju nt ieia hl e, an d Ju ri nd ic tio na llg A tt a c k ­

able. 16 Kan. L. Rev. 449 (1 96 8) .

63 Id. Se e alno Fau lk ne r, nup ra no te 51.

M Velve l, nu pra n ot e 52, a t 4 72 -7 3.

« 110 Cong. Rec. 14 80 1-02 (d ai ly ed. Ju ne 23, 19 64 ).

M Sen at or B re w st er asked Sen at or F ulb ri ght (t he Sen at e sp on so r of th e re so lu tion) 

If th e re so lu tion wo uld ap pr ov e “t he la nd in g of la rg e America n ar m ie s in Vietnam or 

Chi na .” Sen at or Fulb ri ght replied : "T he re is no th in g In th e re so lu tion , as I re ad It. 

th a t co nt em pl at es it. I ag re e with th e Sen at or th a t It Is th e la st th in g we wo uld w an t 

to do.” Velvel. nupra no te 52. a t 473.

w “ Th e om iss ions nn d dis to rt io ns of fa ct du ri ng th e 1964 hea ri ng s wer e so freq ue nt , 

so sk ill fu l, th a t one m us t su sp ec t so m et hi ng mo re si nis te r th an ho ne st m is under st an din g 

or ac ci de nt al ve rb al va gu en es s . . . . Decep tio n is de ce ption, be It del ib er at e or unw itting, 

an d th e fa ct s w arr an t co nv ictio n of th e Jo hn so n adm in is tr at io n on th is co un t— bo th 

fo r Its re ci ta tion of th e fa cts of th e Aug us t 4 In ci de nt to Co ng ress In 196 4. an d fo r Its 

use th ere aft er of th e Ton kin Gulf Res ol ut io n. ” J. Gouldf.n, T ru th I s th e F ir st Casualty : 

T he Gul p op T on ki n Aff ai r— I ll us ion and R ea lit y 19 (1 96 9) .

M Velvel. nupra no te 52, nt 478.
646

for troops already in Vie tna m.89 Furthermore, the appropriations justification 

conflicts with a Supreme Court ruling that explicit authorization is required in 

cases where executive action is of dubious constitutionality to insure “careful 

and purposeful consideration by those responsible fcr enacting and implementing 

our laws. Wthout explicit action by lawmakers, decisions of great constitutional 

import and effect would be relegated by default to administrators who, under our 

system of government, are not endowed with any authority to decide them.” 80

Thus, logical analysis compels the conclusion that United States intervention 

in Vietnam is unconstitutional, even thoug h the Supreme Court has not acted on 

the failure of the executive branch to abide by the Con stit utio n.81

The third contention of American illegal action in Vietnam concerns the violation of the laws of land warfare. The United States is a party to treaties regulating the conduct of war ,82 and the continued bombings of North Vietnam which 

result in death to civilians are violations of those treaties. Other American activities, such as “search and destroy” missions, are conceivable violations as well. 

These violations impinge directly on individual soldiers, since the soldier is 

responsible for his actions even if he is ordered to commit illegal acts by a superior. 83 Where a common design is established, all persons implementing the common design are guilty of war crimes: “The United States by committing war 

crimes in Vietnam makes all participating soldiers guilty under international 

law.” 64

B. Non-Legal Arguments Against United States Involvement in the War

The non-legal arguments against American participation in the war in Vietnam 

are too well-known to require elaboration: that there was no valid reason for 

American involvement since no vital interests were in jeo pa rd y;88 that the United 

States intervened on the “wrong” side of a civil war, supporting the colonialists 

instead of those seeking freedom and independence;88 that the United States had 

been fighting for a corrupt South Vietnamese governm ent;87 th at the human costs 

of the war have been only peripheral concerns of United States policy make rs; 88

that the war is a racist war; that it is an immoral war: that it is simply “wrong.” 89

In fact, at least two United States Senators have termed the war the biggest 

mistake in American h istory .70

“ Senator Richard Russell, In his opening statement on the Supplemental Appropriations Bill on February 16, 1966, st at ed : “It Is Important th at the Senate and the Nation 

clearly recognize this bill for what It Is : an authorization of defense appropriations. It 

could no t properly be considered as determ ining foreign policy, as ratifyin g decisions made 

In the past, or as endorsing new commitments.” Malawer, The Vietnam War Under the

Constitution: Legal Issues Involved in the United States Military Involvem ent in Vietnam, 31 U. P itt. L. Rev. 205, 230 (1969).

m Greene v. McElroy, 360 U.S. 474, 507 (1959).

et The argum ent concerning the justiciability of the constitutional challenge to the 

war cannot be made within the confines of this article. See Velvel, supra note 52, at 480.

es Geneva Convention for the Amelioration of the Condition of the Wounded and Sick 

In Armed Forces In the Field, Aug. 12, 1949 [1955] 6 U.S.T. 3114, T.I.A.S. No. 3362; 

Convention for the Pacific Settlemen t of Internatio nal Disputes, Oct. 18, 1907, 36 Stat.

2199 (1910), T.S. No. 536. 03 O’Brien, Selective Conscientious Objection and Internationa l Law, 56 Geo. L.J. 

1080, 1087-89 (1968). A soldier can be tried for violations of the laws of warfare even 

though he is acting within domestic law. The Nuremburg Trial, 6 F.R.D. 69, 110-11 

(1946).

•* Faulkner, supra note 51, a t 1142.

’'“Sena tor Mike Mansfield (D-Mont.) : “What for? Why? We will never be able to 

answer th at question to our satisfaction, and we know it.” 117 Cong. Rec. 15562 (dally 

ed. Sept. 30, 1971).

m Senator Vance Hartke (D-Ind.): “We must realize th at President Nixon’s position 

Is not a passing fancy. For 17 years he has tried to get the United States to shore up 

the Frenc h colony in Vietnam or, failin g tha t, to establish our own in South Vietnam.” 

Td. at 15578.

97 Senator Birch Bayh (D-Ind.) : “There may be some Members of this body who know 

how to explain to their constitue nts why, in the nnme of the Vietnamese righ t of selfdetermination, we should continue to support a tyra nt who Is now destroying that 

right. I do n ot.” Id. a t 15568.

98 Senator Fu lbrig ht: “Most of all—and In this respect the Pentagon papers have 

been most revealing—our policymakers have given short shr ift to the human costs and 

consequences of the war both for the American people and the people of Indochina.” Id. at 15575.

TM Senator Pell (D-R.I.): “ [I ]t is tragically clear that this is a wrong war, fought 

in the wrong place at the wrong time, a war in which this Nation should never have 

become involved." Id. at 15576-77. A Harris Survey in 1971 reported th at “58 percent 

[of those Americans polled in a representative survey] considered it morally wrong for 

the U.S. to be fighting in Vietnam.” War Debate, 31 Fncts on File 291 (1971). 70 Senator Charles Percy (R-Ill.) : “Mr. President, I will repeat, first—although I 

said this before—th e Vietnam war is the worst single mistake the United States of 

America has ever made.” Id. a t 15564.

Senator Fran k Moss (D-Utah) : “The tragic war in Sou theast Asia has been the 

most disastrous cha pter in American history.” Id. at 15573.
647

The validity of the foregoing arguments cannot be debated within the confines 

of this article. It is sufficient to note th at many of the arguments have been 

accepted by a majority of Americans, 71 as well as by dra ft evaders and deserters.72

n i. su m m a r y: c o n sc r ip tio n and t h e war

Strong arguments indicate th at the draft is n ot congruent w ith the co nstitional 

concepts, th at it is tota lita rian, and th at it is admin istered arbirtarily and unjustly. 

Equally persuasive arguments indicate th at United States military involvement 

in Vietnam is illegal under internatio nal law, illegal under domestic law (because it 

is unconstitutional), and illegal under internatio nal rules of warfare. Fu rth ermore, similarly potent arguments indicate th at both the draft and the war are 

immoral for a civilized people.

IV . T H E Q U E ST IO N O F AM N ESTY

A. The Rationale for Unconditional, Universal Amnesty

With such an array of impressive argu men ts dictati ng against one’s participation—particularly forced partici pation—in the war, it is not surprising th at 

there a re thousand s of Americans in exile who refused to fight. Nor is it surprising 

that the question of a mnesty for these exiles has been raised in public discussion.

The autho rity to g ran t amne sty is vested in both th e President and Congress,73

bu t virtually all amnesties in American history have been proclaimed by the 

President.74 George Washington granted the first amnesty in 1795,73 and twelve 

Presidents since th at time have gran ted amnesties.78 Thus, as President Nixon 

noted, 77 America has a tradition of granting amnesties following wars and insurrections. An amnesty for Vietnam dra ft evaders and deserters would be only a 

continuation of t ha t tradition .78 However, the case for amnesty for the Vietnam 

exiles rests on stronger ground tha n mere precedent.

First, dra ft evaders were forced to act on their conviction th at the dra ft was 

wrong—a conviction, as we have seen, shared by the men who founded this 

natio n. If the unjus t infringement on personal liberty is ever justified, it certainly 

was n ot justified to provide cannon fodder for Vietnam. To punish an individual 

for refusing to obey an unjust law will only compound the cruelties caused by 

the war in Vietnam.

Second, the exiles also were forced to act on their convictions th at the war 

was wrong. Most Americans—including public officials—did not have to “vote”

7 1 A 1970 H arr is poll re ve aled th a t American s pre fe rr ed te rm in ating U ni te d Sta te s 

Invo lvem en t in th e w ar over de cl ar in g w ar by a 2 to 1 mar gi n. L. H arr is & Associat es, 

Th e H arr is Su rvey Yearb ook of Pub lic Op inion 197 0 114 (1 97 1) [h ere in aft er cited as 

Sur ve y] .

7 3 Th e co mmen ts of th is d ra ft re sl st er are ty p ic al: “ [T ]h ere we ar e In Vietnam — as 

in a few oth er pla ces, su pp or ting a to ta ll y co rr upt go ve rn men t. A to ta ll y un de m oc ra tic 

go ve rn men t. We put It In powe r. An d we’re do ing It to ho ld ba ck th e Co mmun ists. 

Be cause th ey ’re un de m oc ra tic . Bec au se th ey ’re re pr es sive . An d ho w ar e we su pp or ting 

th is co rr upt, re pr es sive go ve rn m en t? By bur ni ng hu m an be ings w ith nap al m .” P. St ev en s, 

su pr a no te 31, a t 1 20 -21.

73 P re si den ti al auth o ri ty to g ra n t am ne st ie s an d ge ne ra l par do ns is de riv ed fro m th e

C on st itut io n. U.S. Co nst, art . II , § 2. Co ng ress may also issu e am n esti e s: “A lth ou gh 

th e Con st itut io n ve sts ,n th e P re si den t “po we r to g ra n t re pr ie ve s an d pa rd on s fo r offe nses 

ngai nst th e Uni te d S ta te s . . .” th is po we r has ne ve r bee n he ld to ta ke from Co ngres s 

th e po we r to pa ss act s of ge ne ra l am ne st y Br ow n v. W alke r, 161 U.S. 591, 601

(1 89 6) .

74 I n 189 8. Co ng ress pa ssed an am ne st y act wh ich rem ov ed th e fin al di sa bi lities 

fro m f or m er C on fe de ra te soldiers. 30 S ta t. 432.

73 A “f ull, fre e, an d en ti re pa rd on to al l pe rs on s” part ic ip ati ng in th e 179 5 Whiskey 

Re bellio n wa s gra nte d on Ju ly 10. 179 5. 1 J. Richa rdso n, Com pilatio n of th e Me ssa ges 

an d P ap er s of the P re si den ts 173 (1 89 7) .

w /d . 29 3- 94 (A da ms) : id. 413 (J ef fe rs on ) ; 2 id. 497. 499 . 528 (M ad ison ) ; 3 id. 10 62 - 

63 (J ac ks on ) : 8 id. 34 14 -16, 3419 (L in co ln ) : id. 35 08 -1 0, 9 id. 3895 (A. Jo hnso n) ; 

10 id. 4189 (G ra nt) : 15 id. 66 90 -9 2 (T. Ro os ev elt) ; 18 id. 83 17 -1 9 (W ilso n) . See also

43 S ta t. 194 0 (1 92 4) (C oo lidg e) ; 48 Sta t. 1725 (193 3) (F . R oose vel t) : 11 Fe d. Reg. 

14645 (1 94 6) , 12 Fe d. Reg. 8731 (1 94 7) , 17 Fed. Reg. 11833 (195 2) (T ru m an ).

77 N ewsweek , Ja n. 17, 1972, a t 19. Ho we ve r. Pre si den t Nixon ha s stro ng ly in di ca te d 

th a t he wi ll no t follo w th e ackn ow led ge d tr aditio n. D ur in g th e P re si den ti al ca mpa ign of 

1972, th e Pre si den t In dica ted th a t “he st il l oppo sed am ne st y fo r U.S. m il itary des er te rs ." 

Th e Pre si den t sa id, “Th ose wh o chose to de se rt m us t pa y th e pen al ty th a t th ey ha ve 

ea rn ed .’’ N.Y. Times , Se pt. 24, 1972, at 47. col. 1.

78 M any American s ap par en tl y wo uld lik e to brea k w ith tr aditio n. A re ce nt Gal lu p Po ll 

In di ca ted th a t 60 pe rc en t of th e pu blic were opp ose d to unc ond itio na l am ne sty. N.Y. 

Tim es, Aug. 4, 1972, nt 26, col. 6.
648

with the ir lives on the legality and morality of participation in the war.78 The 

exiles, however, were forced to act on their opposition to the w ar—and t hey now 

face punishm ent if they retu rn to the United States. Such punishm ent should 

eith er be m eted out to all Americans who oppose the war, or to none.

Third, retaining sanctions against returning exiles constitu tes an un just selective 

enforcement of the dra ft law. It must be emphasized th at “alm ost every kid in 

this country is either a dra ft evader, a potentia l dra ft evader, or a failed draft 

evader.” 80 Most young men evade the dra ft without the fanfare accorded to 

those who go to Cana da—th ey avoid it “legally.” The number of ways to avoid 

the dra ft are legion,81 and range from artificially inducing high blood pressure to 

hunting the American eagle in Colorado.82 (It is a felony to h unt the American 

eagle, and convicted felons can not be drafted.) Doctors find illnesses,83 and lawyers 

find loopholes.84 Thus, if the spirit of the Selective Service Law were to be enforced, 

few young men would be seen walking American streets. The essential difference 

between the draft evader in exile and the dra ft evader in America is one of honesty: 

the man in exile refused to fake a disability and he refused to become a minister 

solely to avoid the draft, while the man in America cut corners and managed, 

somehow, to evade the draft “legally.” 83 In addition, large numbers of dra ft 

evaders and deserters are now being ignored by the government: the law itself is 

not equally enforced.86 To penalize the exile while hundreds of thousands of others 

subverted the law or escaped punishment because of arbitrary enforcement, is to 

punish for his honesty, n ot his crime.

Fourth, the United States forced young men into exile by presenting them with 

an insoluble dilemma: eithe r they violate the draft law or the y violate their consciences, inte rnational law, and the rules of war.87 The most logical, m ost humane, 

most conscionable course of action was to violate the Selective Service law .88

Th at course of action, however, was the one to which a legal sanction certainly attached, whereas violations of conscience, internatio nal law and the rules of war 

were not likely to result in punishment. A situation in which an individual is

79 I t is part ic ula rl y dif fic ult to under st an d how a S en at or co uld opp ose th e d ra ft , 

op pose th e w ar , an d ye t oppose am ne sty, such as Sen at or Ric ha rd Sc hw eike r (R -P a.) 

an d Sen at or Jo hn Tun ne y (D -C al.). L ett ers fro m Sen at or Ric ha rd Sc hw eike r an d Sen ato r Jo hn Tun ne y to W ill iam Wick, Ja n. 27, 1972 an d Ja n. 19, 1972 , on file in th e ed itor ia l 

offices of the Bu ffa lo La w Re vie w.

80 C om ments of a d ra ft ev ad er in P. St ev en s, su pr a no te 31, a t 229.

81 D on't quit college w hat ev er you do, or yo u’ll lose yo ur st udent de ferm en t. Nur se 

alon g th a t tr ic k an kle, make su re it’s st il l bad enou gh to kee p you out wh en you go 

fo r yo ur ph ys ical. Keep yo ur na me dow n on th e w ai ting li st fo r th e Gu ard, th e Re ser ve. 

Fin d a job in a co rp or at io n do ing de fense wo rk, ha ve them pu ll st ri ngs to ge t you th a t 

occ up at io na l de fe rm en t. Stu dy to beco me a m in is te r— you do n’t ac tu al ly ha ve to BE 

one. Fin d a psy chia tr is t wh o wi ll w ri te th e Golden L ett e r to yo ur d ra ft bo ar d sa ying 

you’re u nf it f or servi ce. Id. a t 36.

88 M ore extre m e metho ds h av e been emplo yed , ho we ver :

[E jv ery yea r a t le as t a few de sp er at e yo un g men slice off on e-ha lf of ei th er thum b, 

An d in New York a nine teen -y ea r-o ld sh ot hi m se lf in th e ri g h t fo ot w ith hi s .22 ca lib er 

rifle, sm as hi ng se ve ra l bon es. He will lim p fo r th e re st of his life, but feels it is a re as onable pr ic e to pa y fo r mak ing su re he do es n’t die figh tin g a w ar “t h a t do es n't accomplish 

anyth in g but sh oo t, bu rn , an d st arv e Vi etna mes e pea sa nts to dea th .” Id . a t 72 -73.

88 T he yo un g ha ve m as te re d th e a rt of be at in g th e d ra ft with med ical or ps ych ia tric 

excuses. Do ctors do not in vent dise as es but look extr a ha rd fo r di sa bi lities th a t di squ al ify th eir pat ie nts . L et te rs ar e not alway s ne ce ssary. Ma ny hea lthy re gis tr ants ha ve 

skippe d a do ct or ’s he lp an d st ill fake d th eir wa y to 4 -F or 1- Y st atu s. Tim e, Nov. 16, 

1970, a t 67.

84 L os An geles at to rn ey Da vid Ca plnn s ta te d : “W ithou t do ing anyth in g ill eg al or 

ex tral eg al , we ar e ab le to kee p 99 % of th e people who w al k in he re out of th e . . . dra ft . 

The re ar e th ousa nds of di sq ua lif yi ng ph ys ical an d m en ta l co nd iti on s, an d it’s a ra re 

case th a t som eon e does no t ha ve one of them . . . .” Newsweek, Nov. 9, 1970, a t 28.

85 Indiv id ual s es ca pi ng th e d ra ft by cutt in g co rn er s of te n re sp ec t th os e with th e 

co ur ag e to be hon es t an d go to Can ad a. “I th oug ht of go ing to Can ad a lik e my br ot he r, 

bu t I gu es s I ’m ju st no t . . . ns pr in ci pl ed as he is ," sa id one pe rson wh o evaded lega lly . 

F. St ev en s, supr a no te 31, nt 57.

88 “ Man y des er te rs , per ha ps n m aj or ity, ar e al re ad y be ing qu ie tly di sc ha rged , mos tly 

because many m ilitar y co mmands are un will in g to go th ro ug h co mplicated pr os ec ution 

pr oc ed ur es .” T ime. Ja n . 10 .1 97 2, a t 17.

87 F or som e th er e is a th ir d op tio n, wh ich ha s al re ad y bee n describ ed : ev ad in g th e 

dra ft “le ga lly ” in th e Uni te d Sta te s.

88 I f Se lective Se rvice law is vi ol at ed , on ly th e in di vi dua l suffe rs. If an in di vi du al goes 

to Vietnam , th e ch an ce s ar e gre at th a t he will in fli ct In ju ry an d suffering on nu merou s 

oth er people.
649

forced by the state to choose between undesirable, illegal alte rnative s should not 

be tole rate d in an advanced socie ty. 89

Fift h, many draft registrants were denied due process of law by the Selective 

Service System and cons eque ntly lost deferments as well as faith in the fairness 

of the System . To penalize exiles who were forced to leav e because of unfair or 

illegal actions of their draft boards is to punish individual citizens for the failures 

of the Selective Servic e System .

Sixth, ma ny exiles atte mp ted to receive a Conscientious Objecto r classification, 

but failed because (1) the draft board did not gra nt ma ny CO ’s or (2) the re gistran t, although passion ately opposed to the Vietnam war, was not opposed to all 

wars. To punch these exiles is also to punish for the failures of the Sys tem — a 

system which functioned to so narrowly proscribe the requisites for a CO classification tha t it was an unrealistic and normally unobta inab le option.

Seve nth, it is ironic that this nation proposes to punish the returnin g exiles 

who helped alte r public opinion and change the course of the war. Mo st exiles 

“ saw the light first” and voiced their opposition to the war lou dly and clear ly. 

Th ey vot ed for Lyn don Johnson, the peace cand idate. Some voted for Ric har d 

Nixon, the peace cand idate . Th ey mar ched and rallied. Th ey chan ged the course 

of the war, bu t not before the y had to “ vo te” on it with their own lives. The 

indiv iduals who first recognized the tragedy of Vietnam and tried to inform the 

public abo ut it should be welcomed home.99

Eighth, the trad itional reasons for gran ting am nesty were never more applicab le 

than they are now. Vietnam has p rovo ked and symbolized th e discord and disu nity 

of Americans during the past decade. The trad itio nal purpose of amnes ty is forgetfulness, to “ bur y the hatch et.” 91 We ma y never fully reco ver from the agony, 

the horror, the trag edy of Vietnam . But we will insure that we will never recover 

if we continue to impose criminal sanctions on Vietnam exiles who wish to retur n 

to the United State s.92

Finally , two distinct adv antages would accomp any the implementa tion of an 

amnesty for Vietnam exiles. First, some of the exiles ma y desire to retu rn to the 

United Sta tes if the y are free to do so. 93 There is an obvious adv antag e in at ­

temptin g to salvage the drain on talent and spirit caused by the dra ft and the 

war, for both will be needed in abun dance to begin anew afte r the war ends. In 

postw ar America, we will especially need those who were perceptive and independent enough to question patriotic shibboleths, and those who were honest enough 

to go to Canada or someplace else in exile. Second, the peop le’s lac k of fai th in 

their gove rnment and its institutions is probably the most significant problem 

confronting America today. An amn esty act would not sing ular ly reverse this 

trend. Howe ver, it would be an effective step towards informing citizens that it is 

possible for the American gove rnment to be just; it is possible for the gove rnm ent 

to ackn owle dge mistakes. For many citizens, both possibilities are ve ry much in 

doubt at the present time.

M A s form er Sen ator E rnest Gruening put I t : “ By now our young people know that our nation was lied Into this war. (Some of us 

knew’ It before the publication of the Pen tagon papers.) Quite prop erly [th ey] object to being compelled to fight in a war In whic h no vi ta l American Interes t Is In jeopardy, to kill people aga ins t whom they feel no grievance, par ticipa te In wh at has become a mass 

slaughte r of civilians, and maybe to get kille d or maimed in the process. Bu t If they refuse to go. if they follow their consciences, they face Imprisonment at hard labor 

with all the disastrous consequences for their future. “ This Is an infam ous dilemma to which no citizen of a people th at calls its elf ‘free’ 

should be su bje ct.” 11 7 Cong. Rec. 14684 (da ily ed. Sept. 21, 19 71 ).

90 Ev en more iron ic is the fa ct th at many exiles left the United State s because they 

felt they could not remain with out becoming revolution arie s. R. William s, supra note 

2. a t 39.

91 K note v. United States . 10 Ct. Cl. 397, 407 (187 4), aff’d. 95 U.S. 149 (18 77).

OT“ [A ]s these exile s dr ift back one by one over the years, are the divisions and anim osities of the Vietnam era to be kept ali ve by repeated prosecutions and jai lin gs for 

offenses long p as t?” Wicker, supra note 7.

93 A number of repo rts have indicated that the exil es have no desire to retu rn to the 

United States , e.g., Newsweek, Jan. 17, 1972 . nt 25. However, there are undoubtedly 

thousands who would like to return to America, and thousands more who would like to visit periodically. Perhap s the typ ica l view is art icu lated by the comments of this dr aft exile : "Ide ally wh at I’d like to see is an amnesty. I feel we all deser ve an amnesty. Th at wouldn’t mean th at I ’d go back to the United State s right away. I’d just like to 

have the rig ht to tra ve l across the border.” R. William s, supra note 2, at 195.

31- 658 0 — 74------43
650

B. An Analy sis of the Arguments Against Amnesty

Fou r principal objection s h ave been raised against an amnesty for dra ft evaders 

and armed forces deserters:

(1) It is argued that if amnesty is proclaimed, the Un ited States will no longer 

be able to field an arm y of dra ftees.94 Ther e are two responses to this argument. 

First, presuma bly those who cite this argument are concerned abo ut the effects 

of amnes ty on American armed forces. If so, the effect of an amnesty on draftees 

is of little consequence, because draftees have always cons tituted only a small 

percentage of the tot al armed forces act ive du ty perso nnel.95 Second, President 

Nixon has repeate dly stated his intention of estab lishing an all-v olun teer army,9® 

and while his commitm ent is in doub t, the via bilit y of an all-volunteer arm y is 

no t.97 Thus, the quality and qu an tity of the United Sta tes armed forces will not 

be diminished by an amnesty.

(2) Oppon ents of amnesty also contend that the desertion rate would soar if 

amnes ty were gra nted.98 Thi s argu men t is not persuasive either. First, the desertion rat e has already “ soared” — 354,427 soldiers hav e been classified as deserters 

between 1967 and 1971.99 Since the evidence indic ates that the dra ft and the war 

are largely responsible for the high desertion rate, it is not reasonable to assume 

that an amn esty would result in higher rates of desertion.100 Second, most act ive 

du ty personnel are volunteers, and it is not likely that men whose chose to enter 

the armed forces will decide to desert even if the y belie ve the y can do so with 

imp unity. Third, even among the draftees in the armed forces it is extremely 

unlike ly tha t there are large numbers of soldiers who would vanish once word of 

amnesty is received; most like ly, the vast ma jority of potential deserters have 

alre ady deserted and are now in exile.

(3) “ Can the gove rnm ent survive if individuals ma y sele ctiv ely disobey the 

law wit h impun ity? ” is another issue raised by amn esty opponents. Presuma bly 

their answer is “ no,” and that is the substance of their objection.101 In rea lity , of 

course, the answer is “ yes .” Thirtee n Presidents have granted amnesties in the 

past. The gove rnment survived. If a four teen th President implem ented an 

amn esty, it would not result in the destruction of our nation. If used sparingly, 

amn esty is an effective instrument for tempering the law with equit y and mercy. 

If amn esty were granted for a multitu de of offenses, of course, its effect would be 

diluted and the survi val of the gove rnment might b ecome an issue. At the present 

time, however, it is ridiculous to assert that we are anyw here near that point. 

Historically, amn esty has not involved the issue of sele ctive disobedience of the 

law. Am nesty has been granted not to condone sele ctiv e disobedience, but to 

“ for get ” it.102 Furthermore, since amnesties cannot be forecast, those who violate 

the law can never be certain that the y will benefit from an amn esty.

94 " I ha ve alway s su pp or te d th e dra ft , an d I feel th a t outr ig ht am ne st y wo uld de ­

mor al ize ou r sy stem of dra ft in g In di vi du al s fo r m il itary se rvice.” L ett er fro m Sen at or 

E rn est Hollln gs to W ill iam Wick, Feb. 7, 1072, on file In th e ed it ori al offices of th e 

Bu ffa lo Law Re vie w.

90 R. St afford. F. H or to n, R. Sc hw eik er, G. Shrive r & C. W ha len, Ho w To End th e 

D ra ft 12 5 (1967) [h er ein aft er ci te d as F. H ort on].

98 P re si dent Nixon ple dged to end th e d ra ft in M arch , 196 7, an d ag ai n In th e 1968 

Pre si denti al campa ign, but du ri ng hi s firs t term In office he was one of th e mos t Influen tial fo rces ag ai nst Co ng ressiona l mo ves to ab olish th e dra ft . R. W ill iams, su pra no te 2. 

a t 43. D ur in g th e 1972 Pre si den ti al ca mpa ign, ho we ver, P re si dent Nixon ag ai n pledge d 

to end th e d ra ft . N.Y. Time s, Aug. 29, 197 2, a t 1, col. 8.

97 F. H orton , su pra no te 95. See also Th e Rep or t of th e P re si dent’s Comm ission on 

an Al l-V olun teer Arme d Fo rc es 5 -6 (1 97 0) .

’’ Time, Ja n. 10, 1972, at 17.

98 Newsw’eek, Ja n. 17, 197 2, a t 26.

1 00 “ [T ]h e de se rtio n ra te fo r th e U.S . Armed Fo rc es by 1967 ha d in cr ea se d 300 pe r 

ce nt ov er th e no rm al pe ac etim e ra te of th e fifti es an d si xties .” R. W ill iam s, su pr a no te 2. at 91.

Alth ou gh am on g th e de se rt er s th er e were th os e wh o fled sim ply be cause th ey we re 

fr ig hte ne d, th e la rg est gr ou p of de se rter s in Ca na ua ar e th os e “w ho sim ply ob je ct to 

war, to be ing force d in pe ac etim e to fig ht w ar s an d who, th ro ug h a com mon intelli ge nc e, 

knew th a t th e w ar in Vietnam was wro ng .” Id. n t 114.

mi “ [W ]e ca nn ot ac qu iesc e in a syste m wh ich pe rm its in di vi du al ci tiz en s to decide 

w ith im punity wh ich la w s th ey will obey an d wh ich th ey will de st ro y.” L etter fro m 

Sen at or Gordo n Allo t (R -C olo.) to W illiam Wick, Ja n. 17, 197 2, on file in th e ed itor ia l 

offices of th e Bu ffa lo Law Rev iew. “I fe ar th e pr ec ed en t for th e fu tu re th n t Co ngres s 

wo uld se t if we were to begin to pe rm it in di vi du al s or gr ou ps to decid e fo r them se lves 

which la w s th ey could obey, an d wh ich th ey could igno re or vi ol nt e.” L etter from 

Sen at or Richa rd Sc hw eike r (R -P a. ) to W ill iam Wick, Jn n. 27. 1972. on file in th e ed itor ia l 

offices of t he Bu ffa lo Law R ev iew. Bee also Tim e, supra no te 98.

E r pa rte Law , 35 Ga. 285 , 296 (1 86 6) .
051

Although amnesty does not speak to the issue of selective disobedience of the 

law, oppon ents of amn esty have managed to bring the issue in through the bac k 

door by asserting tha t amn esty should not be granted because exiles left the 

country rathe r than accept punishm ent for their illegal resis tance.103 C onsequ ently, 

the problem of selective disobedience should be examined. Americans hav e been imbued with the notion tha t disobedience of laws which 

a person considers to be “ bad” or “ immoral” is wrong, because such disobedience 

presumably fosters a general disrespect for T he Law— including, of course, “ good ” laws vit al to the maintenance of our society . Th at notion does not with stan d 

analysis, howe ver. As one observer noted: “ Bu t this is like arguing that children should be made to eat rotten fruit along 

with the good, lest the y get the idea t ha t all f ruit should be throw n aw ay. Isn ’t i t 

likely that someone forced to eat the rotten fru it may because of that develop a 

dista ste for all fruit?” 104

Without developin g the argument furth er, certain ly we can posit that even the 

most conservative defender of the Rul e of Law could visualize situa tions in which he would not obey the law. Otherwise, people would no longer be people— they 

would be amoral agen ts of the S tate, willing to do its bidding, wha tever tha t may be. Conceding tha t some laws should not be obeyed, the defender of the “ Rule of La w” would nevertheless argue that fleeing prosecution is not an ava ilab le 

alte rna tive : a person can attem pt to change the law and, failing tha t, he must 

disobey it and accept the consequences.105

Att em pting to change undesirable laws and policies is a reasonable initial 

approach, bu t its limitation s are glaring when applied to the Vietnam exile 

situation. Individuals and groups hav e tried to change war policies, using a varie ty 

of means in their attem pt to do so. The trend of the war began to change, bu t the war itself seemed endless. In fact, one could imagine the case of an eleven-ye ar-old 

boy writing protest letters to his governm ent in 1965, prot esting against the war in other ways in later years, and being drafted and ordered to go to Vietnam in ear ly 1972. Th at person tried to “ change” governmental policies for seven years? 

Who could honestly tell him tha t he mu st not dis obey th e law , bu t try to change it. Thus , if “ change” is ineffective, it is asserted that a person may diso bey the 

law, but that he must “ accept the cons equences.” 109 Bu t why? If a law is ruled 

unco nstitutio nal, a person who breaks that law is not required to “ acc ept the consequences.” Desp ite evidence of their ille gality, the dra ft and the Ame rican involvement in t he war will a ppa rently never be adju dge d b y the court s as illega l— 

but this society has done eve ryt hin g but formally stamp the dra ft and the war 

“ illegal.” The public considers the war a mistake. 107 Politicians have disown ed 

the war: our only goal is to get out and to forget as qu ick ly as possible abo ut our particip atio n and the rationalization s for our particip atio n. If the court s hav e 

not declared the war illegal, our society has declared the war “ wro ng.” Con se­ que ntly , to argue that punishmen t is required to reinforce some general “ Rule of La w” accom plishe s onl y one thing: it appeases our “ pun itiv e puritan sense of 

bure aucratic du ty .” 108 is the “ Rule of La w” furt hered when the sta te continues

los “Ou r sy stem of re pre se nta tive de moc racy could no t ex is t If we ac ce pted selective ob edien ce to laws, or did no t en force al l ou r laws . We en joy man y be ne fits of a free so ciety, in cl ud in g th e pr ivile ge s of In flu en cing pu blic polic y th ro ug h pu blic de bate. But we m us t also bea r th e bu rd en s of a free society by ob eying ou r laws an d ho no ring al l th e co lle ctive re str ain ts th a t en ab le each in di vi du al to be fre e. I fe ar th e pr ec ed en t fo r th e fu tu re th a t Co ng ress wo uld se t if we we re to begin to pe rm it In di vidu als or gr ou ps to decid e fo r them se lves wh ich lnw s th ey could obey, an d wh ich th ey could Igno re or vi ola te .” L et te r fro m Sen at or Ric ha rd Sc hw eike r (R -P a. ) to W ill iam Wick, 

Ja n. 27. 1972. on file In th e ed itori al offices of th e Bu ffa lo Law Re view .

10* H. Zin n, D isob ed ienc e and Democracy 12 (1 96 8) . 

lnB T im e, su pr a no te 98.

108 Id . Fam ou s in di vi du al s such ns Soc ra te s, Gha nd l, an d M ar tin L uth er Kin g ar e of te n cited ns hav in g ablded by th is pr in ciple. In a nu m be r of way s, ho we ver, th e Vietnam exile may face a pro ble m of a di ffer en t dimen sio n. As one co m m en ta to r observed : “H ad S ocr at es ' bee n 18 wh en he was aske d to cho ose be tw een exile an d heml ock bo th hi s re as on in g an d th e outco me m ig ht ha ve been diffe rent. Eve ry America n male Is face d w ith hi s ow n ve rsion of hem lock In th e gu ise of co ns cr ip tion .” O’Ro urke , No More

Pa rades. Nat ion. May 24. 1971. a t 662. \

107 A Gallup Poll in 197 0 de term in ed th a t a “m aj ori ty of adult s— 56 per ce nt— belie ve th e Uni ted S ta te s ma de a mistake in se nd ing troo ps to fig ht In V ie tn am ." N.Y. Times , 

.Tune 28. 197 0. nt 4. col. 1. In 1972, ob se rv at io ns we re ma de th a t “ [W le ar e ap pro ac hi ng a co ns en su s th a t it was a m iita ke fro m the. be ginn ing, th a t we sh ou ld ha ve ne ve r gotten in to It [t h e Vietnam 

w ar] . . . .” Nat ion, J an . 17. 197 2, nt 67 -68.

ln8 W idme r, W he re Ou r W ri t Do es n't Run , Nation, J une 14, 197 1, a t 762.
662

to punish individuals for refusing to participate in a war tha t society has disowned 

as unju st and immoral? Is i t furth ered when an individual is punished because he 

refused to be jailed for his convictions abo ut killing in Vietnam? Obviously not. 

Such actions can only serve to erode the “Rule of Law.”

(4) The final, and most substan tial, of the objections to amnesty is th at an 

amn esty would not be fair to those who fought in Vietnam .108 Since some men lost their lives in Vietnam, and since some were disabled, the conte ntion is t ha t 

it would be unfair to let d raf t evaders an d deserters return without being punished.

The answer to this emotion-laden a rgum ent is two-fold. (1) “ Yes,” it is “unfair,” 

but (2) th at is not a relev ant argument against a mnesty.

Who could successfully argue t hat it would be “fair” to gra nt amn esty to a man 

who did not fight in Vietnam when his neighborhood counterpar t was inducted, 

sent to Vietnam, and retu rned home in a casket? Or as a paraplegic?

However, can whatever happens to men who survived this trag edy be “fair” ? 

To answ er “yes” would pervert the meaning of the word. Can retu rnin g veterans, 

much less those who died, be t rea ted “fairly” rela tive to the politicians who sent 

them to the war and to the public which approved? Clearly, the answer is “no .” 

The simple fact is th at the men who have forfeited their lives and bodies in Vietnam

cannot be compensated for their losses. They were conditioned to obey the law and 

respe ct military and political leaders, accepting withou t question the laws and 

policies of the nation. Their leaders ordered them to fight “gooks” and die in 

Vietnam, and they dutifully went and fought and died in Vietnam. Their only 

mistake was a naivit<$ abo ut patriotism, war, the political situ atio n in Indochina, 

and the foreign policy motivations of their country. For th at mistake they paid 

dearly—and they paid without the traditional solace th at they were fighting “for 

something” , and not in vain. American soldiers fought for a corrupt dictatorship 

in South Vietnam and for a misguided executive in the United States. They fought 

and died for a dreadful mistake.

From this perspective, the irrelevance of th e “fairness” argument to the issue 

of amnesty becomes clear. It is obviously absu rd to deny an exile amnesty because he did not lose his legs in Vietnam. And it is equally absurd to att em pt to 

artificially create “fairness’’ by requiring a period of forced national service 

before an exile m ay receive “am nesty.” 110 Vietnam veterans cann ot be compensate d by denying freedom to Vietnam exiles. The government cannot provide 

arms, legs, eyes, resurrections, and a retu rn to 1963; nor can it shift the blame 

for its mistakes onto the draft evaders and deserters by penalizing the exiles. 

All young men who suffered thro ugh the agony of Vietnam— those who went and 

those who refused to go—have been treated contem ptuously by this government. 

To a tte mpt to equalize the suffering by heaping more “unfairness” on those who 

refused to go is only a shallow, pitiful effort by the government to evade its own 

singular responsibility for Vietnam and its awful consequences.111

C o nclusi o n

The question th at must be faced by the American governm ent and the American 

people is whether we have the righ t “to prevent them [the exiles] from returning 

when they have done nothing, in light of the Vietnam war, which can remotely be

109 “How do you justify this legislation to the mother who will never see her son 

again ; to the widow and children who won’t have the ir fat her home again . . the 

only answer is th at you cann ot.” Letter from Senator William Saxbe (R-Ohio) to William 

Wick. Jan. 28, 1972, on file in the editorial offices of the Buffalo Law Review. 110 The bills introduced by Senator Taft and Representative Koch require a period of 

forced service. The bill introduced by Representative Abzug does not require any such 

alt ern ate service. Supra, note 8. Many Senators share the views of Senator Edward Gurney (R-Fla.) : *‘I would consider supporting an amnesty proposal with certain conditions, and I feel these conditions should he relatively harsh. I am not in sympathy 

with those who have left the country to avoid military service, and I think it would 

betray those who did not want to go to Vietnam hut who did go because they felt it 

was their duty to their country.” Letter from Senator Edward Gurney to William Wick, 

Jan. 21, 1972, on file in the edito rial offices of the Buffalo Law Review. If “harsh” conditions are imposed on those seeking "amnesty,” however, it would not 

he an amnesty at all, but simply an alteration of the penalties for breaking the law. 111 The fact is, of course, that the exiles have suffered through much already. Establishing a new life in exile and fearing to retu rn home create gre at emotional strains. 

The men who have been forced into exile have already performed thei r “national service.”
653

called a crime.” 112 There is not doubt in this writ er’s mind that dra ft evaders and 

deserters will eventua lly be regarded as heroes. An amn esty cannot minimize the 

traged y that has already occurred, but it will insure that the mistakes of the war 

are not compounded in the wa r’s afte rma th. Hopefully, history books published 

decades from now will indicate tha t the heroes of the Vietnam war were able to 

return home, hono rably, in 1973— withou t fear of prosecution.

Will iam D. Wic k.*

Marc h 1, 1974. 

C ross Plains, Wis ., February 22, 197J+.

Hon. R ob er t W. Kas te nm eier ,

House Judic iar y Committee,

Ray burn House Office Buildin g, Washington, D.C.

D ear Cong ressma n K as te nm ei er : In anticipa tion of you r Congressional 

hearings on amn esty, I would like to bring to you r attentio n the follo wing case 

history of a second district constituent. In 17 years of teac hing in Madison I have 

seldom had a student in class with as m uch potential for contrib utin g to American 

society as the young man I am abou t to describe to you. The loss of this poten tial 

to anoth er cou ntry because of the short-sightedness of the present adm inistration 

on th e question of amne sty prompts this lett er of protest.

I first knew Charles Jacobsen when he was a star quarter back at Wisconsin Hig h 

School in Madison. He was elected studen t council president in his senior yea r by 

fellow s tudents, and he assumed an activ e role in the fest ivities which marked the 

closing of t ha t school afte r 53 years of affiliation with the Un ive rsity of Wisconsin. 

He then enrolled at the Un ive rsi ty of Wisconsin— Madison, and in 1968 completed 

a B.A. degre in philosophy. During his college career he worked part-time at various 

jobs in Madison while at the same time making a substan tial cont ribution wit h 

others to a program of recreation for culturally deprived and minority stu den ts 

from Mad ison ’s sout h side. This experience no doubt contributed to his decision 

to join the Peace Corps th at summer.

Chu ck was assigned to teach mathematics to junior high age youngsters at 

Kenema in Sierra Leone. After two years of distinguished service he returned to 

Madison to find a draft notice awa iting his attentio n. After some discussion of 

filing as a conscientious objector, and considerable private debat e over the “ rig ht 

thin g to do” he fina lly decided to immigrate to Sweden. Sho rtly afte r his arriv al 

in Sweden his m other died after many years of an agonizing battle with cancer. Of 

course Chu ck was prohibited from re-entering the United Sta tes for his mo the r’s 

funeral b y th e circumstances of his departure.

The traum atic experience of young men such as Chuck Jacobsen who have 

exhibited their you thful idealism in the ir own land, and then found them selves 

forceably exiled by what they see as a trav esty on the American ideal, can only 

be understood by the young men them selves. It is nevertheless the respon sibility 

of gove rnment to learn as much as it can of the reality of this experience before 

the y make decisions that will affect not onl y the you ng men bu t the nation at 

large.

Chuck has ju st recent ly married a Finn ish girl and the y live as a fam ily on a 

farm near Orsundbro, Sweden. While living in Sweden Chu ck has continued his 

grad uate studies at Upp sala , worked as a fisherman and as a tile mak er in a local 

fac tory. He has worked hard to acclimate himself to life as a Swedish citizen 

which will no doubt be the nex t step.

So we have lost him— one of Americ a’s finest. A young man with a life tim e of 

potent ial— instilled with the kind of idealism that has made this cou ntry grea t—

112 R. Williams, supra note 2, at 401. The amnesty proposed In this article would not absolve Individuals of crimes other than refusing induction or deserting, but all draft 

evaders and deserters automatically would receive amnesty for illegal evasion and desertion. The establishment of tribunals to assess motives and evaluate individual cases would re-open national wounds instead of binding them, particularly since it was the war which influenced such a vast majority of exiles to avoid serving. See supra note 100.

•Mr. Wick is a second year student at the Georgetown University Law Center, 

Washington, D.C.
654

a man whose idealism has been irreparably soured by the attitude of the administration on the issue of Vietnam— a man who made his contribution by serving for 

two years with distinction in the Peace Corps, and then was kicked in the teeth 

by an insensitive bureaucracy which failed to distinguish between blind subservience and intelligent questioning of a policy that history has already proven 

fallacious. If there are any heroes of Vietnam they are found as much in Toronto 

and Stockholm as at the military ceremonies in Washington.

This is the case history of only one young American. There must be many 

others— men who believed in American democracy— men who joined the Peace 

Corps or Vista, or who made their contribution in countless other positive, hopeful ways— men who are now exiled for making a decision that other men must 

at least respect even if they don’t agree. These are the men you should give some 

attention to in your hearings. These are not the drop-outs of society. They are 

instead doing for Sweden or Canada what they might be doing for us if we let 

them.

Sincerely,

John L. Evera rd.

T he Unive rsit y of Michigan Law School,

Ann Arbor, Mich., February 25, 1974-

Representative Robert W. Kaste nmeier,

Chairman, Subcommittee on Courts, Civil Liberties, and the Administration of

Justice, Committee on the Judiciary, House of Representatives, Washington, D.C.

Dear Congressman Kast enm eie r: I am submitting this letter for inclusion 

in the printed record of your forthcoming hearings on amnesty on March 7 and

8, 1974.

As a professor of law, and one who believes that respect for law is a fundamental 

necessity in any civilized society, I nonetheless urge your support for an unconditional amnesty for those who refused to participate in the war in Vietnam, 

either b y refusal to be conscripted or by desertion from the Armed Forces.

One observation that soon becomes obvious to anyone whose profession is the 

law is that respect for law does not depend upon the mechanical and mindless 

enforcement of every law on the books, regardless of circumstances or regardless 

of the content of the law. The law is not, as we have been so often reminded, a 

brooding omnipresence. It is an instrument of the society, designed to achieve 

the community’s purposes, and thus must always be enforced with those purposes 

in mind.

Each of us knows of situations where, technically, the law has been violated, 

but where every element of human compassion and common sense dictates that 

it should not be applied in its full rigor. Hardly a week goes by that we do not read 

in the newspapers of a situation where a local prosecutor has decided not to prosecute out of compassionate considerations. Indeed, the very existence in the law 

of the power of pardon and amnesty illustrate the need for such temperance.

In our own history, we have the dramatic example of those who during the 

pre-emancipation period took it upon themselves to help runaway slaves. While 

this was clearly illegal, who today would argue that it was not the plain course 

of justice, and that the law should not have been used to prosecute these humanitarians who were willing to act on the principle that slaves were human beings 

and not mere chattels? Indeed, at that time, local communities strongly opposed 

and prevented prosecutions of those who helped runaway slaves. I have described 

some of these instances in an article I wrote in the June, 1968 issue of the Yale 

Review, Volume LVII, at pages 482 and 483.

As a college teacher, I had a good deal of experience talking with young men 

who were called to serve in the Vietnam War, and I am acute ly aware of the 

terrible moral anguish many of them faced. The y felt a powerful pressure to 

fulfill their legal obligations, and at the same time a powerful moral repugnance 

at much of which they were learning about what was occurring in Vietnam. At 

that time, many of us were skeptical of some of the asserted outrages that 

enflamed their consciences. In subsequent months and years we have learned, 

unfortunately, that all too many of those concerns were justified. Even this 

week, we read in the paper of the possibility that the effects of the defoliation 

program may endure for as long as 100 years, to the cost of future generations 

of innocent Vietnamese.
Even today, there is in America a wide range of opinion about the Vietnam 

War. But it hardly seems possible to me for any of us to feel tha t those who were unwilling to serve do no t deserve the compassionate und erstanding of the com­ mun ity. Th at compassion ought no t to be, at this stage, cribbed and confined by various conditions. The time has come to pu t the ranc or of these years of the War aside, and let all Americans ret urn to the ir homes, the ir jobs and the ir 

families as full citizens. Amnesty, of course, is no t new to America. I t has been an element of American policy time and again following most of our wars. However one may read the histo ry of previous amnesties, and the y differed grea tly (as I described in my testimony before Senator Kennedy’s Subcomm ittee of the Senate Judicia ry Committe e on March 1, 1972), there is certainly nothing in our history th at 

could be described as a precedent aga inst amnesty.

Yours, J oseph L. Sax, 

Professor of Law.

American Civil Liberties Union,

New York, N. Y., February 21, 1974-

Hon. R obert W. Kastenmeier,

Rayburn House Office Building,

Washington, D.C.

Sir : Your hearin gs on amnesty for violators of military requirem ents of men drafted or of draft age prompt me to add my view th at only a general and unco nditional ann ulm ent will serve the practic al ends of justice. I have had considerable experience with this issue as head of amnesty cam­ paigns a fter both World War I and II. Those campaigns urged general amnesties bu t had to settle for individual reviews and pardons. This policy resulted in so many injustices, due to varying standard s of the reviewing officials, th at even 

its advocates conceded its unfairness. I do not think i t eith er fair nor practical to try again the indiv idual reviewing system nor to assess who among conscientious objectors should do penance for the ir defections. Categories presumably will be estab lished to deal with the various groups th at mu st be specified in an amnesty, bu t no penalties should attach to them, prim arily because of their imp ractica lity from the governm ent s 

side and unfairness from the men’s side. I have hesitated to endorse the abolition of less than honorable discharges from the arm y because it is obvious they fit certain classes of men. But I have concluded th at the system is so sho t throug h with prejudice and favoritism, and is so irresponsibly administered th at there should be only one discharge withou t characterization. Discharges after court martial are of course q uite by themselves. If a general amnesty after previous wars was not granted, the argument for one after the Vietnam war is far more persuasive. It was an undeclared war, opposed by a large sector of the public; it was unjustified intervention in a civil war unrelated to U.S. national interests. However one regards it, the men who opposed it deserve recognition of the ir views and conduct, shared by so many, 

prob ably a majority, of their c ountrymen.

Sincerely yours, R oger Baldwin.

T oronto, Ontario, February 10, 1974-

Rep resentativ e Robert Kaste nme ier,

House of Representatives

Washington, D.C.

Dear Representative Kast enm eier: In light of the fact th at I am unable 

to be present to testify at the amn esty hearings th at the House Jud icia ry Com­ mittee subcommittee, which you chair, is holding since I am an Army deserter, I would like to sub mit the following sta tem ent to be included in the Hearing 

Record: The argu men t is often made th at the only amnesty th at can be just to all individuals concerned is one which proceeds on a case-by-case basis. This argument is usually based upon the record of the 1947 Truman Amnesty Board which,
656

after a case-by-case consideration, recommended to President Truman th at he 

amn esty only 1,523 out of a total of 15,805 cases being reviewed for amnesty. 

The Board’s recommendation made the following p oint:

In perhaps one half of the cases considered, the files reflected a prior record of 

one or more serious criminal offenses. The Board would have failed in its duty to 

society and to the memory of the men who fought and died to protect it, had 

amnesty been recommended in these cases . . .

Many of the wilful violators were men with criminal record s; many whose 

record included murder, rape, burglary, larceny, robbery, larce ny of Government 

property, frau dulent enlistment, conspiracy to rob, arson, violations of the immigration laws, counterfeiting, desertion from the U.S. Armed Forces, embezzlement, 

breaking and entering, bigamy, drinking benzedrine to deceive medical examiners, 

felonious assault, violations of National Motor Vehicle Theft Act, extortion, 

blackmail, impersonalization, insurance frauds, bribery, black m arket operations 

and other offenses of equally serious nature ; men who were seeking to escape 

detec tion for crimes committed; fugitives from justice ; wife deserters, and others 

who had ulterior motives for escaping the d raft . . . (Emphasis added.)

Those who make the case today for individual adjudication of war resisters 

argue th at an examination of Vietnam era war resisters would show similar 

figures. However, before we go on to establish guidelines for futu re conduct 

based on historical precedents, let us first be certain th at we have a correct 

und erstanding of our historical example.

The Amnesty Board did not give a breakdown of the above lists of serious 

criminal offenses in its Report to the President. Consequently, in April 1948 

Charles P. Taft, the President of the Federal Council of Churches of Christ in 

America, wrote to President Truman concerning this ma tter. Taft was highly 

critical of the limited amnesty recommended by the Board. He requested th at the 

category of 10,000 wilful violators be broken down according to the type of offense 

because the report had cultivated the impression th at the vast majority of men 

in this category were murderers and rapists.

Taft had found the jugular vein of the Truman Adm inistration’s amnesty 

policy. In order to ju stify th e exclusion of 10,000 or 63 percent of those considered 

for am nesty, the Board needed to be s tand ing on firm ground; i t was not. Trum an, 

to whom the letter was addressed, declined to answer Taft personally. William D. 

Hassett, Secretary to the President, in re-routing the letter to Attorney General 

Tom C. Clark explained th at Clark should answer it to tak e “th e hea t off the 

President personally.” Clark offered the following table for the 10,000 wilful 

dra ft refusers, offenses broken down by categories. It was compiled by the Ju stice 

Department on 30 Jun e 1946.

Type of Violation:

Failure to Register___________________________________________ 1, 434

False Re gistration___________________________________________ 224

Failure to Possess Registration Certific ate_______________________ 185

Failure to Return Questionnaire_______________________________ 2, 717

False Questionnaire____________________________________________ 637

Failure to Possess Classification Notice _________________________ 70

Failure to Rep ort for Physical Examination _____________________ 1, 611

Failure to Report for Ind uction________________________________2, 444

Counseling or Aiding Evasion ___________________________________ 169

Interferen ce by Force________________________________________ 38

Bribery and Offense by Officials_______________________________ 42

Miscellaneous_________________________________________________ 101

T o ta l........... ....... ........... .......................................... ............... ........... 9, 672

Clark knew he did not have a leg to stand on. He did not even attempt to 

justify their exclusion on the basis of the “serious criminal offenses” phrase the 

Boa rd’s report had used as a blanket category, since it is clear th at only 139 

(Interference by Force and Miscellaneous) of the nearly 10,000 could even be 

construed to be any thing more serious than Selective Service violations. (This 

information was taken from the “Amnesty Collection” of the Harry S. Truman 

Library, Independence, Missouri.)
657

Unfo rtunately this actual break down of offenses never became public knowledge. Attempts were made by the amnesty movement to continue pressing for 

a full amnesty for World War II war resisters, bu t the amensty proclaimed by 

President Trum an in December 1947 was successful in dividing the amnesty 

movement and dissipating the public campaign for amnesty. The Truman Administratio n amnesty policy was not the first in the American amnesty tradition to 

use case-by-case amnesty to avoid granting a real amnesty.

After the First World War there was a strong public outcry for amn esty for 

violators of the war’s Selective Service Act a nd the Sedition and Espionage Acts. 

President Woodrow Wilson favored an amnesty bu t was persuaded otherwise 

by his Attorney Generals Thomas Gregory and A. Mitchell Palmer. Preside nt 

Warren Harding saw these political prisoners as dangerous and was opposed to 

a general amnesty. Although Gregory and Palmer were opposed to a general 

amnesty, they did recommend a case-by-case review of some wartime sentences 

under the Espionage Act. This resulted in a few reduced sentences and commutation s bu t did not even consider IWW members, who comprised the bulk 

of those sentenced under the Act. Since the legitim acy of these wartime convictions was subject to doubt even within the Government, the case-by-case review 

was never considered as a legitimate amnesty bu t rather as a device to reduce 

public pressure for amnesty.

The Justice Departm ent later adm itted confidentially th at “the test imony is 

meager with regard to many of the defendants, the government is relying largely 

upon the general atmosphere surrounding the prosecution and the fact th at the 

defendants were IWW, rather tha n upon direct, positive te stimony . . . [and] the 

conviction is sometimes based largely upon conjecture . . .” The Pardon Attorney 

found th at in many instances there was no evidence whatever to show th at the 

defendants had done anything to violate the Selective Service Act or the Espionage 

Act. (William Preston, Jr., Aliens and Dissenters: Federal Supression of Radicals,

1903-1933, (Harvard University Press, 1963), pp. 249-50.)

The Harding Administration used a policy of selective comm utations during 

1921 based upon immediate deportatio n of foreign born prisoners. When the 

amne sty movem ent seemed to be gaining momentum in 1921, Harding ordered 

the release of his most notorious prisoner, Eugene Debs. Attorney General 

Daugherty explained.

That Debs’ “release . . . [was] brought abo ut because the movement had 

succeeded or gone too far.” The policy paid off, for immediately thereafter, one 

of the m ajor forces behind the amnesty drive called off its campaign. The American 

Federation of Labor ceased its operations on behalf of political prisoners because 

it believed “a full measure of success had been achieved.” (William Preston, Jr., 

Aliens and Dissenters, p. 259.)

In these ways Harding managed to avoid granting a general amnesty.

Calvin Coolidge granted unconditional commuta tion for 30 IWW members 

in 1923 and pardoned another four aliens in 1925. Approximately 1,500 political 

prisoners and conscientious objectors languished in jail, however, until President 

Franklin D. Roosevelt reversed this policy in 1933 with a general amnesty.

These lessons were no t lost upon Harry Truman. Before he resorted to creating 

an Amnesty Board to review each case individually, the Administration tried 

to obviate the need for amnesty by implementing a new liberal parole policy in 

1945-46. Parole was not the same as amnesty, as the former did not restore an 

individual’s civil rights. (A Selective Service violation is a federal felony and 

such a conviction results in the loss of such rights as voting in some state s, belonging to professional associations such as legal, teaching, medical groups, as 

well as being unable to run for public office.)

Yet Tru man’s Attorney General Tom Clark did not seem concerned abo ut the 

distinction between the two legal devices—amnesty and parole. His main concern 

was to get the d raft resisters and COs out of prison and simultaneously to reduce 

public supp ort for amnesty. As Clark pu t it:

As I see it, the granting of unconditional paroles to all sincere conscientious 

objectors and Jehova h’s Witnesses who have served eighteen months will make 

unnecessary any Executive clemency [amnesty] to procure such releases. (Attorn ey 

General Tom C. Clark letter to Owen J. Roberts, 20 Septem ber 1946, Box 1 , 

Owen J. Roberts correspondence folder, Committee for Amnesty Papers, Sw arthmore College Peace Collection, Swarthmore, Pa.)
658

Clark was mistaken. His parole policy did not reduce the number of men in 

prison quickly enough.

The forces working for a general amnesty were building up outside while the 

number of men behind bars remained high as a great number of COs refused 

parole because it left them stripped of their civil rig hts and gave validity to their 

original convictions for refusing the draft. Trum an, therefore, was forced to go 

through the motions of declaring amnesty, bu t for a mere 1,523 o ut of a total of 

15,805 cases. As shown above with respect to the class of approximately 10,000 

wilful violators—“ the serious criminals”—the official justificatio n for such a 

limited amnesty was bankrupt.

Is it any wonder t ha t organizations such as the American Legion, the Pentagon, 

and the Selective Service System are in favor of a case-by-case review? They 

know th at individual review will be the next best thin g to no amnesty at ali. 

More importantly, they know th at it is possible to cover up injustice in a blank et 

of official deceit and thereby stall public campaigns for amnesty. The Government 

has had a great deal of success in implementing this tactic not only afte r World 

Wars I and I I, bu t it has also been quite active in cover-up operations with respect 

to the Indochina War and Watergate related issues. The question of amnesty 

must not be covered-up.

Thanking you for your cooperation, I am,

Sincerely,

J ack Colhoun.

P erry & Firs t, Attorneys at Law,

Milwaukee, Wis., February 18, 1914.

Mr. William Dixo n,

Counsel, Subcommittee on Court* Civil Liberties and Admin istratio n of Justice

of the House Committee on judiciar y, Rayburn House Office Building, Washington, D.C.

Dear Mr. Dix on: I have enclosed a le tter th at was published in the Milwaukee

Journal and would like this statem ent to be included in the record containing the 

subcommittee’s re port on amnesty.

It is not so much hoped th at this letter will become a part of th e record as the 

message and, accordingly, I would hope this aspect of amnesty is given careful 

atte ntio n.

Sincerely,

Curry F irst.

AMNESTY NOT AN ISSUE

To The Journal: Your Jan. 9 editorial, “Amnesty Must Be Faced,” quoted 

Melvin Laird as stating amnesty should be considered and th at justice must be 

administered with compassion and mercy.

When the amnesty issue is discussed in the context of compassion and mercy, 

it is clear those individuals have in mind a type of forgiveness for those who 

illegally evaded their military obligation. This belief is underscored by a conditional 

type of amnesty under which the individuals may be required to undertake compulsory national service for this country.

This entire approach, despite your editorial headline, does not face the rea l 

issue. We should be concerned with justice and not mercy. In considering justice 

we mu st confront openly the condition precedent, which is whether this country’s 

participation in Southeast Asia constitu ted war crimes.

Recognizing world opinion, including th at of many of our allies, and legal 

experts in this country, we must accept the fact this cou ntry’s m ost unp opu lar 

war was also illegal under inte rnational law. For example, we can all rememb er 

too well th at it was jus t 13 months ago th at we b rought Christmas to Hanoi in 

the form of genocidal bombing, the most concentra ted in the history of air 

warfare.

Thus, those who avoided military service and paymen t of war taxes followed 

the just course and for them amnesty or forgiveness should not be at issue. 

Rather, we should administer justice, coupled with compassion and mercy, to 

those war criminals, whoever the y be, who devasta ted Southeast Asia and its 

peoples.

Curry First.
659

Amnesty I nternational, I nternational Secretariat,

London, 19th February, 197^.

Hon. R obert W. Kastenmeir,

Chairman, Subcommittee on Courts, Civil Liberties, and the Admin istr ation of

Justice, Committee on the Judic iar y, House of Representatives, Wash ington,

Dear Representative Kastenmeir, I understand th at th e Committee on the 

Judiciary of the U.S. House of Representatives is to hold legislative hearings on 

the issue of amnesty for American War Resisters on March 7th and 8th.

On 22nd July, 1973 Amnesty Inte rna tional issued a statem ent of support for 

“the campaign currently being waged in the United States for a general unc onditional amnesty for all war resisters’’. I have pleasure in enclosing a copy of th at 

statem ent and respectfully request t ha t it be included in the record of the hearing.

Now th at the direct involvement in the IndoChina conflict of uniformed 

United States military personnel has ended it seems particularly urgent th at the 

wound caused by th at war, especially among American youth, be healed. The 

provision by Congress for a universal, unconditional amnesty, (th at is, to ta l 

exoneration), would be an indispensable component of the healing process.

Yours sincerely,

Martin E nnals, Secretary General.

Statement on Amnesty for U.S. War Resisters

Amnesty Inte rna tional supports the campaign currently being waged in the 

United States for a general, unconditional amnesty of all war resisters. Amnesty 

Inte rna tional is a non-governmental organizatio n dedicated to the release of 

prisoners, who, not having advocated or used violence, are imprisoned by reason 

of their political, religious or other conscientiously held beliefs, or by reason of 

their ethnic origin, colour or language.

The majority of Amnesty’s adopted prisoners in the United States have, in 

the p ast several years, been young men convicted of refusal to serve in the armed 

forces on the grounds of opposition to the w ar in Indochina.

Accordingly, Amnesty Internatio nal calls particularly for the release and 

exoneration of those who have been convicted for refusai to serve in the armed 

forces and for the non-prosecution and non-arraignment of those who have not 

yet been trie d for such refusal.

This sta tem ent of support for the general amn esty campaign is also intended 

to cover all people, e.g. deserters, civil disobedients, people receiving less-thanhonourable discharges etc, who, for having opposed the conduct of the war on 

grounds of conscience, are the subjects of the campaign in the United State s.

Amnesty Int ern ational’s policy on conscientious objection is based on the 

declaration of the World Conference on Religion and Peace, held in Kyoto, 

Japan, October 16-21, 1970. The Kyoto declaration states:

“ We consider th at the exercise of conscientious judgment is inherent in the 

dignity of human beings and tha t, accordingly, each person should be assured 

the right, on grounds of conscience or profound conviction, to refuse military 

service, or any other direct or indirect participation in wars or armed conflicts. 

The righ t of conscientious objection also extends to those who are unwilling to 

serve in a particular war because the y consider it unjus t or because the y refuse 

to participate in a war or conflict in which weapons of mass destruction are likely 

to be used. This Conference also considers th at members of armed forces have 

the right, and even the duty, to refuse to obey military orders which may involve 

the commission of criminal offences, or of war crimes, or of crimes against 

huma nity.”

Amnesty Inte rnational, as early as November 1969, issued a Declaratio n of 

Concern and Appeal for Amnesty. This Declaration appealed “to the American 

Government to keep faith with its tradition of freedom of dissent by declaring 

an amnesty for all those imprisoned, awaiting trial, or in exile because of the ir 

refusal, on grounds of principle, to participate in the Vietnam w ar.” It accurately 

predicted th at the “indicted dra ft resisters and some of the deserters in exile 

form a reservoir of potential prisoners of conscience who m ay populate the goals 

of America long after there is no Vietnam war unless some form of amnesty 

is g ranted.”
660

L eh ig h -P oc on o C o m m it tee o f C o n c e r n ,

Bethlehem, Pa., February 27, 1974-

Hon. R o b er t W. K a st e n m e ie r,

Rayburn House Office Building,

Washington, D.C.

D ea r C ongres sm an K a s t e n m e ie r : We submit the following letter and the 

enclosed resolution for inclusion in the report of the amnesty hearings to be held 

by the Subcommittee on Courts, Civil Liberties and the Administration of 

Justice.

The free world has recently been shocked by the deportation of A. Solzhenitsyn. 

Much as we sym pathize with him, abhor the repressive tre atm ent Russia hands 

out to its free thinkers and rejoice in the rising wave of world opinion th at may 

have some effect on the inte rnal policies of Russia, we cannot help remembering 

th at there are at least 75,000 American exiles in countries throug hou t the world 

who cann ot retu rn home without the threat of prison. Wherever they are, the y 

are daily reminders of the United States governm ent’s vindictive oppression 

of those who would not kill at the command of th e state. These words are none 

too harsh to describe the a rrest of one such resister at his fath er’s funeral.

We also remem ber the several hundred objectors still in prison because they 

would not pa rticipate in a war t ha t has been labeled even by high political figures 

as a “tragic mistake ” and th at supposedly ended in “peace with hono r” over a 

year ago. We remember the hundreds with criminal records because th ey followed 

the dictates of th eir consciences.

Nor can we forget the hund reds of thousands of veterans who were made 

perman ent second-class citizens when given less-than-honorable discharges 

because they woke up to the insanity and horror of American activities in Sou theast Asia, refused to be a part of it any longer, escaped thro ugh drugs or, becoming 

temporarily unbalanced, committed some crazy act. If given the choice, they 

might even prefer a 5-year stretch in Siberia to the life-time of discrimination 

th at they face in America.

Until universal and unconditional amne sty is granted to these victims of a 

regrettable error in military policy, the United States cannot hope to “bind up 

the wounds of war” , can only point a hypocritical finger at political repression 

in other countries, and as self-acclaimed leader of the “free” world, can only h ang 

its head in shame.

Sincerely,

A nn a M. H u n t, Coordinator.

R eso lu tio n of L ep oco (L e h ig h -P oco no C o m m it tee o f C o n c e r n ) T o P e t it io n

t h e P r e s id e n t an d C o ng ress of th e U n it ed Sta tes T o G ra nt T ota l

an d U n c o n d it io n a l Am nes ty

Whereas conscription has always been contrary to the basic ideals of America, 

and involuntary servitude is specifically forbidden by the 13th amendment to the 

Constitu tion of the United States; and

Whereas many Americans have opposed the undeclared war of aggression in 

Southeast Asia conducted by the commander-in-chief of the United States m ilitary 

forces w ithout proper authorization by the Congress; and

Whereas the conduct of this war has sometimes been in violation of interna tional 

law binding on the United States of America, and responsibility for conduct has 

been placed upon individuals as well as governments by the Nuremburg Principles; and

Whereas the cease-fire agreements signed in Paris stress the spirit of reconciliation among all dissident parties in the recent conflict, and President Nixon 

has offered cooperation and aid to the North Vietnamese; and

Whereas President Nixon has often proclaimed his goal of healing the wounds 

of war and dissent within our own country, bu t co ntrary to the spirit of reconciliation, insists upon punishment for those Americans who resisted the draft or refused to par ticipate in this war; and

Whereas Australia has already dem onstrated the way of compassion a nd desire 

for peace by abolishing the draft, cancelling all legal procedures against resisters 

and has released from prison all those previously senten ced;

Be It Resolved th at LEPOCO (Lehigh-Pocono Committe e of Concern) hereby 

petitions the President and Congress of the United States to:

(1) grant immediate universal and unconditional amnesty,

(2) remove any thr ea t of punitive action,

(3) clear all criminal records, and
661

(4) restor e full citizenship rights to all those civilians and members of the 

military thre atened with or under indictment, sentenced, holding less tha n 

honorable discharges, in prison, in hiding or in exile because of their resistance 

or opposition to the d raf t and/or to the war.

Drafted: March 11, 1973, Passed: March 13, 1973.

U nion of Amer ican H eb re w Con gr eg at ions ,

R el ig io us Act ion Cen ter, 

Washington, D.C., February 25, 1974-

Hon. R ob er t W. K ast en m ei er ,

Chairman, Subcommittee on Courts, Civil Liberties, and the Administration of Justice,

House Jud iciary Committee, Washington, D.C.

D ear M r. C hair m an : At our Biennial Convention held in New York City

last November, the Union of American Hebrew Congregations adopted the 

attach ed resolution supp orting unconditional amnesty. The Union of American 

Hebrew Congregations represents more than 700 Reform synagogues throug hou t 

the United States, with a combined membership of approximate ly one million 

persons.

We are pleased th at your subcommittee will be holding hearings on this subjec t 

soon, and would apprecia te your including this let ter and the a ttache d resolution 

in the record of the hearings.

We urge th at your subcommittee report out legislation granting unconditional 

amnesty to the young men who found tha t they could not par ticipate in the Vietnam war and so went to prison, resisted or deserted.

Tha nk you for your courtesy.

Sincerely yours,

Alber t Vor sp an.

U nion of Ame rica n H eb re w Con gr eg at ions

am nesty

We are deeply gratified by the ceasefire accord presently in force in Vietnam. 

It has brou ght cessation to a war we have long opposed and for which we saw 

neither moral nor legal sanction.

We express our most reve rent hope t hat this ceasefire will ripen in to an abiding 

and lasting peace, and th at it will provide the needed opp ortuni ty to reconcile 

the deep domestic divisions which so em bitter our society. It is time now to 

“bind up the wounds of th e nation.”

Based on the Jewish religious concern to reconcile generation to generation, 

person to person and in consonance with the prophetic cry of Malachi: to turn 

the hearts of the pare nts to the children and the hearts of the children to the 

parents, it is our considered judgment th at the first way to affect this healing 

process is by Congress granting unconditional amnesty to those young men who 

found, early or late, th at they could not partici pate in th at war and so went to 

prison, resisted or deserted. As we make peace with our enemies, let us also 

make peace with these, our youth.

With full respect for those who chose to serve and those who sacrificed so 

much for their country, we call upon Congress to gra nt unconditional amnesty 

as an act of reconciliation and compassion th at can help speedily to reunite the 

American people for the key task of justice and peace which lie ahead.

Stam ford-G re en w ic h M on th ly M eetin g of th e R el ig io us Soc iet y of

F ri en ds

Sta mf or d, C onn.

Willia m Dix on, Esq.,

Counsel, Judiciary Committee,

Rayburn House Office Building,

Washington, D.C.

D ear M r. D ix o n : I am enclosing a statem ent approved by our Meeting at 

its Meeting for Business held on Sunday Feb rua ry 17, 1974, in sup port of unconditional amnesty for all civilian and military war objectors.

Sincerely,

C ar l J. H ol la nd er, Clerk.
662

STATEMENT

We feel a deep concern for all those whose lives have been directly affected 

by the war in southeast Asia. Especially we are concerned for th e young American 

who faced majo r decisions affecting his future, often with little or no guidance. 

The conflicts tha t afflicted American society over the war in Vietnam, Cambodia 

and Laos, also were deeply suffered by the men who were called upon to enter 

the military and carry out acts of aggression against hum an beings who had 

neither threatene d or atta cke d the United State s. The moral problems posed 

excruciating choices to young men. We feel compassion for all of them, those 

who accepted conscription with the anguish, disillusion and psychological inju ry 

so many bore, or who suffered physical impairment, or who were killed, and 

those men whose conscience was aroused and who resisted the draft or military 

by refusing to engage in what they believed were immoral acts.

We reaffirm the testimony against outward war and strife enunciated by 

George Fox over 300 years ago, puttin g the duty of conscience above temporal 

duty. We ask for legislation providing full and unconditional amnesty for all 

who face or have suffered penalties for resisting the dra ft or military: 1) permitting the return of all those outside the U.S.; 2) providing the prompt release 

of all men currently held in civilian or military prisons; 3) dropping pending or 

potential prosecutions; 4) restoring full civil rights and honorable discharges for 

all who have lost such rights.

To single out any group of citizens for special p unishment when all have borne 

the trials imposed by circum stance seems to us to be unjust. We believe th at 

peace and justice for all men requires understa nding. We urge you to extend our 

cou ntry ’s trad ition of granting amnesty. A congressional act gran ting unconditional amnesty now would be a positive and welcome move toward reconciliation with all of our citizens.

F eb ru ar y 18, 1974.

William Dix o n, Esq.,

House Committee on the Ju diciary,

Raybu rn House Office Building,

Washington, D.C.

D ea r M r. D ix o n : We ask th at the following form al statem ent be included in 

the record for the House Judiciary Committee amnesty hearings on March 7 

and 8.

Sincerely,

COALITION OF AMERICAN WAR RES ISTERS IN CANADA

B y : Buff P ar ry.

(For: Regina Committee to Assist War Objectors, Toronto Anti-Draft 

Programme, Otta wa Aid Committee, Winnipeg Committee to Assist War 

Objectors, Amex-Canada, Calgary Committee on War Immigrants, Vancouver 

American Exiles Association, Vancouver Committee to Aid American War 

Objectors, Halifax Committee to Aid American War Resisters.)

F orma l Sta te men t of th e Coa lition of A me ric an War R es is te rs in Canada

fo r th e H ou se J ud iciary Com mi tt ee H ea ri ngs on Amn esty to be H eld

M arc h 7 & 8, 1974

With the oddest assortment of people stepping aboard the amnesty conscienceclearing crusade, we, of the Coalition of American War Resisters in Canada, 

wish to emphasize our position on the subject of amnesty. As we stated in our 

unity statem ent of U.S. War Resisters on Amnesty, adopted by all present at our 

Vancouver, B.C. Dec. 13, 1973 meeting, we are firm in our conviction that,

As people who have been opposed to the United States government’s war in 

Indo china and face prosecution or other loss of rights because of our opposition, 

we demand universal, unconditional amnesty. This does not mean forgiveness or 

forgetfulness for our acts of resistance, of which we are proud. Nor does it mean 

th at we are begging permission to "re turn to the fold. ’ We are calling on the 

American people to demand with us th at the U.S. government stop any efforts 

to prosecute us or deny our rights because of our just acts of resistance.

Among those who are arguing for conditional amnesty are Melvin Laird and 

former Secretary of the Army, Robert F. Froehlke. The San Francisco Chronicle 

published an editorial January 25, 1974 concerning Froehlke’s and Laird’s position 

on amnesty, with the following included.
663

Both urge congress to act before the 1976 elections and to att ack the task 

without vindictiveness. . . . ‘We should to the best of our ability forgive and 

forget’, says Froehlke.

The editorial, after insinuating th at the Laird-Froehlke stand is daring, concludes with “The time is clearly at h and to tackle it ” with “it ” being the “grave 

question” of am nesty.

On the “grave question” of war, Froehlke had this to say before the Town Hall 

assembly in Los Angeles, California, Jan uary 22, 1974, in an address concerning 

conditional amne sty for a select 4,500 exiles,

If there will always be war, then shouldn’t we have an army to fight those wars? 

The campus people, in their idealism, will not buy the belief th at wars are 

inevitable.

Nor will the Coalition of American War Resistors in Canada “buy” the belief 

th at wars are inevitable. We hereby disassociate ourselves tota lly from the 

Laird-Froehlke position on amnesty and reemphasize th at our definition of 

“am nesty” is in no way the definition the conscience-clearers are raising. Ours is 

closer to linguist Noam Chomsky’s which was stated in personal correspondence,

. . . one gives amne sty for crimes, not for the performance of one’s d uty as a 

human being.

Always remembering,

Coalition of American War Resisters in Canada,

By: Buff Parry.

(For: Toronto Anti-D raft Programme (Danny Zimmerman), Otta wa Aid 

Committee (Don Pease), Winnipeg Committee to Assist War Objectors (Tim 

Maloney), Regin a Committee to Assist War Objectors (Buff Parry), AmexCana da (Jack Colhoun), Calgary Committee on War Im migrants (Mike Johnson), 

Vancouver American Exiles Association (Darryl Adams), Vancouver Committee 

to Aid American War Objectors (Larry Martin), Halifax Committee to Aid 

American War Resisters (Eric Stine).)

Oakville, Ontario, Canada, March 2, 1974.

Dear Representative K astenmeier: It is my unde rstanding t ha t hearings will 

be staged on the question of amnesty. I hope these documents reach you in time.

I hope th at I can serve you as a reasonable and reliable source if you requ ire 

testimony or documentation. I am a high school guidance counselor, and hap py 

to be living in Canada. Nevertheless, it has occurred to me th at one day I will 

need to attend the funeral of my parents or carry out emergency family obligations when my family most needs my aid.

For the la tte r reasons, and most assuredly to bring dignity and righteousness 

over the indignities of Vietnam, am nesty needs to come.

I’m sure th at at this point in time, the American people will finally listen to 

you.

Yours truly,

Nicholas M. Carpinelli.

A Y oung Man’s Case Against Military Indiffe ren ce, I njustic e, and

I llegality

(By Nicholas Carpinelli)

There is a respect th at I have for all hum an life. This respe ct has remained 

consistent since I was 18, when I filed my first selective service application and 

its accom panying letter of conviction. At th at time I believed th at I migh t be a 

conscientious objector except that I believed th at where internatio nal educ ation 

and justice had failed (the deterioration of which can be the only justific ation for 

war), the U nited States had no other recourse bu t to invest grea tly in its national 

secu rity and territorial integrity. I am a realist who fully understands and respects 

the military role of this great nation. Each man in a democracy, however, must 

choose for himself whether he is a teacher and shaper of hum an behavior, or a 

destroyer of life. This fact becomes increasingly timely and imm ediate when the 

American Congress, aided by the industrial-military complex, has launched an 

illegal war against both Vietnam an d the American Electorate!

I worked hard and patiently as a teacher in one of America’s worst ghettoes. 

I was often frustrated and hu rt by Chicago’s lack of conscience vis a vis the
G64

Negro. But I loved my children and was dedicated to them while hating the 

educational system that I inherited— overcrowded rooms and no counseling or 

attention for these problem children. There was only my dedication amidst a sea 

of unfeeling people, hardened by the system.

In the words of the distinguished former Secretary of State Dean Rusk, military 

service can and should be waived for students of merit who would contribute to 

the national welfare in either the Peace Corps or work in our cities’ ghettoes. 

Although this has not as yet become law, the local draft board must have the 

intelligence and the discretion to recognize the priority that must be placed on our 

vital problems at home. Without people of experience and conviction contributing 

to the national welfare, disruption and social ’deterioration will continue to occur 

domestically.

My two years service in the National Teacher Corps was a commitment as 

dangerous and frustrating as any tour of duty in Vietnam. I taugh t in a riottorn area of Chicago’ s South Side where violence and murder were the rule of the 

day. My white presence was daily threatened in a black power area. Children 

of ages nine to thirteen were already equipping themselves with homemade 

“ zip” guns for gang warfare against the “ Disciples,” “ Camaro’ s,” and “43rd 

Street.” My teaching experience included disarming youngsters of weapons, 

breaking up fights, and acting as security watchman for the school when high 

school students and local gangs threatened to attack (steel chains were also locked 

to the doors to insure a rather precarious safety). During one of my lunch hours, 

my sixth grade pupil, Robert Hampton, was shot. As was to be expected the 

police swarmed around the school offering their notoriously inadequate “ token 

protection after the fact .”

I believe that I have already served my country courageously; I do not want 

another tour of duty for the U.S. Army. I have been trained to work with problem 

children for which I was awarded a Master’s Degree in Urban Education and 

Teacher Corps certificate. The Teacher Corps certificate reads that I “served as 

a member of a special band of men and women who typif y this nation’s intent that 

equal and adequate education becomes a reality for all American children, having 

demonstrated service and achievement in school and community . . .”

At present I am employed by the Farmingdale Public Schools as a special 

teacher in a project that is both federally supported and locally administered. My 

program, a Title I project of the Department of Health, Education, and Welfare, 

involves an almost clinical approach to the growth and teaching of Farmingdale’s 

most poorly educated, problem learners. Farmingdale would be hard pressed to 

find a teacher of my experience and dedication. On several occasions my students 

asked me whether I would miss them next year (they were concerned because they 

had found both an understanding teacher and a friend), while another student 

graciously invited me to dinner at his home (an Italian meal brilliantly executed 

by one of Farmingdale’ s finest Irish families).

In addition I am now writing a day to day curriculum for the “slow learner” 

under the auspices of the Federal Government and the Farmingdale Public 

Schools. This project is designed to develop lesson plans in the social studies, and 

will take a good deal of time to complete. Its importance to the future of the 

children of the Farmingdale district is of inestimable value.

The content of this entire self-portrait has been articulated to Local Board No. 3 

of Great Neck, N.Y . Their answer to me was a I- A classification. It is because of 

the draft board’s indifference and “ deaf ear” to my case that I was compelled to 

appeal the decision and apply for a personal interview, which I was granted. 

“ Procedural Justice” had taken its course. The personal interview was a mechanical farce of questions imposed by the interviewing panel. The questions that 

they asked me were loaded with innuendoes and a style of pre-practiced intimidation. The Appeal Board voted unanimously against my case and I was again 

reclassified I- A with an instantaneous letter of induction for April 17, 1969!

In desperation I telephoned Mr. William J. Dougherty, Government Appeal 

Agent and dubious public relations man for the Great Neck Draft Board. I 

explained my case to him. I told him of my teaching background and my present 

contribution to the Farmingdale community. I asked him why I was one of the 

few teachers (no teacher has been drafted in Farmingdale), on Long Island who 

was not reclassified 2-A for teaching. His irreverent answer to me was “ Well, 

you understand, son, that the people on the draft board have a big job to do and 

tha t th ey can’t do justice for everyone!” I don’t know how, but I thanked the man 

for his services and tried to remain as respectful of his position as I could, without 

either laughing or crying over his outrageous hypocrisy. Mr. Dough erty’s “ well
665

you can’t win them all” attitude is quite parallel to the total indifference with 

which my case was handled by Local Board No. 3 of Great Neck. It is not reassuring to know th at at a certain date you will be a Vietnam casualty because 

“everybody makes mistake s.” Th at carries as much logic as the argu men ts over 

the shape of a “peace tab le” while innocent boys are getting killed, and broken 

families must live in the shadow of death for lost children and husbands.

At the insistence of the Farmingdale Public Schools, the Great Neck Board 

gran ted me a postp onem ent of induction until the first dra ft call in July. This 

occurred as the result of a letter th at explained the undue hard ship th at would 

prevail upon my eighth graders as the result of my induction. In other words the 

draft could give a damn about the education of our youngsters, until someone 

stands up a nd says you are ruining and disrupting the lives of children who require 

special education.

I must adm it that a t this point I am outraged. The bigotry and the injustice of 

the dra ft have gone too far. The majority of teachers on Long Island will receive 

a deferment, while with my background, Master’s Degree, and perm anent certification Great Neck will in duct (abduct) me into the army. Friends of mine are 

receiving deferments from Grumman’s for ju st abo ut everything including sweeping the floors—Why?—because Grumman’s is an industrial-military pl ant essential 

to the security of the natio n. The fact th at someone my age has the capa city to 

screw a n ut on the bolt of an airplane makes that job much more “ essential” than 

my job which only has to do with the lives of children an d the futu re of American 

democracy. I find something ironic about this latte r situation.

It should be clearly understoo d th at absolutely no life should be spared for the 

farce in Vietnam. As I presently fear induction, I hope tha t no young man my age 

loses his deferment.

As a teacher of social studies I m ust instruc t all the citizens tha t re ad this paper, 

th at the war in Vietnam has been totally discredited, and found illegal and immoral 

on all points. Many of the groups that are fighting the U.S. in South Vietnam are 

innocent nationalists, not communists. The threa t of communism was throw n to 

the American public as a fraud to conceal the act tha t an increasingly dangerous 

military -industrial lobby in Washington has been pushing the Vietnam War on 

and on, because it is good for big business! This argument has j ust been sub sta ntiated by General David Shoup in his article “ The New American Militarism,” in 

the April 1969 issue of The Atlantic. The Pentagon has been lying to th e American 

public, as was brought out by the Senate Foreign Relations Committee vis a vis 

Undersecretary of Defense David Packard’s fraudulent testimony concerning 

Dr. Wolfgang Panofsky and the ABM system.1

The dra ft system and the military-industrial complex, as President Eisenhower 

had warned, is getting out of hand. The Army is violating democratic processes 

at every turn . When America voted for Nixon, it was voting for an en d to th e war. 

Instead of honesty from the new administration , American citizens have received 

Madison Avenue deception, higher taxa tion, and a perm anent continuation of 

national crime and chaos in th e cities, along with every other national problem.

The militarists are making money on the war, while the taxpayer is paying $30 

billion a year. It is now time for Long Islanders a nd America to act. Congress m ust 

not appropriate any more money to the war. It will be the responsibility of every 

taxpayer to pressure Congress on this issue. There is much t ha t can be done.

I am not a conscientious objector to war, bu t I dete st th e Vietnam war on legal, 

moral, and intellectual grounds. The laws of America are based on and granted 

power by the justic e of God. When the m ilitary breaches the right of an individual 

to resist induction into the war in Vietnam, the military has broken the justice 

th at makes America a grea t democracy. It throws America into a sea of ugly 

despair known as totalitarianism. How ironic t ha t the great heroes of th e militar y 

who are supposed to be containing communism abroad, have broug ht a communist 

styled form of injustice to America.

Once a man is in uniform, the C onstitution of the U mited States and the Bill of 

Rights no longer apply. George Washington, Thomas Jefferson, and Benjamin 

Franklin would roll in their graves if they saw what the m ilita ry-indus trial complex 

was pulling off. The great Chief Justice John Marshall would have declared the 

war in Vietnam and the Army’s breach of the freedom of speech, UN CO NS TITUTIONAL! So what is the Supreme Court doing? Or is the Supreme Cou rt 

perm anently out to lunch!

1

 Packard claimed th at Panofsky approved the ABM when Indeed he hadn 't been 

interviewed.

31-658 0—74 14
666

Democracy is now being th reatened in these United States. The President and 

his administration are now acting without the consent of the governed. Why 

hasn’t the Supreme Court, which used to be the third branch of government 

declared the war unconstitutional?

I have recently decided neither to bomb my dra ft board, burn my draft card, 

scream profanities a t police officers, go to jail, nor catch the first tr ain to C anada. 

I am an American citizen, and I believe in the evolutionary processes of law, 

freedom, and democracy. I wan t to stay home and challenge the m orality of this 

issue. I hope th at the Adm inistration has the honesty to face me; only the n will 

America be a bette r place in which to live. I am a patriot of the American 

Rev olutionary variety, I shall fight for justice aga inst injustice, I shall fight 

taxation withou t represen tation, and I shall remain an American until the races 

of this co untry have united as brothers.

Finally, I shall mail a copy of this lette r to my S enators and all interested publishers, who will in turn inform the American public as to the fate of this young 

citizen, Nicholas Carpinelli, in the face of the notorious Local Dr aft Board No. 3 

in Great Neck. The question then becomes, “ Does America need a highly trained 

and specialized teac her more tha n it needs a lackey for the Army?” Address your 

comments to Local Board No. 3, 17 Maple Drive, Second Floor, Great Neck, 

N.Y. 11021 and to your congressman.

I mmaculate Heart Community,

Los Angeles, Calif., March 3, 1974-

Congressman R obert W. Kastenmeier,

Chairman, House Judicia ry Subcommittee, No. 3,

U.S. House of Representatives, Washington, D.C.

Dear Congressman Kastenm eier: Enclosed is the sta tem ent for amnesty 

endorsed by the Action-for-Social-Justice Committee of the Imm acu late He art 

Community. The Community is a group of 235 women and men who strive b oth 

individually and collectively to give witness to the Christia n message.

I was told by Fr. Edw ard McGowan, S.J., Director of REC ON CILE, t ha t your 

subc omm ittee would be having hearings on amnesty next week, and th at all 

statem ents would go in the record. I trus t th at this is true, and pra y th at your 

hearings will persuade the members of the subc omm ittee to proceed with all 

delibera te speed toward the ena ctm ent of universal and unco nditional amnesty. 

Sincerely yours,

Pa t Reif, HIM,

Action-for-Social-Justice Coordinator.

P.S. The I.H. Community consists of 235 women and men committed to giving 

witness to the Christian message.

Statement Concerning Amnesty

We, the members of the Action-for-Social-Justice Committe e of the Im maculate 

He art Community, believe in universal and unconditional amn esty for all those 

who were or are in conflict with the law for nonviolen t acts of opposition to the 

war in southea st Asia.

Our belief is rooted in two fundam enta l teachings of our Christian heritage: 

1) the defense of freedom of conscience, th at is, the duty of individuals to judge 

for themselves what is right in the face of conflicting obligations; and 2) the 

recognition th at our society is founded on a higher law tha n th at enacted by 

hum an persons.

We understand amnesty not simply as forgetting or forgiving, bu t as deliberately deciding to gra nt imm unity for those who face prosecution, and to release 

those now indicted or imprisoned. In effect this m eans blotting o ut the “offense” , 

wiping the slate clean—for the sake of reconciliation and a new beginning.

It is our conviction th at none of us came out of the war pure and blameless. 

There is need for reconciliation between those who made the war, from whatever 

motive or intent, those who foug ht the war, with whateve r pride or regrets, those 

who fled the war, for whatever reasons, noble or ignoble, those who lost loved 

ones in the war, with whatever subs equent feelings, and those who opposed the 

war, bu t too late and too feebly.

So, rath er than preoccupying ourselves with the painful and divisive process of 

legal prosecution, we favor amne sty as a way of freeing ourselves for the task of 

post-war reconciliation and healing.
667

By “univers al” amne sty we mean to include the estimated 10,000 dr aft resisters 

and military deserters who are in civil or military prison, on probation, or awaiting 

court action; the 80,000 dra ft resisters and military deserters who are und erground in the United States; the 60,000 to 100,000 dra ft resisters and military 

deserters who are in exile; and the 388,000 Vietnam veterans with “less-thanhonorable” discharges.1

By “unconditional” amnesty we mean th at no form of alte rnative service 

should be required as a condition for granting immunity from prosecution or 

release from prison. Such service is punitive, and it imputes guilt to potential 

recipients—both of which we find unacceptable.

We canno t now restore to life our dead soldiers, nor those of the Vietnamese. 

We cannot undo the devastation wrought upon the lands and people of Ind ochina. We cann ot assuage the suffering of one group of Americans by being vindictive toward another. But we can repen t, and begin again—to “bind the wounds 

of the nation” (Abraham Lincoln) and to work for a lasting peace.

Kansas City, Mo., March 1, 1974-

Hon. R obert W. Kastenmeier,

Chairman, Subcommittee on Courts, Civil Liberties, and the Administration

of Justice

Dear Sir : The Secretary of our Provincial Assembly sent a copy of you r 

letter regarding the statem ent we sent last August on our position on amn esty. 

We would like to have it included in the record of the hearings. I am enclosing 

our statem ent in case yo u no longer have the first letter.

Sincerely,

Sister Audrey Olson, C.S.J.,

Coordinator, Social Action Secretariat

St. Louis Province, Sisters of St. Joseph of Carondelct.

St. Louis, Mo., March 1, 1974-

Hon. R obert W. Kastenmeier,

Chairman,

Subcommittee on Courts, Civil Liberties, and the Administration of Justice

Dear Sir : As the Provincial Assembly of the St. Louis Province of the Sisters of 

St. Joseph of Carondelet, we are striving to live the gospel message of peace and 

are committed to the special task of helping to bring abo ut reconciliation in tod ay’s 

world.

For several years, families, communities, and people of our nation have been 

divided over the rightness or wrongness of our government’s military actions in 

Southeast Asia. Those who have experienced the grea test hostility and have been 

called upon for th e grea test sacrifices have been the yound men who had to choose 

whether or n ot to serve in our nation’s m ilitary forces. Ironically, both those who 

served and those who refused to serve have found themselves among the chief 

victims of our nation ’s strife.

Uniting with other religious leaders in our nation, we call upon our government to take prompt and specific steps to transform the climate of hostility, 

generated a t home and abroad as a result of its military involvement, into a climate 

of reconciliation and understanding. We support the resolution of the National 

Conference of Catholic Bishops:

Special atte ntion must be given to the young people of our nation whom the 

war has profoundly affected in so many ways, material, psychological, and 

spiritual. Our returning veterans, and especially the wounded and the prisoners of 

war, must be given every possible consideration and assistance to enable them to 

reintegrate their personal and professional lives into civilian society. In a spirit 

of reconciliation, all possible consideration must be given to those young men wh o, 

because of sincere conscientious belief, refused to participate in the war.

We therefore urge you to gra nt immediately, amnesty to those who, for reasons 

of conscience, are in exile, in prison or in legal difficulty because of the war. 

Respectfully yours,

Sisters of St. J oseph of Carondelet.

*The estimated figures appeared in the New York Times, Jan. 30, 1973.
668

The Legal and Historical Case for Amnesty

O n e N a tio n ,

In d iv is ib le

by Harrop Freeman

A FELLOWSHIP RE PR INT

(from the Winter, 1972 issue)
669

Amnesty As Reconciliation

Though the war in southeast Asia is far from over— despite the lull in our consciousness of its still-terrible depradations—it is time to put our energies behind the cause of 

amnesty. Most simply, amnesty will involve release of the 

more than 500 draft resisters now in our federal jails, immunity from prosecution for the 70,000 or more refugees 

from the draft who are living as exiles in Canada and other 

nations, and freedom for the 9,500 soldiers either serving 

sentences in military stockades or confined there awaiting 

trial for violation of the military code. Amnesty is an issue 

that can reactivate our peace impulses and contribute to a 

desperately needed reconciliation in the United States— 

reconciliation between a government that made a tragic mistake and the young persons of all classes and colors who are 

being victimized by that mistake.

Amnesty is an issue which has already been eloquently 

subscribed to by prominent Americans. In a statement issued 

October 15, a group including Kenneth Clark, Erik Erikson, 

Ernest Gruening, Charles Silberman and Andrew Young 

petitioned Congress, the President and the public to bring 

amnesty into the very center of our current thought and 

action.

We say: Let them go and let their records be made clean. Let

go those who refused to fight a war that we as a nation have

come to detest and to believe wrongly fought. Let go those who

ran afoul o f military law during a war which many think is itself

illegal. Erase the taint on the good name and careers o f young

men with war-connected prison sentences or less than honorable

discharges.

Let there be no legal recriminations among ourselves for

the fighting or the refusing to fight this war. The healing and

reconciliation of the nation, its redirection toward peace with

itself, will be difficult enough. It will be folly to make it even

harder by exacting heavy legal penalties from these young men.

Advocating that those who fled to Canada and elsewhere 

be permitted to return, freed of legal impediments, the statement notes that the alternative is the creation of a class of 

political exiles “haunting us for decade after decade.” Abra ­

ham Lincoln’s granting of amnesty to the soldiers of the 

Confederacy is seen as a precedent for an act of amnesty 

today.

But President Nixon is not President Lincoln, and appeals 

like this one tend to be stigmatized as the crying of liberals 

and bleeding-hearts. So, in backing this statement, we would 

hope that the amnesty issue would be taken up within the
670

very center of the churches, not merely at the peace-movement edge. And we would encourage consideration of a 

symbolic act. Let the ecumenical Clergy and Laymen Concerned see that a brief statement on amnesty, relating it to 

the new beginning and reconciliation of Jesus Christ, is circulated to local congregations throughout the land and let 

clergy allow this petition to become an “offering” from amnesty-inclined church members to the President and Congress. If a truly grass-roots effort to solicit petitions and other 

overtures from local lay people were undertaken, we would 

have at once a far more effective lobby than is now representing the churches, and we would also create discussion of 

amnesty and its relation to the gospel at precisely the place 

where a renewed church should look for renewed social relevance— the local congregation.

To this we would add not a proposal but a prayer that 

issues will arise which will enable law-abiding Americans 

to resist the tide in our national life that evidences a cynical 

governmental disregard for basic liberties and justices. We 

see amnesty as one such issue to which a broad spectrum of 

Americans can relate if the approach to them is one of 

genuine reconciliation.

(An editorial, reprinted by permission from The Christian 

Century, November 24, 1971.)

O n e N a tio n , I n d iv is ib le

At no time in the history of this country has the nation 

been so divided, the opposition to war so widespread, the 

cry so loud, for “law and order,” on the one hand, and on 

the other, that liberty is sacrificed and justice is dead. Nor 

have the courts and jails ever been so full of political protesters.

Although some have placed the figures higher, there are 

at least 140,000 AWOLs and draft resisters, at least 100,000 

men who have failed to register or otherwise avoided the 

draft, at least 35,000 civilians since the beginning of World 

War II convicted in draft cases. There are untold numbers 

of soldiers who have been disciplined for anti-war sentiments 

and activities, perhaps 200,000 people of all ages arrested, 

imprisoned and/o r fined for anti-war marches and demonstrations, a sizeable number being tried or convicted for civil 

disobedience, burning of draft records and like offenses, not 

to mention those charged with supporting the Black Panthers
671

or demonstrating at political conventions as in Chicago. All 

these are asserted to be political offenses and are presently 

unamnestied and unpardoned. We are not speaking here in 

any sense of so-called “criminals” who refuse the duties of 

society or seek to save their own skins. We are talking about 

priests such as Berrigan and Groppi, academics such as 

Lynd, baby doctors like Spock and the sons and daughters 

of cabinet members and middleclass America. In the college 

communities today (on which we must depend for future 

leadership) possibly one student in every three has in some 

way been involved in these political “crimes” . For many, acting on their convictions has meant a loss of their right to par ­

ticipate in government.

Any nation, and particularly a democracy, needs all its best 

minds. It cannot afford to banish its potential leaders— those 

who ardently seek change as well as those who defend the 

status quo. Amnesty has been devised as a means of society 

“forgiving” those whose acts were basically political, even 

though at the time society branded them as criminal. In this 

way, we build the “nation indivisible.”

Amnesty in Pre-American History

Amnesty is a concept of public law, derived from the 

Greek amnestia (oblivious intentional overlooking, from the 

same stem as amnesia). It is the act of the legal sovereign 

voluntarily nullifying certain “criminal” acts against the 

state, almost always political offenses. Some view it as a p rinciple of international law binding on the sovereign.

Most historians view amnesty’s beginning in the act of 

Thrasybulus, who in 403 B.C., after the expulsion of the 

Tyrants from Athens, forbade further prosecution or action 

against citizens for previous political acts and required an 

oath of amnesty to erase all political strife from memory. 

There are other examples in the Greek period. In Roman 

law the practice became common after attempts at political 

overthrow or intrigue, and was known as restitutio in integrum.

France has a long history of amnesties after virtually every 

civil strife. These were called lettres de remission generate

or lettres d’abolition. Instances include: the Edict of Nantes 

(159 8), nearly thirty examples between the Napoleonic 

imperial decree of 1802 and the amnesty of 1881 following 

the Paris Commune and 1871 civil disturbances, amnesty 

of wartime deserters and military service evaders (191 9),
672

amnesties for Alsatian insurrectionists and communist agitators (19 20-40 ), amnesties of persons convicted of warrelated crimes in World War II and the Algerian war.

With English history we begin to see both the importance 

of amnesty in Anglo-American law and the source of much 

of the confusion between pardon and amnesty. The most 

famous early amnesties were in 1651 after the Civil War, in 

1660 by Parliament under Charles II, in the Fenians Act of 

1873 and the Boer amnesty of 1903. The theory of pardons, 

remissions and amnesties in Britain was that these were 

“sovereign” powers embodied in the king. We must realize 

that the king holds powers in many capacities: as executive, 

as judiciary, as the king in Parliament. Because all pardons, 

remissions, and amnesties were issued in the name of the 

king little attention was given to the action of Parliament.

In the Americas (excluding the United States) the practice 

of amnesty is well developed. A survey of only the year following World War II would show that at least in Argentina, 

Brazil and Canada amnesties were granted to political prisoners. Similar action could be found in the same year in Bulgaria, Greece, India, Italy, the U.S.S.R., Yugoslavia and other 

European countries. In 1946 General MacA rthur released 

nearly one million political prisoners in Japan and General 

Clay proclaimed an “amnesty for over one million German 

political offenders under age twenty-seven.”

Amne sty in th e United States

United States history is replete with general “pardons” and 

“amnesties” for political offenses. Immediately after the Revolution, Congress restored all rights to the Loyalists who did 

not flee to Canada. On July 4, 1794 President Washington 

granted “pardons” to all who participated in the “Whiskey 

Rebellion.” In 1800, President Adams gave a general pardon 

to “the late wicked and treasonable insurrection against the 

just authority of the United States of sundry persons in the 

counties of Northampton, Montgomery, and Bucks, in the 

State of Pennsylvania” , the so-called “house tax insurrection” 

of 1798.

The Civil War period was marked by extensive amnesties, 

even for treason, and by conflict between Congressional and 

Presidential power. Presidents Lincoln and Johnson were 

both much quicker in forgiving the insurgents than was Congress. In the confiscation law of 1862 Congress had given 

the President power to “pardon and amnesty” those participating in the rebellion. Lincoln acted twice, Johnson four 

times. The Presidents accordingly labelled their action as
673

“general pardons and amnesty” for those participating in 

rebellion. Progressively broade r amnesties were proposed although the most inclusive (all participants except Jefferson 

Davis) was defeated by Sumner. Congress then enacted the 

Wade-Davis amnesty bill on the theory that it had not delegated the total amnesty power to the President. Finally, in 

1876 Congress passed a complete and all-inclusive amnesty.

After the Civil War both the practice and the confusion of 

pardon-amnesty continued. President Wilson pardoned a list 

of political opponents to World War I and refused others 

(e.g. Eugene Deb s). President Coolidge remitted citizenship 

and civil rights to men who deserted the armed forces between the end of World War I hostilities and the formal 

termination of the war (called an amne sty). Franklin D. 

Roosevelt granted “full pard on” on Christmas of 1933 to all 

violators of the World War I draft laws and the 1917 espionage law.

But the draft Act of 1940 introduced some very confusing 

history. At Christmas, 1945, President Truman granted a 

full pardon for all federal non-military crimes to every World 

War II honorably discharged veteran, stating at the time that 

he was considering a general “amnesty”. In response to this 

an independent Committee for Amnesty was formed of such 

well known persons as A. J. Muste, Dorothy Canfield Fisher, 

Henry Luce, Pearl Buck, Thomas Mann, Thornton Wilder, 

Harry Emerson Fosdick, Thurgood Marshall and Fran k Graham. In 1946 President Truman appointed a “President’s 

Amnesty Board” headed by Supreme Court Justice Roberts. 

A Gallup poll of January 28, 1947 showed 69% favoring 

amnesty and 23% opposed. Over 100 organizations, representing church, union, civil rights and humanitarian groups, 

urged amnesty. Major newspapers editorialized for amnesty. 

Then the President’s Amnesty Board did a peculiar thing by 

in effect resolving itself into a parole board which considered 

the Selective Service violators case by case. Ultimately it 

reached 1523 cases of obvious injustice (out of 15-20,000 

actually convicted) who were thereupon pardoned by the 

President in December 1947. The Board then ceased to 

function. After America entered the Korean War, there was 

again a strong demand for amnesty (for both war s). Instead 

of granting it the President in December, 1950 proclaimed 

pardons (similar to the Coolidge action) for all federal crimes 

to veterans honorably discharged with one year’s service after 

June 1950 and remitted citizenship and civil rights to all 

persons convicted of military desertion from August 1945 to 

July 1950.
674

There was again an organized move for amnesty in 1953, 

but nothing came of it. No further amnesties or general 

pardons have occurred since. Therefore, all political prisoners 

not covered by the Roosevelt Proclamation of 1933; all 

Selective Service violators of World War II, Korean and 

Vietnam wars, and the intervening periods; all persons convicted since 1933 of political crimes; all persons subject to 

prosecution for any of these crimes (unless covered by one 

of the pardons for honorably discharged veterans) are today 

unamnestied and effectively deprived of their rights as citizens 

—and the country is deprived of their potential leadership.

Amne sty and Pa rd on Disting ui sh ed

As has been shown, there has been considerable confusion 

among the laity between pardon and amnesty. But it does 

not appear to this writer that there is or should be any legal 

confusion.

In Burdick v. United States (19 14) the Court defined the 

concept of amnesty as compared to pardon:

The one (amnesty) overlooks offense; the other (pardon) remits

punishm ent. The first is usually addressed to crimes against the

sovereignty of the state, to political offenses, forgiven ess being

deemed more expedient for the public welfare than prosecution

and punishm ent. The second condones infraction s of the peace

of the state. “Am ne sty” is usually general, addressed to classes

or even com mun ities— a legislative act or under legislation, con ­

stitutional or statutory— the act of the supreme magistrate.

In U.S. v. Bassett in 1887, a case involving Congress 

authorizing the President, the Court ruled similarly.

State v. Blalock (18 67) is usually taken as the classic 

statement in state courts:

“Am ne sty ” and “pardon” are not precisely the same. Pardon is

granted to one who is certainly guilty, som etim es before, but

usually after, conviction. Courts take no notice of it unless

pleaded or claim ed by the person pardoned, and it is usually

granted by the crown or by the executive; but “am nesty ” is to

those who may be guilty, and is usually granted by the Parliament

or the Legislature, and to the whole classes before trial. “A m ­

nes ty” is the abolition or oblivion of the offense; “pardon" is its

forgiveness.

The Constitution (Article II, Section 2) vests the power 

to pardon in the office of the President. Moreover, English
675

history, from which we derive our theories of government, 

confirms that pardon is an executive function. The Supreme 

Court, in Ex parte Garland (186 6), stated that “this power 

is not subject to legislative control,” although some state 

legislatures continue to issue pardons.

But the generally accepted theory of pardon is that it assumes proven guilt and imposed punishment. Some have 

tried to establish that a “full and complete” or “general” 

pardo n is nearly the equivalent of amnesty but I find no 

modern supreme court acceptance of this view.

Amnesty, I believe, belongs only to the United States 

Congress, as the examples cited above will show. The Encyclopedia of Social Sciences agrees and the only law review 

article on the subject (Mississippi Law Journal 16:12 7 1944) 

coincides.

I hold also that although the original Constitution nowhere 

placed the amnesty power specifically, it follows the same 

general rule as in the British system, that is that it belongs 

to Parliament or the people (in America covered by Amendments IX and X of our Constitution). Congress would then 

exercise it in the name of the people. Amendment XIV, 

section 3, adopted after the president-congress conflict of the 

Civil War clearly assumes the power of amnesty as vested 

in Congress.

Other precedents (not cited here but see my fuller article 

in the Arizona Law and Social Order Journal, 1971) make 

it clear to me that while the President should grant pardons 

for all past offenses for which there has been a conviction, 

Congress should grant an amnesty for all political activity.

Since so many of our political offenders have been prosecuted under state laws of trespass, unlawful assembly, etc., 

can Congress or the President pardon or amnesty them? It is 

my opinion that insofar as a state conviction punishes one 

for acts against the federal government, e.g. destruction of 

draft files, the President and Congress have power.

W ha t O ffen se s are Am ne stia hl e?

What is “political” is a point on which we cannot expect 

to find much court law, for courts generally refuse to rule 

on political issues. Thus the very term “political crimes” is 

an anomaly, since courts do determine all criminal cases. 

Where the courts have spoken in general terms they define 

as “political” anything pertaining to governmental policy, or 

an action or belief held by groups who strive to gain control
676

of government, but rule out anarchy and revolution. The most 

recent case (Holden v. Finch, May 17, 1971) holds that 

citizen protest marches are political under the Hatch Act 

and civil service regulations.

These definitions become wholly inadequate when we look 

at the deportation and extradition statutes and cases, the 

only place in which the United States seems to define political 

“crimes” . The Refugee Relief Act of 1953 and the Displaced 

Persons Act of 1948 permit stay of deportation and acquisition of immigrant status if return to the country of former 

residence would cause political persecution or fear of persecution. This turns out to be persecution on account of race, 

religion, political beliefs or activity. Under the extradition 

statutes, treaties and cases, “political offenses” are not extraditable because United States legal process cannot be used 

by a foreign government as reprisal against its political opponents. In fact, in order to prevent extradition for murder 

or other violent crimes it is necessary for the person to prove 

that he was part of a revolutionary movement, political 

uprising or opposition. Giving orders to kill during a war 

(and presumably refusing orders to kill or participate in war 

acts) is a political crime, according to a Ninth Circuit Court 

decision in 1957. And treason would certainly be. There is 

indication in the cases that the requirement of army service, 

or the act of going to another country or claiming foreign 

citizenship to avoid such service, are viewed as political.

But it is the historical examples of the use of amnesty 

that would seem determinative. Amnesty has been used to 

erase treason, insurrection, attempted political overthrow, tax 

refusal, civil and racial strife, draft avoidance, army desertion, 

disloyalty and espionage, even bigamy, polygamy and murder, 

particularly when these arc caused by a political-racial-religious claim of necessity.

Every class of offense listed at the beginning of this 

article and claimed by the participants to be political would 

seem to come within one of these definitions and examples: 

the Berrigans, the San Francisco Stockade “mutiny”, the 

Catonsville Nine, Chicago Seven, Milwaukee Fourteen, New 

Jersey Eight, the AWOL’s and deserters, the draft evaders 

and avoiders, those arrested for trespass, riot, etc. in Washington, D. C. mobilizations and sit-ins, even Angela Davis 

and Panthers Seale and Newton. All these claim to have 

engaged in law violations (if any) to make the government 

change erroneous or illegal war, foreign policy, racial sup-
G77

pression, or citizen disenfranchisement practices.

It may be desirable to ask the question in another way: 

what criteria might be used to determine what are “ordinary 

crimes” (not to be amnestied) and “political crimes” (to be 

amnestied). The following is by no means a complete list 

but rather an indication of the important considerations:

1) Has the position for which the prisoner stood now become generally accepted in the community?

2) Has the government activity against which protest was 

made been ended?

3) Was the action taken originally as an expression of 

religion, conscience or other First Amendment right?

4) Were the conditions (prison, race, police brutality) 

such obvious failings of government that the citizenry ought 

to be encouraged to speak out?

5) Does the policy of the government against which protest was made (e.g. the war) represent a relatively small 

political group imposing its will upon the citizenry without 

a clear mandate, thus lacking democratic sanction and bound 

to elicit protest?

6) Was the original action non-violent and therefore nearest to protection as free speech?

7) Was the crime one generally condemned by all society 

as against the peace and good order of the people, with 

few if any political overtones?

8) Is the so-called political position that of anarchy?

9) Even if the original crime for which a person is in jail 

was non-political, has the matter of confinement turned into 

a political imprisonment or harassment?

10) Can society expect no serious threat if it releases the 

prisoner?

It would seem to this writer quite possible to formulate 

proper criteria, to set up a Board if necessary to sort out 

borderline cases; and the bugaboo argument of “would you 

release all criminals?” has little relevance.

W he re are Vi e No w?

We said earlier that never has the problem been so large 

or important in United States history. We now have the 

largest number of unamnestied and unpardoned political offenders—many of our finest young people and potential 

leaders. The offenses are backed up all the way to World 

War I and II. Nowhere else in the world are political offend-
crs treated as common criminals; even in Greece and some 

of the most dictatorial countries they are placed under house 

arrest or allowed to move to another country. In most they 

are amnestied and allowed to retry for political power (e.g. 

Big Minh in South Vietnam).

We need to begin immediately to erase this blot on American democracy. Even more we need to recruit these critics of 

society into the political process of changing society, which 

most everyone recognizes needs changing. One investigating 

committee of the Attica prison revolt now admits that 28 of 

the 30 prisoner demands should have been implemented. It 

may be small satisfaction to the Berrigans and other anti-war 

“criminals” but there is now general political agreement on 

the error of the Vietnam war. Rosa Park’s feet and the busted 

head of many a demonstrator may hurt no less, but desegregation is becoming a reality. The nation has a profound interest in allowing to reformists the most radical means of 

shaking us from our lethargy. THe more urgent the need for 

reform, the more radical must be the means of getting public 

attention and action.

Senator Edward Kennedy has introduced a bill in the 

present Congress as an alternative to further Selective Service 

extension which proposes an amnesty “study” for Congress. 

At least three presidential “candidates” have advocated amnesty. This is a start, but not enough. It would seem desirable 

for Congress and the President to appoint a Joint Committee 

to study the whole problem of pardon and amnesty going 

back to World War I, to recommend to the President and 

Congress what should be done so as to wipe out all the 

offenses and return all these citizens to where they are needed, 

in

One Nation Indivisible, with 

Liberty and Justice for all.

This is a shortened version of an article fu lly documented by histori 

cal citations, appearing in the Fall, 1971 volume of the Ariz ona 

State Un iversity La w and Social Order Jou rna l, Tempe. Arizona.
679

AMNESTY

why?

for w hom ?
680

The War Resisters League, foun ded in 1923, believes war to be 

the ultimate crime agains t humanity. We advocate nonvio lent 

resistance for creating a dem ocratic society free of war, racism 

and hum an explo itation. For us, nonviolence means action with ­

out hatre d, revolution without guns, justice witho ut prisons.

The League is deeply concerned with amnesty not only because 

thou sand s of our memb ers have been impri soned for their 

oppos ition to war. As one of the organizations advo cating resistance and non-c oope ratio n with the militar y, we feel a mora l 

responsibility for the men in exile and prison.

The League played a leading role in organizing the mass 

dem onstratio ns against the Vietnamese war as an affirmation 

of our conviction that the hum an choice is one world—all 3 ’/2 

billions of us—or none. Similarly, our comm itme nt to amnesty 

is not only out of conc ern for those whom it would affect, but 

also for the healing and recon ciliation it would bring to the 

American comm unity.

Many of you w ere par t of the active opposition to the Vietnam 

War. Will you join us in this campa ign for amn esty? Your 

actions helped silence the guns. Your actions now can help to 

open our borders for the exile, the prison doo r for the resister, 

and the American comm unity to a reconciliation which would 

encou rage the possibilities for a decent society.

The War Resisters League is affiliated with the

War Resisters’ Internationa l 

and the

Inte rnat iona l Con fede ratio n for Disa rmam ent and Peace

25M—June 1973
681

AMNEST Y - WHY ? FO R WHO M?

The Vietnam war was the longest in our history—and one 

of the most bitter we ever fought, leaving us as a people 

more deeply divided than any conflict since our own Civil 

War more than a century ago. 55,000 Americans died in 

Vietnam, hundreds of thousands were wounded—many 

crippled for life—and more than two hundred billion dollars 

spent. For the Vietnamese the cost was even greater: more 

than a million dead, wounded beyond count, several millions 

made refugees, hundreds of towns and cities destroyed.

The war was controversial but now we find that the 

peace is controversial also. For there was another cost of 

war: the men who resisted the draft, deserted from the military, went underground, or fled the country into exile. 

President Nixon has repeatedly referred to these men as being only “a few hundred” misfits and malcontents who 

refused to serve their country in time of war. The figures 

are actually far higher. One estimate was given in the New York Times, January 30, 1973:

10,000 draft resisters, military deserters—in civil or 

military prison, on probation, or awaiting 

court action.

80,000 draft resisters, military deserters—underground in the U.S.

60,000 to 100,000 draft resisters, military ueseriers 

in exile (largely in Canada).

388,000 Vietnam Veterans with less than honorable 

discharges.

This is a total of over a half million men actively involved 

in some form of resistance to the Vietnam war. The President has said these men will never be given an amnesty. Vice 

President Agnew has spoken about them with particular 

bitterness, implying they are traitors. Thus far every public 

opinion poll shows support for the President’s position.

Draft Evaders: Who Are They?

Only about 7% of the men eligible for the draft were ever 

called to active duty. During the ten years of war we were a 

nation of draft evaders. Parents kept their children in college 

and safe from the draft. People got into the National Guard, 

leaving them exempt from service in Vietnam. There were 

draft counseling centers in every city and on most campuses. 

We are not blaming these men. The War Resisters League 

did everything in its power to keep men out of service by 

any legal means at hand: job exemptions, medical problems, 

conscientious objection, etc. In a society where the rich 

have tax accountants to help them evade paying as much 

income tax as possible, one can hardly blame young men 

from seeking every legal means to avoid serving in a war 

which most Americans opposed.

The point is simply that these men did evade the draft. 

They didn’t burn draft cards or take part in peace demonstrations. They found legal ways of avoiding military service.

SI -6 58 0 - 7 4 - 4 5
682

Draft Resisters: Who Are They?

Starting in 1965 a growing number of young men came 

to feel very deeply that the war in Vietnam was wrong. 

Some of the men were deeply religious pacifists but many 

of the men had never thought much about war, never 

doubted they would serve their country when called—until 

they began to read reports of the war in Vietnam, how it 

started, the way our government was fighting it.

These men eventually formed “The Resistance,” a loose 

organization of several thousand men of draft age. Almost 

every one of these men could have gotten exemptions from 

the draft, as college students, on medical grounds, etc. But 

they came to believe it was wrong for them to be exempt 

while others—the poor who could not afford college—were 

being drafted. One by one—then by the hundreds and by the 

thousands, these men burned their draft cards, refused to 

register for the draft, refused induction when called. They 

could have lived out the war safely, but instead they made 

their resistance open and were jailed. They evaded nothing 

—they resisted publicly and paid a heavy price in prison 

terms. Their lives and careers were disrupted, in many cases 

marriages broken or family ties disturbed.

And Who Were the Deserters?

I know a young man who lived in New York City and was 

referred to me by a friend back in 1967. He was a deserter 

who had been living underground with false I.D. He asked 

my advice and 1 told him he could go to Canada, or spend 

his life as a fugitive, always listening for a knock on the door, 

or he could return and serve out his term in the army. I said 

it was a hard choice but we would do all we could to get him 

a lawyer and get him discharged as a pacifist if he returned 

to base. Six months later he came by my apartment. He 

had taken my advice and returned but he couldn’t take the 

conditions in the brig. Th e guards were ord ered to shoot to 

kill any man trying to escape and if they did kill a man they 

got a special leave as bonus. The conditions were too brutal 

—my friend took a risk and escaped. Where he is now 1 don’t 

know. He is one deserter, a quiet fellow who wanted to be 

an artist.

There was another young man I put up one night because 

he had emotional problems and couldn’t take the strain. He 

was a temporary AWOL. He just needed a place to stay 

one night to think things through. In the morning he went 

back to his base. The most interesting deserter I met was a 

clean cut kid who had served a tour of duty in Vietnam. He 

had gone over as a gung-ho conservative, had enlisted for the 

chance to kill Communists. When I met him in New York 

he didn’t ask for charity from anyone but got a carpentr y 

job, saved enough money for a ticket to Canada, and came 

by the night he was leaving for a final talk. I asked him why 

he had deserted. He said that when he went into the army 

he was a G oldwater conservative, but after he had done his 

tour of duty he knew we were wrong, that Americans had 

no business being in Vietnam, and he had no business being 

in the army carrying out orders.
683

He couldn’t get released as a pacifist, because there were 

wars he would fight in. He couldn’t face five or ten years 

at hard labor in a brig, so he was off for Canada and the 

building of a new life. I think he probably made it—1 certainly hope so. One of the surprising things we discovered 

in the peace movement was that the deserters were often 

men who had enlisted, had believed in the war, and deserted when they found out the facts. Some of these men 

whom Nixon has denounced were wounded in combat and 

have Purple Hearts. Some have medals for heroism in combat. But now they are underground in this country or in 

Canada or Sweden because they came to believe the war was 

wrong.

Who Are the Exiles?

Some of the men in exile are military deserters but most 

of them are draft resisters who, given a choice between a 

possible five year prison term for refusing induction, or 

military service in a war they deeply felt wrong, chose exile. 

Most of these men are in Canada. Many of them are becoming Canadian citizens and have no desire to return to the 

U.S. Many brought their wives with them, or married 

Canadians, finished schools, learned trades: they have made 

new lives for themselves.

Many others, however, want very much to return to this 

country. Their friends and families are here; they remember 

the fog in San Francisco or the sound of midnight subways in 

Manhattan. They remember the golden wheat in Kansas 

or the autumn forests of Maine. They want to come home. 

And here we have some paradoxes. There are men in Canada who are exiles but did serve in combat in Vietnam who 

would be arrested the moment they crossed the border. And 

yet, just across the border on the American side, are men 

who legally evaded the draft by staying in college and Nixon 

and Agnew say nothing about them.

There is another paradox about the exiles. With the 

exception of the American Indians, who were here when the 

rest of us arrived, and the blacks, who were brought here 

against their will, all of us came to this country as exiles. 

This land was built by exiles. The pilgrims landed at Plymouth Rock to practice their religion freely, without the 

constant arrests they had faced in England. Many French, 

Germans, Italians, Swedes, Poles, Russians, etc., fled to this 

country to escape the long periods of conscription imposed 

by the nations of Europe. (Several of my own German 

ancestors came for that reason.) Einstein came here because Germany had no room for Jews.

It is terribly painful for Americans to realize that perhaps 

a hundred thousand of our youth have left this country. We 

are hurt and. instead of asking what is wrong with us, we 

insist something is wrong with them. Isn’t it time to realize 

that the brutality of the Vietnam war drove some very fine 

young men—some of the bravest hearts and best minds of 

our generation-into exile? Some of these men will never 

want to return, but shouldn’t we open the borders of our 

nation to those who do?
684

Are You Saying All Kesislers, Deserters, Exiles Are Heroes?

Of course not. Some fled to Canada out of simple fear. 

Some deserters deserted out of fear (though it is interesting 

to note the Pentagon, in breaking down the reasons for 

desertion, says that only 5% deserted for fear of being 

killed). Life is complex, human motives hard to judge. If 

some of those in exile or underground are there from fear, 

so too were some of those who served in Vietnam afraid to 

say no. They served, some of them, because they were afraid 

of prison, afraid of what their families or friends would say 

if they refused induction. During the war I got letter after 

letter from men serving in Vietnam who sent us money and 

encouragement—and wrote saying they were sorry they had 

lacked the courage to say “no” when they were drafted. 

There is a little of the coward and a little of the hero in us all.

Why The Resistance?

This pamphlet deals with amnesty, not with the Vietnam 

War. Yet it is impossible to discuss amnesty without asking 

why these men resisted the American government. We are 

not, after all, talking about a general amnesty for muggers 

and rapists, or for business executives who swindle clients 

or politicians who got involved in Watergate. We are talking 

about people—most of them men, some of them women— 

who came into conflict with the law because of the war.

In every war there have been some Americans who, for 

religious or moral reasons, refused military service and went 

to prison. In World War II, when almost every able-bodied 

man was in the armed forces, some 15,000 men were jailed 

for opposing the war, another 15,000 did “alternative service.” That is 30,000 men. There were no exiles. But in this 

war nearly half a million Americans actively resisted the 

government, actively opposed the war. Only in this war did 

so many flee into exile. Only in this war did so high a percentage of men suffer less than honorable discharges for 

anti-war actions inside the armed forces. Why?

First, the resisters felt the war was unconstitutional because Congress never declared it. It was a war which grew 

slowly larger while the government kept the facts from the 

people-and even from the Congress itself. (In 1964, when 

Lyndon Johnson campaigned as a “peace candidate” against 

Barry Goldwater, he had already planned the massive escalation of the war that came one month after his inauguration, 

in February, 1965. When Richard Nixon, in 1968, said he 

had a “secret plan for peace,” he didn’t tell us he would in 

the next four years drop more bombs in Indochina than we 

had dropped in all of World War II.)

Second, the American intervention violated international 

law. The United Nations Charter, which is a binding treaty 

upon this country, obligates every nation to take any “threat 

to the peace” to the Security Council. We did not. The 

Geneva Accords of 1954, which ended the French role in 

Indochina, promised free elections in all of Vietnam, North 

and South, for 1956. We did not sign the Accords but made 

a strong public promise to abide by them. Yet even while
685

those Accords were being reached, we had already begun 

to sabotage them. It was American intervention which 

stopped the free elections in 1956 and left Vietnam divided, 

with South Vietnam under a military dictatorship.

Th ird, the war in Vietnam was a civ il war. A cruel and 

tragic one, just as our own Civil War. But there were never 

Russian or Chinese troops fighting in Vietnam. The only 

power which sent in troops from the outside was the United 

States and its allies (South Korea, Australia, the Ph ilippines, etc.) We went in without even an invitation—the U.S. 

State Department to this day cannot find any w ritten memo, 

letter, or request from the government of South Vietnam for 

our troops. What we did in Vietnam was the same thin g as 

if the English had sent a h alf million redcoats to the South 

in 1860 to back the Confederacy. Tha t would have been a 

direct foreign invasion, just as our sending troops to Vietnam 

was an invasion. As such it violated the Nuremburg decisions, which ruled that planning and carryin g out a war of 

aggression was an international crim e—and that anyone, 

fro m private to general, who obeyed orders to take part in an 

illegal war was com mitting a crime. Afte r World War II 

executed men who tried to argue they had only obeyed 

orders. Now, in Vietnam, some of our own youth said the 

orders were illegal and they would not obey them.

Finally there was the matter of how the war was waged. 

It was waged not only against Communist troops but against 

civilians. We poisoned wells, burned crops, set fires to the 

huts the peasants lived in, tortured and killed the prisoners. 

(In the infamous “ Phoenix program” set up by the U.S., A mbassador Colby adm itted more than 20,000 civilian s in South 

Vietnam were assassinated as suspected Communists— with ­

out any arrest or tria l. Others placed the number murdered 

at more than 40,000.) Our bombers were assigned “ free fire 

zones” where thev could kill anything that moved: children, 

water buffalo, troops. Even some of our weapons such as 

the infamous “ pellet bombs” could not damage military installations— they could only maim or ki ll people standing 

in the open.

To a great many Americans the war in Vietnam was an 

illeg itimate war. It was symbolized by My Lai. And these 

Americans felt they had a moral and civic duty to resist that 

war. We can understand the men who fought in the war 

because they believed that to be their duty— to serve w itho ut 

question. But we ask them to understand there is another 

kind of patriotism— to resist your own government when 

you feel it is in the wrong.

The Honorable Tradition of Resistance

Americans today are proud of our “ Underground Railroad" which slipped slaves North into Canada and freedom 

—yet at that time slavery was legal, and the Underground 

Railroad an illegal act of resistance fo r which men and 

women were jailed. When Communist intellectuals in Russia speak out against Soviet political repression, we respect 

them. But when our own poets and intellectuals here spoke 

against the terror of Vietnam they were too often called
686

traitors. In World War II Willy Brandt fled Germany into 

exile in Scandanavia—and Hitler’s government accused him 

of treason. Today Willy Brandt is the Chancellor of the 

German Federal Republic and has visited Washington D.C. 

as an honored guest.

Sometimes Nixon forgets that America was not built by 

conformists but by rebels. We are a nation born of revolution 

against unjust British rule. Should we, then, be surprised— 

or ashamed—to find American tradition strong enough that 

it moved so many of our youth to oppose their own government when they believed it to be wrong?

The Discharges

During the Vietnam War some 388,000 men were given 

“less than honorable” discharges. Some of these, of course, 

were for actual crimes against persons or property. But 

obviously the United States armed forces did not contain 

388,000 criminals. The figure is just too high—too far out 

of line. Many of those discharges—we believe most of them 

—were for opposing the war in Vietnam or for struggling 

against racism in the military. We had a draft army made up 

largely of the poor—poor whites, poor blacks, poor Puerto 

Ricans, poor Chicanos. These were men who had lacked 

the money to escape the draft and instead found themselves 

being shot at, and being asked to kill, peasants in a distant 

country. Resistance to the war within the armed forces became so serious that some companies refused orders to move 

into combat and some aircraft carriers had to be pulled back 

out of service. These men, less than honorably discharged 

for “lack of discipline,” now find themselves on the streets 

with little chance to get work. In some cases they are being 

driven to street crime or onto welfare rolls because they 

cannot get jobs.

War Crimes Trials Or Amnesty?

It has been argued by some that since so many Americans 

were killed or wounded in Vietnam, those who refused military service should “pay some price.” But who should really 

pay a price? The men who resisted an unjust war, or those 

political and military leaders who brought this war on us? 

It would be easy for bitterness. One of my younger friends 

who did serve in Vietnam came back a heroin addict. He did 

not resist but served in combat. One must ask why some men 

made war profits while others died. One must ask why Congress, which deserted its post during the war, should not 

pay some price. Congress, most of whose members could 

have cut off war funds, should have asked the hard questions; they could have ended the war and saved lives. But 

they conformed, let themselves be lied to by the President. 

One must ask why leaders that brought us into this war are 

free. Shouldn't they face a trial of some kind?

After all, the men who deserted, who refused induction— 

they did not send your sons or brothers to Vietnam. But war 

crimes trials will not bring the dead to life. Sending some 

political leaders to prison will not give back the years others 

have already lost in prison for their resistance.
687

Let us stop asking who was wrong and start asking what

went wrong. The nation has been hurt and divided by the 

war and amnesty does not mean forgiveness—it means forgetfulnes, a new beginning.

The Pain of Vietnam, The Power of Amnesty

What has made Vietnam so terribly painful is that it is 

the first war we lost. We are a proud people. We would like 

to blame someone or sopiething for what went wrong. Nixon 

says it was "peace with hono r," but it was—and we know 

it—defeat without honor. Most of Laos and Cambodi a are 

now under the control of Communist-,ed movements. Most 

of the territory of South Vietnam is now under the control 

of the Provisional Revolutionary Governm ent. Over a hundred thousand North Vietnamese troops remain in South 

Vietnam today—there were none when we intervened. No 

. . . after so much blood, so much agony, we were forced to 

withdraw leaving the “enemy” stro nger than when we began.

Some will say that if only we had all backed the President 

we would have won. It is easy to forget the massive attacks 

we made on Vietnam, the huge army we sent in, the endless 

bombing that went on. If we lost, it was not because our 

troops fought badly—they fought bravely and well. We 

lost because our military power could not save a corrupt 

regime hated by its own people. We forget that people all 

over the world are, in many ways, very much the same: if 

Americans would fight with ex traordi nary bravery to defend 

our country from the British, how can we expect the Vietnamese to be different?

Rather than looking for scapegoats to blame for losing, 

shouldn’t we ask if this was a war we even wanted to win? 

To have “won” we would have had to lose perhaps another 

hundred thousand Americans— and kill perhaps tw o. or 

three million more Vietnamese. To have “won” we might 

have had to level all of Vietnam. Could we have lived with 

such a “victory”?

It is time for healing America, not dividing it. Time for 

thoughtfulness about the future, not bitterness about the 

past. Those who resisted the war did not send others to die. 

Many o f us were arrested at induction centers trying to save 

your sons, husbands, brother s from this war.

What Price Did the Resisters Pay?

Those who fought in Vietnam often paid a heavy price 

—with their lives. Those who found legal ways of evading 

the draft paid no price at all. But what of the resisters, deserters. the men with less than honorable discharges? They 

have paid a price, with prison, with the pain of exile hundreds or thousands of miles from their homes, with the 

despair that comes from not finding work because the discharge is less than honorable.

What About an Amnesty Review Board?

Suggestions have been made that every case of desertion, 

resistance, etc., be reviewed “on its merits” by a special 

board. But why should those who had the courage to resist
688

now be presumed guilty until found innocent? If our men 

are to come before such boards, then why not Nixon, Rusk, 

Rostow, Westmoreland, and the others who bear guilt for 

the war? Those men drew up plans for the war. They knew 

of the inhuman way in which it was conducted. Either we 

have one aproach —unconditional amnesty—o r we have another set of rules in which war resisters and war makers 

must both appear before Amnesty Review Boards.

When Did We Have Amnesty Before?

There is a long history of amnesty. After World War II a 

million Germans and a million Japanese were given full 

amnesty by the allies. In the Civil War amnesty was granted 

and General Lee, who led the C onfederates States in armed 

rebellion, never went to jail. President Roosevelt amnestied 

those jailed in Warld War I and President T ruman pardoned 

10% of the men who had refused service in the second 

World War.

Conditional Amnesty

It has been suggested that those who refused to fight in the 

Vietnam war should be welcomed back into the American 

political community either by two years of constructive work 

(in slums, as hospital aides, etc. ) or by serving o ut the balance of their army term. First, these men do not feel guilty. 

They resisted from conscience, often at great personal 

sacrifice. Their lives have already been disrupted and if there 

is a “price to pay” they feel they have already paid it.

But if there are those who insist these men must pay some 

penalty, then let me raise this question: should not every 

man who legally avoided military service also pay such a 

penalty?

Finally one comes back to the central issue. What are 

the resisters and deserters and exiles really guilty of? They

are guilty of resisting a war most Americans finally came to

oppose. They are guilty of resisting a war they deeply believed to be wrong. They are, in short, guilty of an act of 

courage. When most Americans were silent, they spoke out. 

With their very bodies they made a protest and would not 

kill. They sent no one else to die. They did not lie to the 

public. They made no fortunes from “cost plus” war contracts.

Amnesty: The Real Question

The essential issue of amnesty—the basic moral issue— 

does not involve those who resisted an unjust war, but those 

who got us into it. Amnesty means not only letting the resisters come home, be released from jail, be granted honorable 

discharges. It also means forgetfulness about the personal 

guilt of those who got us into this war— so that we can focus, 

instead, on what went wrong with our society as a whole. 

We say, yes, there should be amnesty for all individuals but 

not for the system. Nothing can be gained by trying to punish 

individuals who were caught up in the war, but much can 

be gained by examining and changing the system itself.
689

Amnesty and the Paris Agreements

One of the odd things about Nixon’s bitter opposition to 

amnesty for American resisters is that it violates the Paris 

Agreements which ended the Vietnam war. Under those 

agreements the two Vietnamese sides are to release their 

political prisoners, allow full freedom of speech, press, etc.— 

regardless of which side they had supported in the war. Yet 

here in America Nixon is saying we ca nnot be as generous 

and reconciling as he asks the Vietnamese to be.

The Theory of Political Community

Some intellectuals, themselves critics of the Vietnam War, 

have raised the obligations people have to the “political 

community” in which they live. Under this theory, pacifists 

“fulfill” that obligation by refusing military service, but 

accepting the right of the State to imprison them. Such intellectuals note that Socrates refused to go into exile because, 

as a member of the Athens comunity, he realized it was better 

for him to die of hemlock within that community than to 

accept exile and break that tie.

The problem is th at a “political community” must assume 

a fair exchange of facts and information in order for the 

people to reach a fair majority decision. One can say that if 

the people have been given the facts fully and come to a decision, those who reject that decision, even to the point of 

breaking the law, have “broken the sense o f political community.” But it was the political leadership of this country 

which consistently “broke the sense of political community.” 

In 1964 and again in 1968 the people voted for Presidential 

candidates who promised peace—and instead we got more 

war. From the beginning of the war the Administrations 

withheld facts from us or deliberately lied to us.

Pacifists didn’t go to prison because they felt it was a 

“fair exchange” in return for their rejecting what the majority wanted. The majority never did want this war, never 

supported it, and pacifists went to prison because they had 

no other choice.

To apply this theory of “ political com munity” to the exile 

community is to apply it, for example, to veterans who 

served in Vietnam and had honored “the political community” until they could no longer stomach it. They had killed 

for it, often been wounded for it, and finally in desperation 

to avoid further guilt and killing they deserted. What more 

do these men owe the “political comunity?”

Or take the case of a man of 18 or 19, terrified of going to 

prison, deeply opposed to going into the army, who finally 

chooses exile in Canada. To which “political community” 

does he owe a d uty? His immediate family? His church? His 

town? Those communities are real, he has been a part of 

them. Most of the young men who fled to Canada had been 

responsible to those immediate communities. They weren’t 

drug addicts, high school drop outs o r ca r thieves. They had 

been loyal to their real communities of family and friends. 

But suddenly this wider and m ore distant “ political community,” headed by Kennedy or Johnson or Nixon, sent them 

draft notices. Mysterious dra ft notices that could send them
690

to fight an unknown people ten thousand miles away—a 

people about whom they knew almost nothing. And so these 

youth fled to Canada.

I am a little impatient with intellectuals whose own opposition to the war was moderate and legal—who let the 

slaughter in Vietnam go on with only an occasional verbal 

dissent, who now demand of an 18 year old man, often 

with little political background, the maturity to see in the 

regimes of Kennedy, Johnson and Nixon some “political 

community” to which they owed a prison term o f up to five 

years if they refused military service in an illegal war. A 

White House exposed by the Pentagon Papers and the Watergate Affair simply cannot lay claim to representing the moral 

and democratic consensus of the American people.

OTHER PROBLEMS

Veterans

Amnesty cannot be considered apart from other war-related questions, other problems with which we must deal if 

we are to heal and reconcile our nation. One of these is the 

treatment of American veterans, who are as much victims 

of the war as those in exile. Nixon, while making heroes of 

the 566 POW’s who were captured while bombing North 

Vietnam, has also been trying to balance the budget by 

cutting veterans benefits. The American veterans are men 

who lost two or more years out of their lives in a dangerous 

and demoralizing war. Those who found legal ways to avoid 

military service not only didn’t take those risks—they are 

“two years ahead” in their careers. Men who were drafted 

served at low pay, and must now begin again the building of 

their lives. They should have a full G.I. Bill of Rights with 

full medical coverage, a chance to attend college at government expense, and job training where needed. It is hardly 

enough for Nixon to “ask” employers to hire veterans. If 

necessary, the government should generate employment. 

Corporations made huge profits on defense contracts these 

past ten years—they should now be willing to pay out 

enough in taxes to ensure proper treatment for American 

veterans.

Civilian Prisoners in Saigon

At a conservative estimate Saigon holds 200,000 civilian

political prisoners, including men, women, and children.

Americans were deeply shocked when some of our returning 

POW’s told of their torture in North Vietnam. I do not 

doubt some of their stories are true, even though the POW’s 

admit the torture ended in 1969, or that it happened to only 

some of the 566 POW’s, or that the POW’s were volunteer 

military officers on well-paid bombing missions. None of 

this changes the sense of pain and dismay one feels at these 

reports. How much more terrible, then, to know that similar 

tortures—and some of them a great deal more horrible— 

are taking place now in the prisons of South Vietnam, prisons built and maintained by our tax money, and that such 

torture is happening not to a handful of military officers but 

to 200,000 civilian prisoners? We do not ask only for
691

amnesty here, but urge the government to withdraw all e conomic support from the Thieu dictatorship because it has 

violated the Paris Agreements by holding these men and 

women and subjecting them to torture.

War Orphans

The sense of healing must reach out beyond our boundaries to the damage the war has brought to Indochina. It is 

estimated there are tens of thousands of children in Vietnam 

today whose fathers were in the American military. These 

are what the French Occupation Army once called “the 

bastards of war.” They have no place or standing in Vietnamese society. Their fathers have returned home. In many 

cases their mothers have abandoned them. When the French 

left Indochina in 1954 they recognized their moral responsibility to the children their troops had fathered. They brought 

these children to France, gave them French citizenship, and 

made a place for them in French society. Can we do less 

now? Do we not have a duty to adopt these children as our 

own, as American citizens?

And if there are Vietnamese who feel their lives may be 

in danger because they had supported the American army in 

Vietnam, doesn’t it make more sense to open our doors to 

them than to talk about a possible “blood bath”—as Nixon 

does—but take no steps to avoid it?

An Appeal to Veterans of Vietnam

Those of you who served in Vietnam can speak most 

forcefully for amnesty. You, not Richard Nixon or Spiro 

Agnew, lived through the war. Some of your friends died in 

it. You may deeply disagree with the men who resisted—but 

I think you, and you alone, can disagree without bitterness, 

knowing better than the rest o f us some of the reasons why 

some men deserted and some didn’t. You know that some 

of your friends from school died in Vietnam; some went to 

prison for resisting the war; some went into exile; some deserted; some got less than honorable discharges. These men 

—all of them—were friends of yours.

God knows, this country has had enough of the war and 

the bitterness of the war. Your voice will be heard when 

others will not be heard. I ask you to help close this painful 

chapte r in our history by speaking out in your communities 

for the men of your own age who chose the path of resistance.

An Appeal to the American People

As this pamphlet makes clear, I think the Vietnam War 

to have been a violation of law, an exercise in illegitimate 

power. We are not, however, calling for the punishment of 

individuals but for a change of our system. We are asking 

that the nation recognize the harm we have done both here 

and in Indochina and reach out to heal that damage. We are 

asking that our political system be reformed so that no 

President can take us into war without the consent of the 

Congress and without fully informing the people.

One point where we can begin to change our nation is 

to see th at there was power and honor in the resistance. In
692

the decades to come we shall look back to this period and 

realize that the men and women who resisted helped shorten 

the war. They helped give us back a sense of our humanity 

by showing us how inhumane our Vietnam policy was. We 

should remember with pride the Catholic priests and nuns 

who were jailed; the military men serving time in brigs for 

resisting; those like Ellsberg and Russo who risked prison 

terms to get the Pentagon Papers to us; the thousands of 

young men whose names we shall never know who served 

terms in federal prisons for resisting this war. And those 

who, young and inexperienced, who may not have known 

how to stop the war, but at least had the integrity to say NO 

to a degrading situation.

Through this resistance they helped keep alive the American conscience. Because of these men and women the world 

realized America was more than a brutal giant raining death 

on peasants. They saw it also could struggle with itself and 

find its soul. Let no politican seek to make us proud of the 

evil we have done as a nation to the Indochinese. And let 

no politician seek to make us ashamed of the integrity of 

those of our youth who took the chances of dissent and exile. 

Amnesty is one step on American’s long way home.

Action for Amnesty

A variety of committees are working on amnesty now. 

You can find out what is happening by writing the WRL and 

sending $1 for the Amnesty Packet.

Beyond that, you can prepare to take part in local and 

national actions that will dramatize the problem. After 

World War II small groups, costumed in old-style, striped 

prison garb, picketed the White House to appeal for release 

of those still held in prison after the war’s end. This time 

there will be dozens, hundreds, thousands of us to stand 

beside the men we want to bring back into American society, 

whether they resisted in prison, in exile, or by desertion.

But these actions will follow education. Education in 

churches, in students groups, in veterans and trade union 

organizations. Hopefully this pamphlet will be helpful to 

you in that work.

D av id M c Rey no lds

WRL Staff

June 1973

In addition to this pamph let the War Resisters League carries the

follo wing materials:

Amnesty Packet. An effective collection of materials, resolutions 

by v arious organizations, lists of books, audio-visual aids, action 

suggestions. $1

WRL Amnesty Statement. $1/100; single copies free.

The New Exiles, by Roger Neville Williams. An account of 

Americans who have become contemporary political refugees 

in C anada. 401 pp. $2.95

They Love It But Leave It. by Devi Prasad. Covers all majo r 

aspects of desertion by U.S. servicemen and their situation in the 

countries where they have taken refuge. 80 pp. $1

When Can I Come Home? by Murray Polner. A debate on amnesty for exiles and all other war prisoners. 267 pp. $1.95
693

For additional information and help, contact:

National Com mittee for Universal and Uncondition al Amnesty

339 Lafayette Street, New York 10012

This is a broad coalition which includes some of the following:

American Friends Service Committee (Quakers)

160 North 15th Street, Philadelphia PA 19102

Amex-Canada

PO Box 187, Station D, Toronto , Ontario, Canad a

Amnesty Project, ACLU Found ation

22 East 40th Street, New York 10016

Clergy and Laity Concerned

235 East 49th Street, New York 10017

CCCO-Repatriation Project

2016 Walnut Street, Philadelphia PA 19103

Emergency Ministries Concerning the War

475 Riverside Drive, Room 767, New York 10027

National Interreligious Service Bd. for Conscientious Objectors

15th and New York Avenue, N.W., Washington DC 20005

Peacem akers

10208 Sylvan Avenue, Cincinnati OH 45241 

Women Strike for Peace

1363 Pine Court, East Meadow NY 11554

■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
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W A R R E S IS T E R S L E A G U E

339 Lafayette Street, New York 10012

Regional Offices

WRL-West 833 Haight Street, San Francisco CA 94117 

WRL-Southwest 116B Hermosa S.E., Albuquerque NM 87108 

Atlanta Workshop in Nonviolence Box 7477, Atlanta GA 30309 

Plains States WRL, 306 West 39 Street, Kansas City MO 64111

Local WRL Groups

Santa Rosa WRL Box 1379, Rohnert Park CA 94928 

Sacramento WRL 4840 Willowbrook Dr., Sacramento CA 49017

Washington DC WRL

Box 231, American University, Washington DC 20016

Catholic Action/Honolulu WRL

1212 University Avenue, Honolulu HA 96814

Ames WRL

c/o Kitzman, Meadow Glen Road, Rt. 4, Ames IA 50010

Oakland WRL Oakland University, Rochester Ml 48063 

Detroit WRL 692 North Forrest, Detroit MI 48201 

Lansing WRL Box 264, Lansing MI 48902 

Kellogg Community College WRL

450 North Avenue, Battle Creek MI 49017 

Grand Rapids WRL Box 1114, Grand Rapids MI 49501

Jersey Shore WRL

364 Westwood Avenue, Apt. 80, Long Branch NJ 07740

Grope/WRL 244-F, R.D. 1, Kerkonkson NY 12466 

Jamestown WRL 12 Partridge Street, Jamestown NY 14701 

Broome County WRL Box 1351, Binghampton NY 13902 

Ithaca WRL c/o Snyder, 66 Hilltop Road, Danby NY 14850

Columbus WRL 1954 Indianola Avenue. Columbus OH 43201 

Dayton WRL 122 Blackberry Road, Dayton OH 45431

Oklahoma W RL Box H, Norman OK 73069

Ft. Worth WRI. Box 11073, Ft. Worth TX 76109 

Denton WRL, Box 13765, Denton TX 76203 

Direct Action/ Austin WRL

Box 7161, University Station, Austin TX 78712

Seattle WRL 2713 NE 94 Street, Seattle WN 98115
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Amnest y I n fo rm atio n S er v ic e, N a tio n a l I n t e r r e l ig io u s Se r v ic e B oa rd

fo r C o n sc ie n tio u s Ob je c to r s

QU ESTIO NS AND AN SW ER S ON AMNESTY

What is amnesty/

The word “am nesty” is derived from a Greek word th at means not remembering, 

or an intentional overlooking. It is th e sam e root word as t ha t for “am nesia” .

Amnesty is a discretionary act by a sovereign to decide th at a class of offenders 

will be ignored. Amnesties usually apply to political offenders or alleged political 

offenders after the situation that provoked their acts has changed. The purpose 

of an a mnesty is to make possible th e larger goals of a society as it looks forward 

to a future without recriminations.

It should be made clear th at amnesty does not mean forgiveness. War resisters 

feel t ha t they did not do wrong, th at their conscientious actions in opposing the 

war in Indochina, while illegal, were not immoral and do no t need forgiveness.

What is the difference between amnesty and pardon/

A pardon generally applies to a single offender who has alrea dy been judged 

guilty. It implies forgiveness rather tha n forgetting. Along with clemency, the 

act of pardon presupposes th at no further purpose would be served by continuing 

punishment already started or completed.

Amnesty does not consider guilt or innocence, but on behalf of society, the 

government clears the record for an entire group of people. It is in the eyes of th e 

law as if the alleged offense had never happened.

Who has the authority to grant an amnesty/

The Constitution gives the Executive the “power to g ran t reprieves a nd pardons 

for offenses against the United States. . . ” I t has been held by the Supreme Court 

that this power also includes amnesties. (U.S. v. Klein 1872).

In the history of the United States, amnesties have been gran ted by the President alone, by the President with the authorization of Congress, and by Congress 

alone.

What does amnesty mean in terms of legal and political rights/

Amnesty normally involves the total restoration of all legal and political righ ts 

and the clearing of any criminal record that the individual migh t have for the 

acts amnestied. These who have been convicted would have th eir records expunged, 

those in prison would be released, those who face possible prosecution would be 

immune from th at prosecution. Persons now unable to re turn to the U nite d Sta tes 

could then return, those who can not vote, hold public office, or even obtain professional licenses in most states, would have restoration of the ir civil and political 

rights.

Who would benefit from amnesty/

The proposal that NISBCO has associated itself with was outlined by the inte rreligious Conference on Amnesty, held in March, 1972. Th at statem ent called 

for amnesty for all persons in this country or in exile who have suffered or who face 

criminal or administrative penalties for opposing the war in Indochina, including: 

dra ft violators, deserters, veterans with other tha n honorable discharges, and those 

persons convicted of or prosecuted for civilian acts against the war.

Lesser amnesties have been proposed: some would include only draft violators, 

and others would require a period of altern ate service as a condition for amnesty, 

How many people would a universal, unconditional amnesty affect/

NISBCO’s estimate, based on government figures, is th at at lea st 400,000 people 

suffer some legal disability because of the war. An additional, unknown num ber 

live “underground” in either the United States or Canada. These people may 

or may not have actually been indicted for an offense, bu t assume th at the y will 

be prosecuted if they live openly in the United States.

A sizeable portion of America’s young generation would be affected by amn esty— 

a portion of American society th at has much to offer to the rest of the society if 

given the opportunity.

Wouldn’t such a large amnesty be unprecedented/

After the War Between the States, the entire Confederacy was eve ntually 

amnestied. With the exception of that war, no other conflict in our history has 

been as divisive or produced as many acts of protest as the Indo chin a War. No war 

has lasted so long. After the relatively sho rt involvement in World War I, little
696

effort was made to prosecute the estimate d 300,000 draft violators at large, a much 

larger group in proportion to the total force t han at present. The unprecedented 

circumstances surrounding this war justify an unprecedented ly large and generous 

amnesty.

Is there any historical precedent for amnesty in the United States?

According to testim ony before a Congressional subcommittee last year, there 

have been thirty-seven instances of amnesty in the histo ry of the United States.

The first was in 1795 when President George Washington granted amnesty to 

the Whiskey Insurrectionists, and the late st being President Tru man’s Amnesty 

Board following World War II (although that Board granted only pardons, and 

only to a small p ercentage of the men affected).

The most sweeping amn esty in our history came in 1868, when President Andrew 

Johnson granted an unconditional amne sty to all rebels of the Confederate States, 

except for certain political and military leaders.

Do all war resisters want amnesty?

There are many war resisters who are very emphatic abo ut their political, 

moral and human right to an amnesty for their single offense of refusing to participate in the Indochina War.

Considering those in exile, what is a t ultim ately at stake in amnesty is not the 

inten t of these people to return to the United States, what is at stake is their 

right to retu rn. If some choose to live elsewhere, it in no way diminishes the need 

for America to enac t a broad and general amnesty. Certainly, many would take 

advanta ge of an opportu nity to visit their families, especially at times of sickness 

or death.

Shouldn't there be a distinction between draft violators and deserters?

The essential difference between a person who evaded the draft and one who 

left the military after being inducted is one of tim ing. Many young men did not 

realize the full impact and meaning of war until they were in the Army—often in 

Vietnam or at the point of being sent there. This first hand observation then 

brought them to conscientiously refuse to participate further, and often to desert.

The Supreme Court recognized in its Welsh decision (1970) th at at the time of 

registration with Selective Service, a person may not have convictions against 

war, bu t th at these views can develop in late r years.

It m ust also be taken into account t ha t many deserters are from poorer families, 

from minority groups—who did not have the educational opportunities and 

lacked the middle-class techniques for getting around the dra ft (e.g. draf t counseling, letters from a doctor or psyc hiatrist, college deferments, etc.) To refuse them 

amnesty would only compound th e injustices th at th e racism and inequities of the 

Selected Service System have alread y created.

Why didn’t these men seek conscientious objector status?

Many men who would now benefit from amnesty did seek conscientious o bjector 

sta tus and were denied their claims. Through most of the war, local dra ft boards 

rejected claims without giving reasons. In most court cases, therefore, it was not 

possible to defend the case on the merits of the claim, only on whether or not the 

draftee did or did not s ubm it to induction.

Many others decided against applying, either because they though t it hopeless, 

or because they would not subm it to the harassments of the dra ft or military 

system. Many were opposed to the war in Indochina, but supposed tha t they would 

serve in a legally declared conflict which conformed to inte rnational law and to 

the teachings of their church about th e limits of war. Absolutely no provisions has 

been made in the United States for these “selective objectors”. Others were op ­

posed to any cooperation with conscription because of their religious scruples or 

conservative libertarian principles. These men and women frequently were 

imprisoned.

The poor and uneducated did not have the knowledge of the provisions about 

CO statu s (it was no t until 1971 that Selective Service began publishing information abo ut this legal right), nor did they have access to assistance in obtaining 

these rights. Much false inform ation was in circulation abo ut requirements for 

CO sta tus. Others refused to accept CO status for themselves to protest the system th at made it un atta inable for so m any deserving peple.

Shouldn’t amnesty at least include a requirement for some type of alternate service?

Imposing conditions for amnesty implies guilt on the pa rt of those who are 

amnestied and limits the point of an amnesty. To require service as retribution
697

is a perversion of both the meaning of service and the purpose of amn esty. Ma ny 

persons have already suffered the pains of prison and the loneliness and difficulties 

of living underground or in exile. No further punish ment would be useful. Ma ny 

war resisters would not accept a conditional amnesty because of this pun itive 

nature. Th ey feel that in obeying a higher moral law the y did nothing that deserves punishment.

Secon dly, forced service for allegedly constructive social programs is neither 

constru ctive for the person concerned nor likely to be beneficial to the recipient 

of the service. Ma ny conscientious objec tors have chosen jail rather than accepting the sorts of service opportunities to which the y were ordered.

Conditio nal amn esty also implies th at the war resisters enjoyed an unfair 

personal advan tag e which must be compensated for. These people, however, ha ve 

alread y suffered the hardships of prison or exile, hardships that could hardly be 

construed as an adv antag e requiring several years of their lives in some “ service ” .

Wouldn't giving amnesty to those who refused to serve their country be an insult to

those who have served?

According to a natio nal poll taken in May of 1972, 73 % of Americans fav ore d 

with drawal from Vietnam , yet the war went on. In such a situa tion, what really 

is service to the coun try?

A returned Vietnam vete ran said in a letter to a Rich mon d, Virginia newspape r: “ It is not the deserters and dra ft dodgers who shirked their resp onsibil ity, 

but those of us who failed to question what we were doing.”

Ma ny felt that their conscience required them to answer the call of the go ve rn ­

ment to serve in the military. Other men saw refusal to par ticipate in the milit ary 

as true ser vice to th eir country. All hav e suffered the consequences of their actio ns. 

Am nesty would n ot be an insult because it makes no moral judg eme nt. It is sim ply 

anoth er wa y the gove rnm ent can “ bind up the wounds” created by the Indoch ina 

War.

Didn't each man who evaded the draft cause another man to be inducted in his placet

The Sele ctive Service System has never been fair. There are millions of men 

who evaded mil itary service by way of student, occupational, parenta l or physi cal 

deferments. It would not be practical or desireable to prose cute onl y those who 

evaded the dra ft by “ legal” means, neith er is it just to prosecute only those who 

in many cases did not have the opp ortunity for a “ legal” escape and had to 

choose an “illegal” one. The men whose beliefs led them to refuse to serve in the 

mil itar y had no more to do with anoth er person ’s being drafted than did the men 

who sta yed in college to avo id serving.

What do you say to the families of those who suffered and died in the wart

For those families, as for all of us, it was a terrible tra gedy that men suffered 

and died in the war; the y hav e our t otal sympathy and compassion. Bu t to punish 

those who refused to fight will not brin g bac k their sons whole, nor restore them 

to life. Losing one’s son does not ju sti fy den ying the return of other sons. Wh y 

some were killed or injur ed is a question that should not be addressed to those who 

objecte d to the war or to those who advocat e amnesty. Th at question is properly 

addressed to the gove rnm ent of the United States, which has for a decade been 

unab le to give a satisfa cto ry answer.

All of Americ a’s youth were victim s of a gove rnm ent policy — a policy over 

which the y had no control. Some were killed , some wounded, some imprisoned 

and some exiled — bu t all were victims and none should be punished for their 

victimization.

Wouldn’t amnesty injure military discipline and make it difficult to recruit an army

in the future?

Ther e is no serious danger— after prev ious amnesties there has been no diminished ab ility for the milita ry to recruit or to main tain discipline. At the present 

time, the achievemen t of an all-v olun teer arm y seems li kely and talk of an amnes ty 

has no effect on it. An amnes ty at this time might even enhance rec ruit ment 

possibilities were potential enlistees to be assured that henc eforth wars would not 

be entered into withou t a clear declaration by Congress, and a consensus of the 

people tha t the conflict is necessary.

What about respect for the law? Wouldn't amnesty encourage anarchy?

Am nes ty itself is a lawful concept, and serve s the law by restoring pub lic 

confidence in the justice of law. Amnesty is for a specific group of peop le in a 

31-658 0 — 74------46
698

specific situation—th at of a war now said to be over. There is no evidence in 

history that an amnesty for those affected by a specific experience will have any 

other long-range effect.

Is there a time limit for amnesty f

There is no time limit to amnesties. President McKinley declared the last of 

the amnesties for the Confederacy, and President Franklin Roosevelt completed 

the amnesties for World War I. The longer an amnesty is delayed, however, the 

less relevant it will be.

N a tio na l I n t e r r e l ig io u s Se r v ic e B oa rd fo r C o n s c ie n tio u s Ob je c to r s— 

A m nest y I n fo rm atio n S er v ic e

A LIST OF AMNESTIES IN AMERICAN HISTORY, 1795 TO DATE

In this table amnesty is broadly defined to perm it inclusion of several actions 

by the Executive that should properly be considered “ pard ons” as well as legislati ve actions b y Congress.

The amnesties in American history, including date, issued by, persons affected 

and n atu re of action:

Jul y 10, 1795, Washington, Whiskey insurrectionists (several hundred). General pardon to all who agreed to thereafter obey the law.

May 21, 1800, Adams, Pennsylvania insurrectionists. Prosecution of participants ended. Pardon not extended in those indicted or convicted.

October 15, 1807, Jefferson, Deserters given full pardon if they surrendered 

within 4 months.

February 7, 1812, October 8, 1812, July 14, 1814, Madison, Deserters—3 proclamations. Given full pardon if they surrendered within 4 months.

February 6, 1815, Madison, Pirates who fought in War of 1812 pardoned of 

all previous acts of piracy for which any suits, indictments or prosecutions were 

initiated.

June 12, 1830, Jack son (War Departm ent), Deserters, with provisions: (1) those 

in confinement retu rned to duty; (2) those at large under sentence of d eath discharged, never again to be enlisted.

Feb rua ry 14, 1862, Lincoln (War Dep artm ent), Political prisoners paroled.

July 17, 1862 (Confiscation Act) Congress, President authorized to extend pa rdon an d amnesty to rebels.

March 10, 1863, Lincoln, Deserters restored to regiments without punishm ent, 

except forfeiture of pay during absence.

December 8, 1863, Lincoln, Full pardon to all implicated in or participating 

in the “ existing rebellion” with exceptions and su bjec t to oath.

Feb ruary 26, 1864, Lincoln (War Dep artm ent), Deserters’ sentences m itigated, 

some restored to duty.

Marc h 26, 1864, Lincoln, Certain rebels (clarification of Dec. 8, 1863, 

proclam ation).

Marc h 3, 1865, Congress, Desertion punished by forfeiture of citizenship, Presiden t to pardon all who return within 60 days.

Marc h 11, 1865, Lincoln, Deserters who retu rned to post in 60 days as required 

by Congress.

May 29, 1865, Johnson, Certain rebels of C onfederate States (qualified).

July 3, 1866, Johnson (War Dep artm ent), Deserters return ed to duty without 

punishm ent except forfeiture of pay.

Jan uary 21, 1867, Congress, Section 13 of Confiscation Act (authority of President to grant pardon and amnesty) repealed.

September 7, 1867, Johnson, Rebels—additional amnesty including all bu t 

certain officers of the Confederacy on condition of an oath.

July 4, 1868, Johnson, Full pardon to all partici pan ts in “ the late rebellion” 

except those indicted for treason or felony.

December 25, 1868, Johnson, All rebels of Confederate States (universal and 

unconditional).

May 23, 1872, Congress, General amnesty law reenfranchised many thousands 

of former rebels.

May 24, 1884, Congress, Lifted restrictions on former rebels to allow ju ry duty 

and civil office.

Jan uar y 4, 1893, Harrison, Mormons—liability for polygamy amnestied.

September 25, 1894, Cleveland, Mormons—in accord with above.
699

March 1896, Congress, Lifted restrictions on former rebels to allow appointmen t 

to military commissions.

June 8, 1898, Congress, Universal Amnesty Act removed all disabilities against 

all former rebels.

July 4, 1902, T. Roosevelt, Philippine insurrectionists. Full pardon and amnesty 

to all who took an oath recognizing “ the supreme author ity of the United States 

of America in the Philippine Islands.”

June 14, 1917, Wilson, 5,000 persons under suspended sentence because of 

change in law (not war related).

August 21, 1917, Wilson, Clarification of June 14, 1917 proclamation.

March 5, 1924, Coolidge, More t han 100 deserters—as to loss of citizenship for 

those deserting since World War I armistice.

December 23, 1933, F. Roosevelt, 1,500 convicted of having violated espionage 

or d raft laws (World War I) who have completed their sentences.

December 24, 1945, Trum an, Several thou sand ex-convicts who had served in 

World War II for a t least 1 year.

December 23, 1947, Truman, 1,523 Individual pardons for dra ft evasion in 

World War II, based on recommendations of President’s Amnesty Board.

December 24, 1952, T ruman, Ex-convicts who served in Armed Forces not less 

tha n 1 year after June 25, 1950.

December 24, 1952, Truman, All persons convicted for having deserted between 

Aug. 18, 1945, and June 25, 1950.

Sources: John C. Etridge, Foreign Affairs Analyst, Foreign Affairs Division, 

Library of Congress.

WA SHING TO N RE PO RT ON AMNESTY

At his press conference on Jan uary 30th, President Nixon made perfectly 

clear his personal views on amnesty for dra ft violators and military deserters. 

“Now, amn esty means forgiveness. We cann ot provide forgiveness for them. 

Those who served paid their price. Those who deserted must pay their price, 

and the price is not a junket in the Peace Corps, or something like that, as some 

have suggested. The price is a criminal penalty for disobeying the laws of the 

United State s. If they want to retu rn to the United States they mu st pay the 

penalty. If they don’t want to return, they are certainly welcome to stay in any 

country th at welcomes them.”

The harsh words of the President were so offensive to many of his own supporters, th at within a week White House spokesmen were trying to soften his 

statement. Charles Colson, counsel to the President, said in a lecture to stud ents 

at Brown University , th at the President wanted to follow the precedent of 

Lincoln, Andrew Johnson and other Presidents during postw ar periods. “Those 

who deserted either served in prison or did some form of alternate service on the 

basis of individual judgements of those who decided to come back. Mitigating 

circumstances based upon certain hardship cases will be a facto r in making those 

kinds of judg eme nts.”

Shortly following Colson’s rema rks were hints of a change in the President’s 

views on the treatm ent of dra ft violators. Senate Republican Leader Hugh 

Scott said, “I ’d be willing to consider letting them give some kind of equivalent 

service after passions have cooled off for a while.” Attorney General Richard 

Kleindienst in a speech in Washington mentioned the possibility of a “lesser 

pen alty ” for draft violators tha n the one advo cated by President Nixon in his 

news conference.

Legislative Proposals

Several bills have been proposed in Congress dealing with amnesty for war 

objectors. While the Senate is currently dealing with other important matter s, 

members of the House of Representatives have introduced several bills with 

different objectives on the tre atm ent of d raft violators and military deserters.

Perhaps the most imp ortant of these proposals are the bills intro duce d by 

Rep. Abzug (H.R . 236) and Rep. Dellums (H.R. 3100). The identical bills 

would enac t the "War Resisters Exoneration Act of 1973”. In brief, the Act 

would restore all civil, political, property and other rights to all persons who have 

been prosecuted, or who may be prosecuted for failing to comply with any requirement of, or relating to, service in the armed forces during the U.S. involvement 

in Indochina, or for engaging in any nonviolent activity, or activity justified by 

deeply held moral or ethical belief in protest of, or opposition to the Indo china 

war.
700

The general and unconditional amnesty this Act proposes would also immunize 

resisters from criminal prosecution for such violations, would expunge all notation 

from the records of courts and law enforcement agencies, would require the 

gran ting of honorable discharges to veterans who received less than honorable 

discharges because the discharge was based solely on the serviceman’s objection 

to the war, and would nullify all other legal consequences of such violations.

A special Amnesty Commission would be set up to investigate cases where 

individuals who think they should be granted general unconditional amnesty 

are being denied it. The Commission would have the author ity to grant general 

unconditional amne sty to such individuals. The Commission would expire at the 

end of four years.

Rep. Roybal has introduced a bill in which he calls for enactment of “The 

Amnesty Act of 1973” (H.R. 2167). This Act would encourage the President to 

“pardon” all Selective Service violators if they agreed to perform two years of 

militar y or civilian service in return . Excluded from this “pa rdon” would be 

persons who have obtained nationality or perman ent residence sta tus in another 

country. Persons in prison, or released from prison would also qualify for this 

“pardon” by completing at least one year of th e service requirement.

Rep. Koch has introduced three bills, the first of whicn (H.R. 675) is very 

similar to Roybal’s. His second bill (H.R . 674) is merely a n approval and autho rization for the President to amnesty or pardon “nonviolent military offenders” or 

persons who have violated Federal or State laws during t he Vietnam War solely, 

or partly because of their disapproval of the U.S. involvement in the war.

Koch’s third bill is the most interesting of them all (H.R. 2034). He proposes to 

amend the dra ft law in order to allow violators of the Selective Service law and 

violators of m ilitary law the opportu nity to make claims of conscientious objection against a par ticu lar war (intending the Indo china War) so as to avoid 

prosecution, suspend prosecution, or to be released from prison while th eir claims 

for “selective conscientious objector” status are pending. Being granted such 

sta tus would therefore exempt those persons from the ir military obligations 

retro actively . Koch’s proposal avoids mentioning amnesty or pardon and makes 

no mention of persons who have served their time for violations of the military 

or Selective Service laws for the same “selective conscientious objection.” All 

such claims would be handled by the existing local boards of the Selective Service 

System or the existing appeals stru cture currently being used for C.O. claims 

with in the military services.

B ib lic a l M a ter ia ls a t h e C a se f o r Am nest y

Prepared by Charles P. Lutz, Military-D raft Specialist, Lutheran Council in the 

USA, for the Interreligious Task Force on Amnesty 

1. ON TH E A RGU M EN T TH A T T H E G O V ER N M EN T’S JU D G M E N T M UST B E FO LLO W ED

Lev. 25:55—In the final analysis, God’s children are responsible to him, not to 

any earthly sovereign. This verse is a summary statem ent concluding the discussion of the Jubilee Year, “For it is to me th at the children of Israel are servants. 

They are my servants . . .”

Acts 5:29—Peter and the apostles, after being imprisoned for defying particular 

auth orities, said, “We must obey God rather tha n men.” The conflict for Christian s between this passage and Rom. 13:1 (“Be obedient to the governing au tho rities”) has always been present. A third word to be considered is . . .

Rev. 13—describing the empire as a blasphemous beast: implicitly a warning 

against m aking the sta te into an absolute—Is the king God or is God the king? 

2. ON T H E A R G U M EN T TH A T LA W M UST AL WAY S EX A CT IT S PEN A LTY

Lev. 25—Description of the Jubilee Year (every 50th), in which slaves and 

captives were to be released. “ You shall . . . proclaim liberation in the land for 

all its inhabitants (25:10 NEB). While the Jubilee was pa rt of the legal system, 

it also carries the idea of a suspension of the normal law system for the sake of a 

large r good.

Mt. 12:10-12 (also Lk. 6:6-11)—again, suspension of the normal system of law 

is justified: It is good to heal on the Sabbath, even thould th at obviously violates 

the ban on Sabbath work, because the choice is whether “to save life or to destro y 

it ” (Lk. 6:9).
701

3. SU PPO R T FO R AM NES TY AS AN E L E M E N T IN R EC O N C IL IA TIO N

Ley. 19:17-18— “ You shall not hate your brother in your heart, bu t you shall 

reason with your neighbor, lest you bear sin because of him. You shall not tak e 

vengeance or bear any grudge against the sons of your own people, bu t you shall 

love your neighbor as yourself: I am the Lord” (RSV).

Eph. 8:14-18—Christ is our peace. Through his death on a cross, he has 

broken down the enmity between those estranged (Gentiles and Jews). (Beware 

the tem ptation to press into service the “aliens in a foreign land” of v. 19, NEB.)

8 Cor. 5:18-19— “From first to last this has been the work of God. He has 

reconciled us men to himself through Christ, and he has enlisted us in this 

service of reconciliation. What I mean is, t ha t God was in Christ reconciling the 

world to himself, no longer holding m en’s misdeeds against them, and tha t he has 

entrusted us with the message of reconciliation” (NEB). See also Rom. 5:10-11 

and Col. 1:19-20.

To be avoided: the Prodigal Son parable (unless you wish to press the moral 

guilt/repentance/forgiveness theme).

The late Rabbi Abraham Heschel cited these additional materials from the 

Jewish trad itio n in his March 1972 presentation at the Interreligious Conference 

on Amnesty:

“Any man who ignores the command of a sovereign because he is concerned 

with (or engaged in) fulfilling God’s command, even a slight one, is not liable 

(to punishment) because (when there is a conflict) between the edict of the 

Master and the edict of th e servan t (the sovereign), the former takes precedence 

over the latter. It goes w ithout saying that if the king issues an order annulling 

a religious precept, no heed is paid to it. ” (Laws Concerning Kings and Wars,

III.9)

“A man came to Rabba and said to him: ‘The governor of my town has 

ordered me: “ Go and kill so and so; if not, I will slay you .” (What shall I do?).’ 

Rabba answered him: ‘Let him rat her slay you tha n th at you shall commit 

murder; who knows th at your blood is redder? You have no right to murder him 

to save yourself: his life is not less valuable tha n your own. How could you say 

th at your life is dearer to God tha n his? Maybe his life is dearer?’ ” (Rashi,

Pesahim 85 A— see Sanhedrin 74A)

N a tio na l I n t e r r e l ig io u s S er v ic e B oa rd fo r C o n sc ie n t io u s O b je c to r s— 

Am nest y I n fo r m a tio n Ser v ic e

R ESO U R C ES FO R AM NES TY ED U CATIO N

Books

American Deserters in Sweden: The Men and Their Challenge, Thomas Lee 

Hayes (Association Press, New York, 1971).

The Amnesty of John David Herndon, James Reston, Jr. (McGraw-Hill, New 

York, 1973).

Amnesty? The Unsettled Question of Vietnam, Mark Hatfield, Arlie Schardt, 

William A. Rusher (Sun River Press, Two Continent Publishing Group; 

Lawrence, Massachusetts; 1973).

Home From the War, Vietnam Veterans Neither Victims Nor Executioners, 

Rob ert Jay Lifton (Simon and Schuster, New York, 1973).

I Would Like to Dodge the Draft-Dodgers But . . ., F rank H. Epp, ed. (Conrad 

Press, Waterloo and Winnipeg, 1970).

In the Service of Their Country: War Resisters in Prison, Willard Gaylin, MD 

(Grosset and Dunlop, New York, 1970).

The New Exiles: American War Resisters in Canada, Roger Nedville Williams 

(Liveright, New York, 1971).

The New Refugees: American Voices in Canada, Jim Christy, ed. (Peter Martin 

Associates, Toronto, 1972).

Selective Service and Amnesty, Senate S ubcom mittee on Administrative Practice 

and Procedure, Edward M. Kennedy, Chairman (Government Printing Office, 

Washington, 1972).

They Can’t Go Home Again: The Story of America’s Political Refugees, 

Richard L. Killmer, Robert S. Lecky, Debrah S. Wiley (Pilgrim Press, 

Philadelphia, 1971).1

They Love It But Leave It: American Deserters, Devi Prasad (War Resisters 

Internal, London, 1971).*

1

 Available from NISBCO.
702

War Resisters Canada, Kenneth Fred Emerick (Pennsylvania Free Press; Knox, 

Pennsylvania; 1972).’

We Won’t Go, Alice Lynd (Beacon Press, Boston, 1968).

When Can I Come Home?, Murray Polner, ed. (Anchor Books, Doubleday and 

Company; Garden City, New York; 1972).

Words of Conscience: Religious Statements on Conscientious Objection, National 

Interreligious Service Board for Conscientious Objectors (NISBCO, Washington, 1973).’

Pamphlets, packets, leaflets, study guides (see organizations for addresses')

A Christian Declaration of Amnesty, Mennonite Central Committee, 21 South 

12th Street, Akron PA 17501 (6 pages, free).

American Rep ort Amnesty Supplement, Clergy and Laity Concerned (12 pages, 

200).»

AMEX-Canada, magazine published by American exiles in Canada. 1 year 

subscription is $5.00. Packet of 6 pack issues for $3.00.

Amnesty: A peace Church Concern, study guide from the Mennonite Cen tral 

Committee (11 pages, free).

Amnesty Education Packet, NISBCO ($1.00).2

Amnesty Group Discussion Guide, NISBCO (4 pages, 3^0 in bulk orde rs).2

Amnesty in Perspective, A S tudy Document, American Lutheran Church Commission on Church and Society, 422 S Fifth Stree t, Minneapolis MN 55415 

(6 pages, 60).

Amnesty News, Americans for Amnesty (8 pages, 200).

Amnesty Packet, Central Committee for Conscientious Objectors ($1.00). 

Amnesty Packet, Indo chin a Program/American Frien ds Service Comm ittee 

($1.50).

Amnesty Packet, Fellowship of Reconciliation ($1.00).

Amnesty Packet, War Resisters League ($1.00).

Amnesty Packet, Women Strike for Peace Anti-Draft and Amnesty Clearinghouse 

Amnesty Questions and Answers, Henry Schwarzschild, American Civil Liberties 

Union Project on Amnesty (7 pages, free).

Amnesty Report, newsletter of Families of Resisters for Amnesty and the Safe 

Return Amnesty Committee (available for a contribution).

Amnesty Study Guide and Leader’s Manual. United Methodist Church Board of 

Church and Society, 100 Maryland Avenue, NE, Washington DC 20002 (30 

pages, 500). , T

 .. Amnesty, The Record and the Need, John M. Swomley, Jr., Clergy and Laity 

Concerned (10 pages, 2O0).2

Amnesty: Why? For Whom?, David McReynolds, War Resisters League (10 

pages, 200).1

Biblical Materials a nd the Case for Amnesty, Charles P. Lutz, Lutheran Council 

in the U.S.A., 315 Pa rk Avenue S, New York NY 10010 (2 pages, 10 in bulk).2

Facts on Other Than Honorable Discharges, American Veterans Committee, 

1333 Connecticut Avenue, NW, Washington DC 20036 (12 pages, 350).’

Issues in the Deba te on Amnesty, George A. Chauncey, General Executive Board 

of Presbyterian Church U.S., 341 Ponce de Leon Avenue, NE, Atlanta GA 

30308 (12 pages).

Keeping Mercy for Thousands . . . (Leviticus 19:17), study k it by R abbi Balfour 

Brickner, Union of American Hebrew Congregations, 838 Fifth Avenue, 

New York NY 10021 (26 pages, $1.00).

One Nation Indivisible: The Legal and Historical Case for Amnesty, Harrop 

Freeman, Fellowship of Reconciliation (11 pages, 100).2

Position Pap er on Amnesty, Vietnam Veterans Against the War/Winter Soldier 

Organization (12 pages).

Questions and Answers on Amnesty, NISBCO (4 pages, 20 in bulk orders).2

Religious Statements on Amnesty, compiled by NISBCO (30 pages, 200).2

Rep atriation Project, Central Committee for Conscientious Objectors. (16 pages, 

free).

The Truth About Deserters, rep rint from “The Nation’’, CCCO. (10 pages, 150). 

Utilization Guide, Amnesty or Exile, discussion guide for use with the film 

“Amnesty or Exile”. Broadcasting and Film Commission, National Council 

of Churches, 475 Riverside Drive, New York NY 10027 (2 pages).2

Who Would Get Amnesty? A Fact Sheet, with graphs, NISBCO (4 pages, 2>20 

in bulk).2

2

 Available from NISBCO.

a

 Included In NISBCO’s Amnesty Education Packet.
703

Films and other audio-visual aids

AMNESTY OR EX ILE. 35 minutes, black and white. A docu mentary on U.S. 

war resisters in Canada, designed to promote understanding abo ut those who 

would benefit from an amnesty. Is useful for startin g discussion. Broadcasting 

and Film Commission, National Council of Churches, 475 Riverside Drive, 

New York NY 10027. (Sale: $200, Rental: $25) Limited scheduling available 

though NISBCO for $10 rental plus return postage and insurance.* 1

PER SPE CTIVE S ON AMNESTY. 29 Minutes, color. To be used as a discussion 

starter, especially with groups which are neutral or unfavorable. The film does 

not take a position on amne sty—it presents ideas from both sides. Amnesty 

Project, UMH E-Milw aukee, 2211 E Kenwood Boulevard, Milwaukee WI 

53211 (Sale: $195, Ren tal: $22).

A MA TTER OF CON SCIENC E. 28 Minutes, color. The story of two war 

objectors—one gains a CO classification, the other moves to Canada. Useful 

as background information. Augsburg Films, 422 S Fifth Stree t, Minneapolis 

MN 55415 (Rental: $28).

TR IAL BY FI RE. 27 Minutes. The story of a combat pilo t’s refusal to bomb an 

“enemy” village—deals with obedience to conscience vs. obedience to auth ority . 

Paulist Productions, 17575 Pacific Coast Highway, Pacific Palisades CA 90272 

(Rental: $17.95 color, $11.95 black and white).

WIN TE R SOLDIER FILM S. Several films available on U.S. policy and war 

crimes in Indochina. Vietnam Veterans Against the War/Win ter Soldier Organization, 827 W Newport, Chicago Ill. 60657.

SLIDE SHOW ON AMN ESTY . 20 minutes. One carrousel of slides and a reelto-reel tape containing the script. A discussion sta rte r which includes: America’s 

“haven” tradition, the destructiveness of the Vietnam war, resistance to th at 

war, and the reasons for an amnesty. Minnesota Clergy and Laity Concerned, 

122 W Franklin, Minneapolis Minn. 55404 (Sale: $50).

*AM NESTY: IS IT A GOOD IDEA? 25 minute cassette tape. Charles P. Lutz, 

Luth eran Office of Selective Service Information, speaking on the case for 

amnesty based on the Lutheran “jus t war” tradition. Luthera n Council in the 

U.S.A., 315 P ark Avenue S, New York NY 10010 (Sale: $3).*

Amnesty buttons

Available from:

American Civil Liberties Union Project on Amnesty.

Americans for Amnesty.

Central Committee for Conscientious Objectors.

Fellowship of Reconciliation.

Amnesty bumper strips

Available from:

Fellowship of Reconciliation.

Philadelphia Resistance, 106 S 13th Stree t, Philadelphia Pa. 19107.

Vietnam Veterans Against the War/Winter Soldier Organization.

Amnesty posters

Available from:

Clergy and Laity Concerned.

Fellowship of Reconciliation.

Vietnam Veterans Against the War/Winter Soldier Organization.

National amnesty organizations (Contact for information, suggestions, speakers')

Americans for Amnesty, 235 Eas t 49th Street, New York NY 10017. 

Amex-Canada, P.O. Box 189, Station P, Toronto, Ontario, Canada M5S 2S7. 

Amnesty Information and Action Center, P.O. Box 179, Ann Arbor MI 48107. 

Clergy and Laity Concerned, 235 East 49th Street, New York NY 10017. 

Families of Resisters for Amnesty, 69 First Avenue, New York NY 10003. 

Fellowship of Reconciliation, P.O. Box 271, Nyack NY 10960.

Indochina Program/American Friends Service Committee, 160 North 15tH 

Street, Philadelphia PA 19102.

National Committee for Amnesty Now, 200 Legal Center Building, Eugene OR 

97401.

1

 Available from NISBCO.

1

 Included In NISBCO’s Amnesty Education Packet.

[No te: Items marked with * are available from NISBCO. Items innrked with •• are 

Included In NISBCO’s Amnesty Education Packet.]
704

National Council for Universal Unconditional Amnesty, 339 Lafaye tte Stree t. 

New York NY 10012.

National Interreligious Service Board for Conscientious Objectors, 550 Washington Building, 15th and New York Avenue, NW, Washington DC 20005.

Project on Amnesty/American Civil Liberties Union, 22 East 40th Street, New 

York NY 10016.

Rep atriatio n Project/Central Committee for Conscientious Objectors, 2016 

Walnut Street, Philadelphia PA 19103.

Safe Return Amnesty Committee, 156 Fifth Avenue, Suite 1003, New York 

NY 10010.

Southern Conference Educatio nal Fund, 3210 West Broadway, Louisville KY 

40211.

Special Ministries/Vietnam Generation, National Council of Churches, 475 

Riverside Drive, New York NY 10027.

Vietnam Veterans Against the War/Winter Soldier Organization, 827 West 

Newport, Chicago IL 60757.

War Resisters League, 339 Lafay ette Street, New York NY 10012.

Women Strike for Peace/A nti-D raft and Amnesty Clearinghouse, 1363 Pine 

Court, East Meadow NY 11554.

Further resources

Annotated Bibilography on amnesty, with upd ate additions. A complete and 

comprehensive bibliography of amnesty materials. Available from the Amnesty 

Information and Action Center.

Copies of current amnesty legislation in Congress are available from NISBCO. 

The Rep orte r for Conscience’ Sake, NISBCO’s monthly newsletter. Carries 

news of recent developments on amnesty in the religious community and in 

Washington. (Subscriptions are $2.50 per year.)

N ew C ana a n, C o n n ., March 5, 1974. R o b er t W. K a st e n m e ie r,

Chairman, Subcommittee on Courts, Civil Liberties, and the Administration of

Justice, Rayburn House Office Building, Washington D.C.

I understand th at your subcommittee is holding hearings this week on the

several measures before you having to do with amnesty for dra ft aid immigrants 

and deserters and men with less than an honorable discharge due to the war in 

Southeast Asia. May I by this means register my hope th at your subcommittee 

will vote in favor of general and unconditional amnesty in view of the fact that 

all of us, including Members of the Congress and Administration, share the guilt 

for which they alone are paying any legal penalty. Amnesty is not forgiveness, 

it is the means by which those who have power can if they will use it to bind up 

a nation’s wounds.

E u g e n e C ars on B la k e,

Former General Secretary,

World Council of Churches.

B a ltim o re, M d ., March 4, 1974.

Sta t e m e n t fo r I nclu si o n in t h e P r in ted R ec ord of t h e H ouse

J u d ic ia r y C o m m it tee

H o u se J u d ic ia r y C o m m it t e e: A year after “Peace with honor” in Indochina 

let us count up the score. Over fifty thousand were killed, over fifty thou sand are 

exiled in Canada, over one thousand are missing in action, over one thousand 

are wasting their lives in jail as political prisoners, their only crime, they would 

not serve in an immoral war. All of these men, our best and finest, are sorely needed 

by this Nation in its darkest hour.

I am very proud of my son who is in Canada for conscience’ sake. It is ironic 

th at he is a descendant of the first white child born in the S tate of Georgia September 17, 1733, a child of French Hugueno t parents who came to America for conscience’s sake.

All other Presidents have offered amne sty afte r shattering wars bu t this President is too small, so Congress must act to gra nt universal and unconditional
705

amne sty. Some of the wrongs can be righted. The fifty th ousand dead are wasted 

bu t the fifty thousand living can be given an opportunity to come home and tak e 

their place to rebuild and reunite America.

Sincerely,

Nelle M. Reilly.

Statement of the American Baptist Churches in the U.S.A. in Support

of Amnesty, Submitted by Charles F. Wills, Director of Chaplaincy Services, National Ministrie s

Mr. Chairman, and Members of the Committee, I commend you for holding 

these hearings on the important matt er of amnesty. It is my pleasure to bring 

before you the tex t of a resolution in sup port of amnesty which was adopted by 

the American Baptist Churches in annual convention in 1969. In keeping with 

this position, I would urge your early approval of legislation to provide amnesty 

“for all persons who are eith er in jail or outside the cou ntry due to their acts of 

conscience against the war in Vietnam and the Selective Service system .” The 

sta tem ent follows:

“Just as we respect the convictions of those young men who have felt th at it 

was th eir duty to comply with the d raft laws of our country by entering m ilita ry 

service, so we also respect those young men who, during recent years, have 

resisted the dra ft because of their sincere conviction th at participation in the 

Vietnamese war would constitute a violation of the ir consciences. We deeply 

sympathize with the families of those young men who have died in the performance of th eir military duties and we sympath ize with those young men and their 

families who have become alien ated from the ir government thro ugh their pro test 

against this war. We honor those men who have sacrificed their future by dea th 

on the battlefield and we respect those who have risked the ir future by conscientious acts of non-conformity. Therefore, consistent with our concept of freedom 

and conscience, and recognizing th at many of our ancestors came to this cou ntry 

to avoid conscription in Europe, we call upon the President of the U.S. to gra nt 

amnesty upon the cessation of hostilities or upon the ma jor reduction of American 

forces for all persons who are eith er in jail or outside the country due to the ir 

acts of conscience against the war in Vietnam and the Selective Service system.”

J oint Washington Office for Social Concern,

Washington, D.C., March 5, 1974- Hon. R obert W. Kastenmeier,

Chairman, Subcommittee No. 3, Committee on Judiciary, Rayburn House Office

Building, Washington, D.C.

Dear Mr. Chairman: We are pleased to submit to Subcommittee No. 3 of 

the House Committee on Judicia ry the enclosed lette r concerning the issue 

of amnesty.

We hope th at this statem ent can be included in the Subcomm ittee’s hearing 

records, along with the attach ed resolutions from our thre e paren t organizations. 

Sincerely,

R obert E. J ones, Executive Director. Enclosure.

Joint Washington Office for Social Concern,

Washington, D.C., March 5, 1974. Hon. Robert W. Kastenmeier,

Chairman, Subcommittee No. 3, Committee on Judiciary, Rayburn House Office

Building, Washington, D.C.

Dear Mr. Chairman and Members of the S ubcommittee: I write as Executive Director of the Joint Washington Office for Social Concern, representing 

three ethical hum anist and liberal religious organizations: the American Ethical 

Union whose nation al headquarters is in New York City, the American Hum anist 

Association whose head quarters is in San Francisco, and the Unitarian Universalist Association whose continental headquarters is in Boston.

The American Ethical Union, the American Humanist Association and the 

Unitarian Universalist Association all wish to be recorded as endorsing a full and 

unconditional amnesty to all those who refused to enter or to continue military 

service during the years of United Sta tes’ military involvement in Indochina.
706

We are presenting this joint statem ent because our religious persuasions are 

similar and we have nearly identical positions on the need for amnesty. All three 

groups take as their basic tenet a faith in freedom, stressing that in matters of 

religion the indiv idua l conscience must be sovereign. Therefore, we are churches or 

religious associations withou t a fixed religious creed or dogm a, though our members 

have a b road consensus of b elief with respect to the ethical and moral approach to 

social questions. We are not in the cate gory of “ peace” churches; rather our 

members hold a wide range of positions on the questions of participa tion in war, 

inclu ding the pacifist position bu t not excluding members who supp ort the use of 

force when deemed necessary in international relations.

We belie ve that the best interests of the United States Gove rnment and the 

Ame rican people will be served by the granting of amn esty to those individuals 

who have been exiled or jailed by the unfo rtunate circumstances of the last few 

years, namely, the Indochina War.

Without making judgmen ts as to the causes and the blam e for American 

milita ry invo lvem ent in Vietnam , Cam bodia and Laos, we wish to make the 

poin t that over the course of the war in those countries, American public opinion 

made a drastic shift from stron g support of our com bat role, finally, to opposition 

to continued military participa tion. The signing of the Paris Peace Accords in 

January , 1973, and the vote in the Congress last summer, ending the Cam bodia 

bombing, signalled this dramatic shift in opinion.

We must ask ourselves if the you ng men, who had the prescience and the courage to oppose this war before the great mass of the American public and the 

Congress came around to a position of opposition, are to be punished indefinitely 

for their “ premature ” opposition? Here, we speak of those who refused induction 

and wen t to jail or who went into exile rather than serve in what the y deemed an 

immoral war.

It is proper for groups like ours, which are concerned with ethical and moral 

question s, to address the ethical and moral imperative in amn esty. The persons 

amnesty would touch dire ctly were nourished in the Ame rican ideals of freedom of 

tho ugh t and action. Ha vin g made a personal moral and ethical decision, many of 

the dra ft resisters chose to follow their conscience in an affirmation of life rather 

than to acquiesce in what was felt to be a life-d estro ying and immoral situa tion. 

These were not ove rt acts of aggression or treason against the Unit ed Sta tes 

Governm ent or its people, bu t rather, the exercise— by individu als— of freedom 

of though t and conscience; by reason of tha t tho ught and conscience actions 

whereby the indiv idual could retain personal int egr ity. When the situa tion is s uch 

that a large number of dire ctly invo lved persons are not obeying the law — in this 

case youn g men of d raft age— then it does not necessarily fo llow that those persons 

are consciously conspiring to destroy the mechanisms behind that law. It may 

well be that the law or the s ystem itself is to blame for forcing individuals to tak e a 

stand whereby the y must brea k the law in an act of conscience. The end of the 

war has eased this personal dilemm a for the young, bu t the question for those 

man y dissaffected young men who resisted and are still in exile, or prison, remains. 

Am nesty is the single act with which government can set to rest this problem. 

Tho ugh amnesty is not a “ right,” it is a discretionary act of grace and reconciliation of the Presid ent or the Congress.

Our three groups call for an unconditional amnes ty; that is, an act which is 

broad and plenary, app lyin g to dra ft resisters, deserte rs, exiles, those serving or 

havin g served a jail sentence, and, in the case of the Unitar ian Un iversa list 

Asso ciation, amnesty also for veterans with less tha n honorable discharges. For, 

whereas the motives for these various acts ma y embrace a spec trum of religious, 

moral, ideological, or personal reasons, the circumstances which impelled the act 

are the same— the Indo china War. Thus, all acts or failu re to act that arose out 

of the war would not have normally occurred and should be included in the 

amnesty.

The re are ex ceptions that m ight n ot be included under an amnesty ; for example, 

war crimes covered by the precedents and principles laid down at the post-World 

War II Nuremburg and Japan Tria ls. Where there are findings of sub stan tial 

injury to persons or pr ope rty such as wa r atr ocities inflicted on m ilit ary or civ ilian s, 

larceny, rape, etc., it would be proper to look to circumstanc es and responsibility 

of the individ ual person. But, we are speakin g here of amnesty for those who did 

not perpetrate gross violati on of human law or any aggra vated offense against 

morality, but who, on the con trary, suffer because they reje cted the brutali zing 

effects of the war and mi litary service.

The re are sub stan tial precedents in this country regarding amnesty (even 

thou gh we ackn owle dge there has neve r been a full, uncondition al amnesty). In 

most cases it was granted after commission of open acts of viole nce or treason
against the government as after the Civil War. Legislative proposals offered in 

the Senate and the House which contain a work requirem ent are not am nesty and 

we do no t find them acceptable. These bills are a means of punishing persons who 

decided th at the war was morally wr

rong and th at th ere was no security threat to 

this country, in many cases, long before political leadership made the same 

judgments. It would be unjust to continue to punish men whose consciences 

impelled them to think the unthinkable , th at their country was engaged in an 

unjus t war, before the m ajority had reached th at conclusion. An im por tant point 

to keep in mind is that, while people will continue to dispute the merits of the 

war and the blame for it, the burdens of the war will be the life-long inheritance 

for young people, and for the most par t, the y will bear the legal consequences.

Why must we persecute a select group of Americans while there are m any others 

just as strongly opposed to the war who, but for the fact of their age or the luck 

of the lotterv, were free of having to make the terrible choice of conscience or 

expedience? By gran ting am nesty; by dismissing the question of blame, this legal 

debris would be removed from the lives of the young so th at all might begin the 

building of a better nation and society.

Another ramification of an act of amn esty would be th at it would carry strong 

moral and symbolic meanings concerning the acts of all parties surround ing the 

Vietnam experience. It would move the country toward reconciliation. As the 

Congress or President, in granting amnesty, would do so from a position of 

stre ngth, likewise the act would reflect a nation, strong and flexible enough to 

acknowledge its errors and y et large enough in spirit to contain compassion even 

in the wake of so much horror.

An act of amnesty would dem onstrate th at America—tra ditiona lly the refuge 

for political exiles and refugees from religious and political oppression—is still 

capable of a compassionate and communal moral act after the appa lling experiences of the war. The healing and reconciliation and the nation ’s redirection 

toward peace with itself will be difficult enough with out the continued divisive 

rhetoric and actio n of exclusion.

Sincerely,

R o b er t E. J o n e s, Executive Director.

P.S.—A ttach ed are Resolutions of the American Ethical Union, the American 

Human ist Association, and the Unitarian Universalist Association, dealing with 

the m att er of amnesty.

Am er ic an E th ic a l U nio n

A PP R O V ED R ESO LU TIO N ON U R G IN G AM N ES TY NO W

Whereas we believe th at it is time to do everything that would contribute to a 

healing in the Nation caused by our participation in warfare in Southeast Asia: 

Therefore, be it

Resolved, Th at the American Ethical Union urge the President of the United 

State s, as well as the Congress, to provide, with out fur the r delay, full and unconditional amnesty to all those who refused to enter or to continue military 

service.

Passed a t the Riverdale Yonkers Assembly April, 1973.

R eso lu tio n on Am nest y Adopt ed by R e fer e n d u m of t h e M e m b e r s h ip of

t h e Am er ic an H u m a n is t Asso cia tio n

The longest and most controversial war in the histo ry of our nation has come to 

an end. While all of us rejoice in the retu rnin g of the POWs, the natur e of the 

War in Indochina, its origin and its goals, have caused a serious division among 

the American people and have left deep wounds which now must be healed. One 

of the great issues to be faced is the exile of a very large number of young men who 

refused to serve in the military because of conscientious objection to wars and 

violence. Some of these men based the ir objection on orthodox religion in the 

Christian-Judaic tradition, many more on a humanistic approach to life. This 

second category was denied their claim to a conscientious objecto r classification by 

local draf t boards in the years up to late 1970 when the Welsh case was won. They 

had to choose between prison and exile in order to be true to their belief. These 

conscientious young people are the wave and hope for the future to guide us towards a World Without War and a True Peace.

Therefore we, the members of the American Hum anist Association, declare th at 

the time for recrimination should be ended. If we can make peace w ith ou r enemies
708

and can offer our efforts and assistance to rebuild the ravaged country of North 

Vietnam, certainly we can make peace with our own sons.

The American Hum anist Association adopts the above resolution and asks the 

President and Congress to follow the generous tradition of American histo ry in 

which amnesty was gran ted after every war including the Civil War a nd WWII. 

We are asking for unconditional amnesty now.

Am nes ty— G e n er a l R eso lu tio n Adopt ed by th e 12th G e n e r a l Ass em bly

o f th e U n it a r ia n U ni ver bali st Ass ocia ti on

Whereas hundreds of thousands of Americans have unjustly suffered a loss of 

civil rights, libe rty and jobs because they have been in opposition to the Indo china 

War or to the racism and oppression of the American military and dra ft systems, 

and

Whereas, according to Canadian Department of Immigration statistics there 

are tens of thousands of anti-war exiles in Canada alone while, however, the 

majority of war resisters are inside the U.S., where an estimated 200,000 live 

underground, thousands behind bars, an over 500,000 veterans suffer from less 

tha n honorable discharges issued during the Indochina War era, and

Whereas any amne sty th at separates for different tre atm ent pre- and postinduction resisters (draft resisters and those who resisted or separated themselves 

from the military) fails to recognize th at class and race factors more th an anything 

else resulted in these distinctions and th at such an amnesty would essentially 

discriminate against working-class and a disproportionate number of non-white 

resisters, those who have alrea dy been forced to bear the heaviest burdens of the 

war: Be it

Resolved, Th at the 1973 General Assembly of the Unitarian Universalist 

Association urges th at the Congress of the United States enact a universal and 

unconditional amne sty (with no alte rnate service or other punitive measures, and 

to avoid unworkable, unjust case-by-case judgm ents) for:

1. All military resisters including so-called “deserters,” and dra ft resisters 

in exile or underground in the U.S.;

2. All people who, because of their opposition to the Indo chin a War, 

have been arrested, have been or are now in civilian and military prisons, or 

for this reason are now being sought for prosecution—this includes a clearing 

of their records;

3. The more than half-million Vietnam era vete rans who have been 

discharged from the military with less than honorable discharges who will 

suffer from perm anen t loss of civil rights, and discrim ination in employment 

with out an amnesty. The classification of military discharges as honorable 

or otherwise should be eliminated retro activ ely into one single category of 

discharge; be i t further

Resolved, th at th e 1973 General Assembly of the Unitarian Universalist Association urges member societies of the Association to give specific attention to the 

issues involved in, and the means toward achieving a universal, unconditional 

amnesty by initiating discussion within each society, guided by materials to be 

developed by the Department of Education and Social Concern, and by members 

of these societies individually and collectively communicating, educ ating and 

organizing on this issue to the limits of their energies, tim e and comm itment until 

such a time as a universal and unconditional amnesty is effected for all of those who 

have been, are being, or would be punished for their resistance.

By supporting complete amnesty, we do not mean to imply lack of recognition 

of the hardships, heartaches and suffereings of all other citizens who were affected 

by U.S. military involvement in Southeast Asia.

R o sl in d a l e, M ass .,

February 27, 1974-

M r . W il l ia m D ix o n ,

Council, Ju diciary Committee,

Rayburn House Office Building,

Washington, D.C.

D ea r S i r : It is respectfully requested th at you inform the Chairman and 

members of the subcommittee considering the amnesty bills th at have been 

introduced th at I am for unconditional amnesty.
709

I am a retired volunteer naval reservist with over 30 years of creditable service 

and feel that before forcing these young men to choose whether to go to Vietnam 

and possibly become a murderer, drug addict, maimed for life or a corpse or 

whether to go to jail or into exile, reserve trained units should have been activated.

It is also requested that the enclosure— a summary of an address given by 

Indochina War Gold Star Mother Mrs. K ay Litchfield of 64 Beech Street Dedham 

Mass, be given the chairman and committee members for possible insertion in 

the Congressional Records.

Very truly yours,

R ic hard J. C a s il l i.

The following is nearly the complete text of an address on amnesty given by 

Indochina Gold Star Mother, Mrs. Ka y Litchfield, during a program for a lasting 

peace held in historic Faneuil Hall, Boston Mass, on August 16, 1973.

Most of our young American men who went to jail, into exile, or who became 

deserters, were under 12 years of age when we became involved— ten years 

ago— in the illegal and unpopular Indochina War. Not only did they have no 

part in electing the political leaders responsible for what has been rightfully 

termed “ the biggest blunder in United States history” but they were deprived 

of their constitutional and God-given rights of Life, Liberty and the Pursuit of 

Happiness.

At 18 these boys, who were just reaching manhood, found themselves in the, 

unenviable position of being forced to fight in an American Foreign Legion 

taking sides in another country’s civil war. They heard and read of the My Lais, 

the Pentagon Papers, the serious drug situation, the crooked elections, the Saigon 

tiger cages for political prisoners, the graft, corruption and frightening testimony 

of the Vietnam Veterans Against the War. The deceit and lies which were used 

to justify our presence in a tiny backward country that could never pose a threat 

to the most powerful nation on earth was an insult to their intelligence. The y 

watched their fellow teen-agers returning from the war zone in flag-draped 

caskets or disabled for life; their sacrifices all but ignored by the vast majo rity 

of a pleasure-seeking American public, concerned only with their own selfish 

interests and world of materialism.

As the “ endless” war dragged on, the horrible and bitter truth became quite 

evident— they were members of a minority group, and lacking a constituency th at 

mattered to the White House, they were being used as “ expendables” to maintain 

the “ status quo” situation to keep a corrupt military dictator in power. These 

young men were unable to comprehend why it was only their young lives that were 

being disrupted, and even destroyed, while the only contribution the vast 

majority of their fellow-Americans were making towards the war effort was the 

60«! out of their every tax dollar that went to pay for it. Rightfu lly confused and 

frightened at this terrible injustice, they were desperately in need of understanding 

and guidance, but found most of us insensitive to their problem. By failing to 

provide these bewildered youngsters with sufficient and proper counseling— as 

well as discouraging them from seeking it out because of a blind sense of patriotism, 

ignorance, or concern about what other people might think— we, in effect, 

betrayed them. As a result of this betrayal, hundreds of thousands unfit for 

military service because of physical or mental disabilities, were inducted. Others 

were drafted even though they qualified for “ Hardship” or “ Conscientious 

Objector” status, or who were just plain psychologically unadaptable to service 

life. Is it any wonder then, since 1967 there have been over 354,000 desertions, 

hundreds of thousands courts-martial, bad conduct and less-than-honorable discharges— along with separations from the service “for the convenience of the 

government?” These, along with their families, are the forgotten casualties of 

this terrible conflict.

Truthfully, can we blame these young men for not wanting to be dehumanized 

and exposed to crimes of murder, rape, theft, etc., or to suffer permanent physical 

or mental disabilities— or even to die, in a “ useless war?” How can those amongst 

us who fou ght in past wars even think of not granting amnesty? Our purpose for 

fighting was to make a better world for our children and to protect the very rights 

and freedoms that, paradoxically, we are now responsible for them losing.

Certainly, those of us who became panic-stricken when faced with induction but 

were able, through “ contacts” or otherwise, to dodge the draft b y obtaining billets 

in reserve units— should be sympathetic to our brothers less fortunate or who had 

the courage of their convictions. Those who have been indifferent to the war, those 

who have contributed nothing towards it, and those who have been unaffected by
710

it, should be moved—as a matt er of conscience—to speak ou t for amnesty. Others 

among us who have profited from the war—materially or career-wise—have an 

opp ortunity to soothe our consciences somewhat, by taking a stand in favor of 

these young victims of this Great American Tragedy. Lastly—and prob ably most 

importantly—everyone in the religious life is morally obliged to p ut into practice 

the compassion and forgiveness which they preach and lead the fight to obtain 

amnesty, as partia l restitu tion for the terrible injustice of our sons “ paying for 

the sins of the ir father s.”

The intent of th e draft law was to provide a stron g m ilitary organizatio n which 

would serve as a deterre nt to an unprovoked attack on our country. The United 

States Government has violated its own laws by forcing these “ draftees” to serve 

as “ mercenaries” fighting “ undeclared” wars thro ughout the world. It should be 

carefully noted th at for political reasons and the fact th at our national security 

was not being threaten ed, few trained reserve units were activated during this 

ten-year period. Our negligence in permitting the Executive branch of our government to usurp the constitutional war-making powers of the Congress has tragically 

affected the lives of too many American young men and their families. Unless 

this mistake is rectified, we will be haunted forever b y the thought t ha t this “ Lost 

Gene ration” was the result of our own failures. The reunification of America, 

which has been polarized and torn apart by inte rnal dissension, never will be 

accomplished if we continue carrying on a policy of vindictiveness and vengeance 

against these innocent unfortu nate s whose only crime was—they were born at 

the wrong time.

“ Amnesty never” , means “ Divided forever” ............ In the name of God,

human decency and justic e—and for the reunification and preservation of our 

cou ntry—we cannot afford to a bandon them.

U n it a r ia n U n iv e r sa l is t Asso c ia tio n, 

D e p a r tm en t o f E ducati on an d Socia l C o n c e r n ,

Boston, Mass., March 1, 197^.

Hon. R o b er t W. K a st e n m e ie r,

Ray burn House Office Building ,

Washington, D.C.

D ea r C ongres sm an K a s t e n m e ie r : Enclosed is the tex t of a resolution on 

“ Amnesty” passed by the delegates to the General Assemby of the Unitarian 

Universalist Association of Churches and Fellowships in North America, convened 

in Toronto, Canada, June 1973.

Our constituents through out the fifty states are vitally concerned about this 

issue. Sermons, forums, film showings and discussions, correspondence to this 

office, all reflect the growing amnesty movement.

We urge you to seriously read and consider this resolution as background 

mate rial for the March 7-11 amnesty hearings.

Sincerely,

M a rga ret E. W il lia m s,

Social A ction Clearing House.

T e x t o f a R eso lu tio n on A m nest y P ass ed at t h e 12th G e n e r a l Ass em bly

o f th e U n it a r ia n U n iv e r sa lis t Asso cia tio n

W’hereas hundreds of thousands of Americans have unjustly suffered a loss of 

civil rights, liberty and jobs because they have been in opposition to the Indo ­

china War or to th e racism oppression of the American military and d raft systems 

and

Whereas according to Canadian Departme nt of Immigration statistics there 

are tens of thousands of anti-war exiles in Canada alone, however, the majority 

of war resisters are inside the U.S., where an estim ated 200,000 live underground, 

thousand s behind bars, many with court records, and over 500,000 veterans 

suffer from less tha n honorable discharges issued during the Indoc hina War era and

Whereas any amnesty th at separates for different tre atm ent pre- and postinduction resisters (draft resisters and those who resisted or sepa rated themselves 

from the military) fails to recognize th at class and race facto rs more tha n any ­

thing else resulted in these distinctions and th at such an amnesty would essentially discrim inate against working-class and a disproportionate number of 

non-white resisters, those who have already been forced to bear the heaviest 

burdens of the war: Be it
711

Resolved, Th at the 1973 General Assembly of the Unitarian Universalist Association urges that the Congress of the United States ena ct a universal and 

unconditional amnesty (with no a lter nate service o r other punitive measures, and 

to avoid unworkable, unjust case-by-case judgments) for:

1. All military resisters including so-called “deserters” , and dra ft resisters 

in exile or underground in the U.S.,

2. All people who, because of their opposition to the Indochina War, have 

been arrested, have been or are now in civilian and military prisons, or for 

this reason are now being sought for prosecution—this includes a clearing of 

their records;

3. The more tha n half-million Vietnam era veterans who have been discharged from the m ilita ry with less than honorable discharges who will suffer 

from perman ent loss of civil rights, and discrimination unemployment withou t an amnesty. The classification of military discharges as honorable or 

otherwise should be eliminated retro actively into one single category of 

discharge; be it fur ther

Resolved, Th at the UUA 1973 General Assembly urges member societies of 

the Association to give specific a ttention to the issues involved in, and the means 

toward achieving a universal, unconditional amnesty by initiating discussion 

within each society, guided by materials to be developed by the Dep artm ent of 

Educatio n and Social Concern, and by members of these societies individually 

and collectively communicating, educating and organizing on this issue to the 

limits of th eir energies, time and commitm ent until such time as a universal and 

unconditional amnesty is effected for all of those who have been, are being, or 

would be punished for their resistance.

By supporting complete amnesty, we do not mean to imply lack of recognition 

of the hardships, heartaches and sufferings of all other citizens who were affected 

by U.S. military involvement in Southeast Asia.

Am er ic an F r ie n d s Ser v ic e C o m m it tee,

E l P as o-L as C r u ces C o m m it t ee,

El Paso, Tex. March 2, 1974-

Hon. R o b er t K a st e n m e ie r,

U.S. House of Representatives,

Washington, D.C.

D ea r C ongres sm an K a s t e n m e ie r: The attach ed statem ent is submitted 

to your subcommittee in connection with next week’s hearings on amnesty.

I am a Vietnam veteran, and I feel th at some discussion of the cowardice issue 

is in order. Please feel free to use any or all of this stateme nt for whatever purpose 

you desire.

Sincerely,

H am il to n G reg o ry, Chairman.

Sta te m e n t o f H amil to n G r eg o r y, C hair m an o f t h e Am er ic a n F r ie n d s

Ser v ic e C o m m it tee in E l P as o, T e x .

I am a Vietnam veteran, and I would like to speak to one aspect of the am nesty 

argument: did these men resist the dra ft because they sincerely believed the war 

was wrong or were simply acting out of cowardice.

The charge of cowardice, made frequently by opponents of amnesty, has 

always seemed ridiculous to me. If a man faced with induction had been a coward, 

he could have chosen from a number of options, all of them more pleasant tha n 

prison or exile:

1. He could have gotte n a studen t deferment and stay ed in school until 

age 26.

2. He could have signed up for a safe assignment in the National Guard 

or Reserves.

3. He could have declared himself a homosexual.

4. He could have shot off his big toe or cut off his trigger finger.

5. He could have gotten a medical deferm ent by going to a physician 

regularly in the months before induction with com plaints of some mysterious, 

hard-to-diagnose ailment.

The resisters took a hard er road. Some submitted to the bruta lity of prison 

life and the prospects of being ex-cons the rest of their lives. The exiles paid
712

a great price, too—leaving home, giving up work, going underground, drifting 

from place to place, wondering whether they had cut themselves off forever from 

family and friends.

Many Vietnam veterans such as myself have a grea t deal of respect for the 

men who resisted the war. If the clocks were turned back, many of us would 

follow their example—if we had the moral courage.

The resisters aren’t the only ones who need amnesty. We all need it. We need 

to heal the wounds which the war has caused at home. A lively d ebate on amnesty 

was held recently at Temple Mt. Sinai in El Paso, Texas, between retired Army 

Colonel Landon Witt and Conscientious Objector Rober t S. Vogel, who is Peace 

Education Secretary for the Pacific Southwest region of the American Friends 

Service Committee. At the end of the arguments, the moderator rema rked th at 

the debaters represente d the polarizatio n th at exists in the U.S. today. Hearing 

this, Vogel walked over to the colonel, shook his hand and held it, and turn ed to 

the audience. “No, we are not polarized,” he said. “Though we disagree, we are 

both Americans. And more important tha n tha t, we are both humans, we are 

both children of God.”

This is the spirit of reconciliation th at we need in American today. Gra ntin g 

amnesty would be the first step. It would pour out the balm of healing, and it 

would show t ha t we are a generous and compassionate people.

Hamilton Gregory.

Jewish P eace Fellowship,

March 4, 1974. Re Amnesty.

Hon. R obert W. Kastenmeier,

Committee on the Jud iciary , House of Representatives, Raybu rn House Office

Building, Washington, D.C.

Dear Mr. Kastenmeier: I have the honor of sub mitting this statem ent on 

behalf of the Jewish Peace Fellowship (J.P .F.) for inclusion in the record of the 

hearings on amnesty being held by the Subcommittee on the Courts, Civil 

Liberties, and the Administration of Justice.

For two generations, the Jewish Peace Fellowship has been the chief organization 

in which American Jews from all sectors of the American Jewish community 

have gath ered to work for peace and to support all peace-making efforts by 

individuals and institutions regardless of religious or ideological orientation. 

Its activities have been certified by rabbinical autho rities, and indeed some of the 

most outstan ding rabbis and moral leaders of Jewry, such as Albert Einstein, 

Martin Buber, and Leo Baeck, have been identified with the Jewish Peace 

Fellowship.

The Jewish Peace Fellowship urges the Congress to initiate pro mpt measures 

for universal and unconditional amnesty for all past, present, and possible civil 

and military charges arising out of and in connection with the military role of 

the United States in the war in Southea st Asia during the last decade or more, 

including refusal of induction, of m ilitary service, less-than-honorable discharges 

from the military, activities in sup port of refusals of military service, etc.

Such universal and unconditional amnesty, the J.P .F . subm its, should be 

extended in order to bring peace (in the Hebrew called shalom, which literally means “ wholeness” ) and the fullest possible prod uctiv e life back into the fabric 

of American society and all of its individual members, so painfully ren t by the 

political and moral antag onism s of the recent period, and in order to advance 

the cause of reconciliation and reconstruction among n ations to which American 

policy is now officially comm itted. We now visit, welcome, and intera ct with 

foreign individuals and governments th at had earlier been called “ our sworn 

enemies” ; can we do any less with tens of thousand s of our own sons, among 

whom are some of the brightest, most sensitive, and most committed to social 

welfare, who made great, perhaps controvertible bu t certainly well intentioned, 

personal sacrifices precisely in order to convince their countrymen th at this, and 

not war, is the proper course to follow?

In addition to the great American trad ition of devotion to individual and social 

welfare, th e Jewish Peace Fellowship has special reasons of its own, of a particu larly 

Jewish chara cter, to urge the Congress to act in this wise. Judaism an d the Jewish 

people have, of course, worked and suffered greatly for millennia on behalf of
mutual unde rstan ding and human improvement. God is believed to be “ He who 

makes peace ” and His children are enjoined to imitate such behavior. Because 

of their loya lty to such valu es, Jews hav e often come into conflict with governmen ts and men that strove for con trary va lues’ the y hav e been jaile d, shunted 

aside, and force d into exile, and man y American Jews first landed on these hospitable shores as religious, social, and milita ry refugees from such conditions. The 

ve ry tho ught of America now, for wh atever considerations, impo sing such a fate 

on many of its own children most be abhorre nt in our own eyes and disgraceful, 

as well as counterproductive, in the minds of people abroad.

We believe, with you, that Ame rica and American s still hav e an impor tan t 

role to play in making life better for all people, here, in the Near East, a nd around 

the globe. Towa rd this goal, we oug ht to put aside in the least pain ful manner 

the recriminations of the past, and to w ork with all our citizens of good will toward 

a more peac eful, jus t, and productiv e world. Am nesty must be an imp ortant 

com ponent of this program.

Sincere ly your s,

Ste ve n S. Sch wa rzschil d.

A nch orage, Ala sk a.

Represe ntati ve R ob er t K as te nm eier ,

Rayburn House Office Building,

Washington, D.C.

D ea r R ep re se nt at iv e K as te nm ei er : Please includ e the enclosed statem ent 

in the records of the upcom ing hearings on amn esty, 7-8 March.

Th ank you,

K im McGee.

A nch ora ge, Ala sk a,

March 3, 1974.

My Brothers and Sis te rs: I subm it this statem ent to you in the hope that 

these hearings on amnesty will result in positive action .

At this time the people of our natio n are apa the tic and divided. People are 

turned aw ay from the rest of hum anity and are losing what moral consciousness 

that we ma y hav e once had. Our interest other than purely personal inte rest is 

falterin g and people are closing their eyes and turning aw ay rather than to recognize repu lsive actio ns and refuse to accept them as the status quo. The people 

of the Un ited States are becoming accustom ed to being lied to! Some will even 

say that these lies are necessary and justifiab le.

Am nes ty is not needed to tell those exiled, underground or imprisoned that 

the y are forgiven, the y are not the ones to be forgiven. Th ey do not need it. 

Those people did not commit crimes, unless thin king for themselves, hav ing the 

courage to keep their own moral beliefs, refusing to kill their brothers and sisters 

and destroy a cou ntry are crimes. Is this nation so cau ght up in the obscene that 

it will go on considering these beautiful persons criminals. Am nesty would be a 

statem ent abo ut ourselves. It would say that we will begin a new life for this 

nation, th at we will not punish those that insist on living end prom oting life 

rath er than just exist and kill. Th at we will no longer perp etua te the same consciousness of hate in our coun try, hate is not the answer, that we will begin the 

chan ge to a consciousness of love.

To begin this change we need the presence and the influence of those exiled, 

underground and imprisoned people to help form a better soci ety. We mus t 

not give up on our citizens and let hate and oppression grow. We are not too 

far gone, we must seize the time and change our way s. With all the political 

crimes th at have and are happening we need a universal and unconditional 

amnesty to sta rt us m ovin g towards a new life. We need it to move us to save our 

civil liberties, we need it to mov e us to sav e ourselves. If we turn our backs any 

longer we will be lost and we will have destroyed ourselves! Our people’s moral 

consciousness is almost none xistant now, we are turned around, let us welcome 

back those that can help us to a better life and society for our own good. Th ey 

hav e not committed the crimes, we have. We need their forgiveness.

In sinc erity and hope for the health of our country .

K im McGee .

31-6 58 0 — 74 •47
714

Reserve Officers Association of the United States,

Washington, D.C., March 4, 1974- Hon. R obert K astenmeier,

Chairman, Subcommittee No. 3, House Judiciary Committee, Rayburn House Office

Building, Washington, D.C.

Dear Mr. Chairman: We understand th at you are conducting hearings on 

the subject of am nesty for dra ft dodgers and deserters.

Enclosed are copies of our Resolution No. 2 adopted by our National Council 

on 16 February 1973.

It is respectfully requested th at this resolution be inserted in the record oi 

your hearings.

Sincerely,

J ohn T. Carlton,

Executive Director. Enclosures

Reserve Officers Association of the United States

resolution no. 2. refusal of a general amnesty for draft dodgers and

M IL IT ARY D E SER TE R S

(This Resolution supersedes Resolution No. 2, 24 Feb. 1972)

Whereas there continues an effort by some individual citizens and newly organized groups to o btain a general amnesty for those American citizens, or former 

citizens who have shirked their duty , fleeing either to avoid induction into the 

United States Armed Forces, or deserting the Armed Forces and takin g sa nctuary 

in foreign countries, and

Whereas after a long and cruel war in which many thousands of our fellow 

countrymen gave their lives, many thousands more were wounded and millions 

served and survived, all in faithful and dutiful response to the call to service of 

their government in th e continuing commitment to freedom and security, and

Whereas the President of the United States and many other citizens in public 

and private life have asserted that these d raft dodgers and deserters must pay the 

legal penalty for refusing to serve their government and taking flight to evade 

the responsiblity which is every citizen’s: Now, therefore, be it

Resolved, Th at the Reserve Officers Association of th e United States reconfirm 

its sta nd against any general amnesty, support the Commander-in-Chief in his 

sta ted position and while praising those who have served during these past ten 

years and who are serving today, condemn the action of those who have failed 

their government which gives and preserves for all citizens their freedom.

Adopted by the Natio nal Council 16 February 1973.

Brig. Gen. Robert D. Upp, USAR,

National President. Attest:

J ohn T. Carlton,

Executive Director.

Harvard University,

The Divinity School, 

Cambridge, Mass., March 3, 1974-

Hon. Robert Kastenmeier,

Chairman, Subcommittee on Courts, Civil Liberties and the Administration of Justice,

House Committee on the Judiciary, Rayburn Building, Washington, D.C.

Dear Representative Kastenmeier: From over five years of involvement 

with the amnesty issue, I wish to present personal testimony on th at vexing 

issue as it affects our victims of the war in Southeast Asia. I am now the Coordinator of Field Education in the Office of Ministerial Studies at the Harvard

Divinity School. I have also been visiting lectu rer a t Andover Newton Theological 

Seminary this year, presenting a course on “Teaching about War, Peace and 

Conscience” . I continue as a consultant to the United Presbyterian Church for 

whom I was for almost five years the Secretarv for Conscience and War. During 

th at time I was chairman of the Interfaith Comm ittee on Draft and Military 

Information, the vice-chairman of the Natio nal Council of Church policy committee on Emergency Ministries Concerning the War, and member of the Boards 

and Committees of CCCO (founded in 1948 as the Central Committee for Con-
715

scientious Objectors), the Natio nal Interreligious Service Board for Conscientious 

Objectors, Prisoner Visitation and Support, and the United Presbyterian Peace 

Fellowship. I have talked with and counseled many war objectors, men and 

women in exile or prison, and an increasing number of veterans hurt by the w ar ; 

I have researched the amnesty issue, written several articles, helped produce a 

film, and have spoken on TV, the radio and to countless local church and community groups. From the time I was lecturing in Australia in 1968 the amnesty 

issue has come to increasing prominence in my own activity and in the concerns 

of the people I have worked with. I believe th at people are becoming read y to 

consider and perhaps even to accept amnesty as public policy.

There is an optimal time for consideration of a particular issue. We are now 

entering th at period. Now tha t there are few draftees left in the army, the POWs 

are home, the all-volunteer armed force seems to be working for the moment, and 

it does not appe ar th at we are hankering after solving disputes in other countries 

through the use of our troops, the technical and strategic considerations standing 

in the way of amnesty have been neutralized. Most religious groups have taken a 

stand at their highest deliberative level of some support for amnesty, and are in 

the long process of educ ating their constituencies on this issue. The divisive 

passions concerning the war are fading, though by no means absent, and the 

people are capable of turn ing th eir attention to the fu ture which is what amnesty 

is really about.

The amnesties of other countries are an example for us: Australia proclaimed 

a full amnesty last year, even providing an option for those who were conscripts 

in the army to get out; Canada gave opportu nity for those who had not complied 

with or qualified under Canadian immigration law to come forward and to regularize their presence under extremely generous conditions th at amounted to a 

complete amnesty for all those illegal immigrants present at the specified time. 

Looking back in recent history, the French under DeGaulle provided amnesty for 

over a million persons involved in opposition to the governm ent over the Algerian 

War. Here in the United States of America, we are entering a period of reappraisal of our policy, a reapp raisal of the adm inistration’s opposition to amnesty 

which may now be seen for its political defensiveness, since the administration 

believes in “forgetting” where its interests are concerned, and there is a hope t ha t 

with the bicentennial observance we might also have an amnesty which is traditional among nations as they celebrate the ir heritage of great anniversaries.

So far, the most striking thing about ou r handling of the am nesty issue has been 

its distortion; its definition has been misrepresented; the statistics have been 

man ipulated; the press has exploited superficially the question for its quick news 

value and the government and the amnesty movement have appeared to use the 

issue and the persons involved for the purposes of their own policitcal vindication. 

Religious groups are at least as much to blame, and perhaps more deserving of 

criticism, for their failure to approach the amnesty question with sound theological, 

moral and educational instinct.

The meaning of “amnesty ” has been diminished to a lesser categ ory of pardon 

or clemency, as a result of the public debate. The proper meaning of amnesty is 

th at it is an act of grace by the sovereign autho rity to eliminate from further 

consideration certain classes of offenses t ha t are no longer in the inte rest of the 

society to continue to prosecute or punish. Most of the proposals for so called 

conditional amnesty are no t am nesty at all bu t provisions for pardons or clemency 

provided by trib una ls operating without full due process which would require those 

“convicted” to undergo limited punishments such as two or three years of indentured service under government auspices; in order to obtain the benefits of this 

procedure the beneficiaries would have to come forward in a way that would admit 

their guilt, and subject themselves to possible prison sentences if the tribu nals 

did not adjudge them qualified, or if th ey failed a t some lat er time to comply with 

the mitigated punishment exacted. Under these proposals individuals would 

“earn im munity ” in the same way t ha t the laws do not now allow double jeopa rdy; 

the y would have done their time.

The misuse of language here is a confusion abo ut the notion of “condition” . 

Conditions may be attach ed to an amnesty in such a way as to ante cedently 

determ ine the class of those who will be subject to its decrees; e.g., laying down 

ones arms, ending the revolt, swearing allegiance, or returnin g from a fugitive 

status, or desertion. Conditions are not to be attach ed to an amnesty providing 

a form of punishm ent or it shades over into pardon or punishm ent and is not 

amnesty. The proposals for required altern ate service are eithe r punishments 

as conditions for pardon and presume the guilt of those involved or if otherwise
716

legis lated for the class of persons withou t providing for due process are in vio lation of th e Fourteenth Amen dment. The b roadest am nesty power is in the Congress 

to determ ine wha t is or is not a law, and it can legislate to prov ide amn esty for 

all those it may deign to designate, and it may do so withou t rely ing upon the 

more limited powers of the President to provide pardo ns for a class of persons, 

(which is of course an amn esty power also).

The numbers manipulation has confused the public most abo ut amn esty. In 

principle it should not ma tter how many people need amnes ty; if some human 

beings need help and it is in our power to help, they should be assisted. The 

Congress does this many times through a private bill th at ma y benefit only one 

person. Practic ally speaking, the issue of numbers has been used to determine 

whet her (a) the class of persons that might be sub ject to amnesty is significant 

enough to bother with to obta in corr ective legislation, or (b) as an index as to 

whether amnesty as a procedure is merited as a method for dealing with some 

large group, which could not be handled under existing court s and laws, or (c) 

as evidence that the past legal arran gements for dealing with these persons were 

inadequa te if a large number of persons found it necessary to resist the draft, 

desert, or tak e other steps when legal or adm inistra tive arrangem ents did not 

prov ide for their circumstances, or the political situ atio n provoked stron g opposition at a time when the nation had not ye t reflected the change in poli cy on a 

political matter.

The administration has therefore soug ht to minimize the numbers of persons 

invo lved . The President said there were onl y a few hundred. Under critic ism the 

President’s advisors subsequ ently expan ded those numbers to tak e the most 

con servat ive figures such as those fug itiv es know n to be abroad. Th e adm inistration has not stressed the number of violator s estimated by the Sele ctive Service 

System, or the number of veterans branded with less than honorable discharges, 

now esti mated on the basis of gove rnm ent figures to be about half a million. The 

mil itar y hav e tended to minimize and to distort the figures on deserting tak ing 

comm anders’ guesses as to motiva tion , and to discount the critic ism of the milita ry 

justice system b y insisting that milita ry violator s be returned to that system from 

which the y fled. On the basis of exte nsiv e interviews I can repo rt that even military chaplains are divid ed as to whet her amnesty should be allow ed or everyone 

required to undergo court s martial. Those chaplains associate d with brigs and 

stockades seem to be most favora ble to amn esty.

The amnesty movement at first was focused on the numbers of those who had 

gone to Can ada, or were in jail as dra ft viola tors. Numbers were inflated by the 

hea vy influx of transients at the tim e of the Cambodian invasion, and by act ual 

unde restim ates by those who were doing couns elling as to the number of eligib les 

the y were reaching. Now these amnes ty adv oca te groups have discovered the 

plig ht of those who were not given full justice eithe r while in the militar y or in 

the disch arge precess itself. Part of this oversig ht was earlie r conditioned by the 

act ive hostility of t he peace mov emen t to those who were in the militar y; but this 

attitud e is now almost entirely overcome as a result of the GI movem ent initi ally 

and the changed and broadened pers pective of the peace mov eme nt in general.

The estim ates of the numbers of non-registrants have undergone tremendous 

expansion this year. M y requests from the Selective Service System Office of 

Pub lic Information for figures on non-registrants were regu larly met with estimates of low numbers or no statistic s. This year the Director of SSS reports, in 

the co ntext of j ustifyin g the current registratio n program, that only 10% (200,000) 

are not registering and tha t this is better than las t year. The Massachusetts 

Directo r reported tha t the shortfall in that state , noted for its greater opposition 

to the draft, was fully twe nty -fiv e percent. Since the cohort of young men becoming 18 is now over two million each year, my own estimate of up to 100,000 

non-registrants should be revised upwa rd to half a million or even a million when 

one extrapolates these reports on non-registra nts bac k over the past five years. 

(The act ual number affected ma y be higher still, for the 1971 amendments to the 

Military Sele ctive Service Ac t extended the sta tut e of limitatio ns so tha t it runs 

for 13 years.) This large group is now sub ject to prosecution if discovered. Now 

tha t Selective Service has been computerizin g the records of viola tors, to par tly 

facilitate their apprehension at border crossings and ports of entry, it might 

initiate the process of comparin g its record of registrants with some other gove rnment record based on date and place of birth, as in the exte nsiv e justice dep artment records, or HE W computers. (Presumably, Social Sec urity System records 

are still inaccessible.) The though t that so large a population , with a high minority 

component, would be exposed to prosecution and litigation with the atte ndant 

social disrup tion for the next five to thirteen years is appa lling.
717

The solution for the non-registrants is n ot only an amnesty, bu t preferably an 

end to registration for the draft. Even were a grace period announced for delinque nt registrants, there would still be some who will n ot comply or who do not 

tru st the governm ent’s proclamation, or who do not hear about the opp ortunity 

to clear themselves. It is not demonstrated on principle th at the registration for 

Selective Service constitutes a significant contribution to defense preparatio n; 

there is no significant difference between the time it will take to revise the present 

records of Selective Service now th at registrants are no longer examined for a 

ready pool, and addresses are notoriously unreliable, and the time it would tak e 

to register de novo for a dra ft in some clear and present danger. The reserves are 

allegedly the trained supplemental force; untrain ed draftees are irrelevant to a 

nucle ar exchange accompanying a super power confrontation. The best way to 

deal with the non-registrants is to do away with the Selective Service records 

altogether! At the end of World War I, the government conveniently ignored the 

thre e hundred thou sand dra ft evaders.

The history of emerging concern a bout Amnesty does no t do credit to the Press, 

the anti-war movement, nor to the religious community. The anti-war movement 

used the Christmas season to appeal for amnesty; as early as 1968 Clergy and 

Laity Concerned raised almost $6000 for relief of exiles, and obtained 30,000 

signatures on petitions; bu t for the most pa rt it was part of the stra tegy to call 

attention to the protest and resistance reflected in those who went to Canada. 

The press gave special attention to the problem at the end of 1971, partly to fill 

space on the week after Christm as. The churches began to pass pro-amnesty 

statem ents beginning in 1969 (United Presbyterian and United Church of Christ 

national bodies went on record), bu t serious and widespread discussion waited 

until 1972. The organizations traditionally identified with the interests of amnesty, 

CCCO, NISBCO, AFSC, etc., delayed taking contemporary statements of supp ort 

for amnesty until 1972 an d 1973, believing th at to do so would interefere with 

trying to end the war, and th at amnesty would come easily at its end. The early 

stages of the amne sty movement were marred by reluctance to include militar y 

personnel and veterans, and not until the Holy Week conference in 1972 did this 

latte r category become e stablished in the amnesty movement.

The amnesty movement has feared tha t pa rtic ular groups of potential recipients 

would be given preferen tial tre atm ent at the expense of others. The President 

mig ht have announced t ha t those who had been in prison would be given pardons, 

which would satisfy his view th at there mu st be a penalty, leaving the vast 

majority outside such a Presidential amnesty. The exiles have feared being forgotten, and the veterans felt they were being ignored by the activists. It is not 

surprising th at the amnesty movement has almost as many factions as the peace 

movement, and it has also failed to develop a cen tris t core, though i t is an issue 

th at could sustain sup port by a broad coalition. Ideological orthodoxy is exacted 

at the expense of com municating w ith the people who will have to vote to return 

to office those Congressemn who d are to vote for amnesty.

The religious groups have been slow to come to und erstand amnesty, and to 

support it. The moralism of popular religion has focused on forgiveness a nd p ardo n 

as the categories of understanding, and have stressed th at some quid pro quo 

should be exacted as a sign of penitence. There has been an offensive paternalism 

in advocating limited forgiveness with magnanimity for sinners which is considerably less t han th at amnesty offered by God. God’s forgiveness is not offered to 

make people feel guilty bu t in order to estab lish a relationship th at rises above 

categories of guilt; the mode of God’s amnesty for us is prev enie nt grace, or 

forgetting of our iniquities. God’s forgiveness blots out our iniquities for his own 

sake (Isaish 43:25). Teaching the religious people of America what to believe 

about amnesty remains a formidable task for the y do not live by these categories, 

and do n ot hear this gospel.

To a large pa rt the hope for amnesty remains with Congress. The Congress 

und erstands th at it make s and unmakes laws, th at the war in Sou theast Asia 

was a puzzling problem for which no easy solutions in the ir own consciences were 

to be achieved and this delay forced many people into conflict with the law as they 

had to decide w hat to do, an d the Congress should also know t ha t th ere is no great 

constituency out there who u nde rstand what the actual legal function of an amnesty is in a civil state. To a certain degree members of congress will have to v ote 

the ir consciences on this issue, knowing th at it is probably in advance of what most 

Americans can und erstand. If amnesty is enacted it will not settle the question 

of the meaning of this last conflict, it will hold open the door th at dissent can be 

tolera ted in a great democracy without destroying it. If amnesty is n ot enacted,
718

ther e will be less enco uragement to oppose injustice in the futu re. Mo st of all the 

fat e of perhaps a million or more youn g A mericans in need of mer cy will be affected 

by the actio n or inaction of Congress.

Respe ctfull y submitted.

L. W il lia m Y o lto n,

Coordinator for Field Education,

Consultant to United Presbyterian Church on War, Peace and Conscience.

Enclosures.

Sta tem en ts Ab o u t Am nest y by t h e G e n er a l Asse m b l ie s o f t h e U n it ed

P r e sb y ter ia n C h urch in th e U.S.A .

In a statem ent on “ War, Peace, and Conscienc e” the 181 st General Assemb ly 

(1969) said:

“ Redress. Available evidence indicate that the prese nt administration of the 

Sele ctive Service law has led to miscarriage of justice in some individ ual cases; 

and furthermore, the law itself does not provide relief for those who are morally 

and conscientious ly opposed to a particu lar war. It is imp erative that steps be 

take n to redress wha tever miscarriages of justice have occurred under these 

conditions as soon and as sys tem atically as possible. Moreove r, amn esty for those 

whose violations of law are based upon higher loyalties in a cherished possibility 

within the American trad ition and compatible with the unde rstan ding of God as 

a God of mercy. Therefore, redress of grievances should include consideration of 

amn esty in appr opriate cases.”

In its recommendations to public authorities and the general society regarding 

public policy the Assemb ly

“ Asks the Congress, the President, other officials and our fellow citizens for 

reconsideration of the plig ht of those you ng men who, in good and sensitive 

conscience, hav e found that the y cannot participate in a par ticu lar war but have 

not had redress or relief under existing laws. We urge retroa ctiv e recogn ition of 

their claims and reduction of pun itiv e sentences, together with appropriate 

amnesty as soon and as sys tem atically as possible.”

In a statem ent on “ The Moral Crisis of the United Sta tes in Indoch ina” the 

183rd General Assemb ly (1971) said:

“ We . . . warn that the civil rights of dissenters are partic ula rly vulnerable 

during times of national crisis and tension, and that therefore special diligence 

must be exercised by the Church, citizens, and the gove rnment to preserve those 

rights. We specifically urge Presidential amn esty for those who are imprisoned or 

exp atriate for conscien tious dissent to this war.”

Am nest y

Ove rture 141, from Maumee Va lley Presby tery, reque sted the 185th General 

Assemb ly (1973) to tak e actio n “ On Dea ling with Peoples Alienate d from Society 

by the Vietnam Con flict.” It urged a Presidential Commission to determine a 

bene volent and jus t solutio n for such people, stressing the doctrine of grace and 

forgiveness.

The General Assemb ly recomm ended no action on that particu lar Overtu re, 

but adopted the following statement and recom mendations concerning amn esty:

“ In response to Overture 141, we know and respond to the sa virg l ove o f Jesus 

Chr ist and therefore, we dare to be agents for God ’s Lo ve in the world.

“ The question of amn esty for those who have been in conflict with the gove rnment becau se of opposition to the war in Indo-C hina is much misunderstood. 

Solutions will arise as its moral and theological aspects are explo red beyond 

merely political consideration s. We must regain a proper pers pective and remember that Ch rist’s Church has a min istry of reconcilia tion with justice which 

includes atte nding to opposing views.

“ Because official American particip atio n in the ground war in Indo-C hina has 

finally come to an end since the General Asse mbly last spoke of amn esty, we 

believe th at there is an urgen t need for the church to stu dy amnes ty in depth. 

Such a stu dy should include the historical, legal, polit ical, moral, and theologic al 

dimensions of amnesty, stress ing the unconditional natu re of amn esty. Par ticu lar 

atte ntio n would be paid to all persons who might be affected by amnesty or 

further punishment. Stu dy should lead to action in Chr istian concern to influence 

others, the media, and the government to achieve solutions that strengthen peace.

“ Therefore, the 185th General Asse mbly (1973):
719

“A. Reaffirms the amnesty pronouncements of the 181st General Assembly 

(1969) and the 183rd General Assembly (1971).

“B. Urges th at all congregations und erta ke a study of the question of 

amn esty in 1973-74 under the guidelines of th is statement, using the m aterials 

now becoming available.

“C. Requests the Program Agency to contin ue to provide adequate study 

materials and to affirmatively communicate to the church a t large t he urgency 

of the need for study and th e availability of such resource materials.

“D. Suggests th at study of amnesty be considered as pa rt of the peace 

priority program.

“E. Urges all United Presbyterians to prayerfully underta ke a reexamination of their views on amnesty .”

Draft Repeal

The 185th General Assembly (1973), mindful of the longstanding position of the 

UPCUSA favoring repeal of the military draft, and mindful of the continuing 

dilemm a posed for young men facing the question of registration for the dra ft 

urges UPCUSA church members and judicato ries to support the current move 

toward effective repeal of the draf t law.

NAW R,

Chicago, III., March 6, 1974-

House J udiciary Subcommittee No. 3,

U.S. House of Representatives,

Washington, D.C.

The National Assembly of Women Religious is an association representing over 

3,000 individual members and 88 group members. Following is our complete 

statem ent regarding amnesty, expanding our telegram sent to you on the same 

date.

“The Natio nal Assembly of Women Religious, aware of its commitm ent to a 

Ministry for Justice, and supp ortive of Pope Paul Vi’s them e for the Holy Year, 

Reconciliation, endorses a universal and unconditional amnesty for those fellow 

citizens in prison or exile because of their response to laws relating to military 

service.”

S. Catherine Pinkerton,

Chairperson.

Archdiocese of Detroit,

Office of the Vicar General,

Detroit, Mich., March 2, 1974-

Mr. Henry Schwarzchild,

American Civil Liberties Union Foundation, Project on Amnesty, New York, N. Y.

Dear Mr. Schwarzchild: I am sorry for the delay in responding to your letter 

of February 14th. I am enclosing a copy of two articles I wrote in regard to amnesty.

As you note, the one entitled After the War, Three New Goals does not deal 

exclusively with amnesty, bu t it is mentioned at some length, so I tho ught it 

migh t also be of some use.

I’m sorry for the delay in getting these two articles to you. I hope my slowness 

doesn’t cause any great inconvenience. If there is anything else I can do, please 

let me know.

Keep up the good work and please keep me in your prayers as well.

Sincerely yours,

Bishop Thomas J. Gumbleton,

Auxili ary Bishop of Detroit,

Amnesty Statement by Bishop Thomas J. Gumbleton, Auxiliary Bishop

of Detroit

Americans are divided over the question of amn esty for the 80,000-130,000 

dra ft resisters and military deserters who chose foreign exile over m ilita ry service 

in Vietnam. A Gallup Poll indicated th at 63% of the American people favor some 

kind of pardon for these young men. But only 7% favor an unconditional amnesty, 

one t ha t would not require a few years’ a lternative service in a hospital, the Peace 

Corps, VISTA, or some such organizatio n or institution .
I favo r an unconditional amnesty for these young men as well as for those who 

are presently serving prison sentences for resisting the draft. I base my position 

on th e following arguments: First, the American involvement in the war has come 

to be regarded as immoral by a subs tantial number of Americans including 

religious leaders and repre sentatives of religious bodies. The recent general 

convention of the United Methodist Church described the dea th and destruction 

that America has visited on Vietnam as “a crime against hum anity” . Many 

Americans have come to see th at the dra ft resisters and military deserters were 

righ t in their refusal to participate in this tragic slaughter. Can we rightly punish 

those with whose political and moral judgm ents so m any of us now agree?

Secondly, the Selective Service Act does not provide for conscientious objection 

to a p articular war. In their November, 1968 pastoral letter, the American Catholic 

bishops urged a modification of the Selective Service Act to allow for selective 

conscientious objection. They reaffirmed this position in their October 21, 1971 

pastoral letter. Should we punish those young men whose conscientious objection 

to the Vietnam War does n ot extend to all wars?

Thirdly, the dislocation of their lives has been a high enough price for these 

young men to pay for the ir decision. Their flight from the United States has 

separated them from family, friends and career opportu nities in their native 

land.

Fou rthly, there are historical precedents for the gran ting of such an amnesty. 

Among the 37 pardons in American history is the 1795 procla mation by President 

George Washington of “a full, free a nd entire pardon ” to all persons who participated in the Whisky Rebellion a year earlier in Pennsylvania.

On Christmas Day, 1868, President Andrew Johnson granted an unconditional 

amn esty to “all persons engaged in the late rebellion” (Civil War).

If rebellion against the United States Government is pardonable, it would 

seem th at refusal to fight in a foreign war is pardonable.

An unconditional amnesty would be eminently consistent with the basic 

Christian concern for reconciliation. To my mind, the disaffection of so many 

young Americans for their government (I am not referring only to the draft 

resisters and military deserters) has been one of the saddest products of the 

war. An unconditional amnesty would do much to regain the respect of our 

young people for their government. It would be a sign to them t ha t their governmen t has a heart, th at it stan ds for the life and liberty of its citizens and not 

just for the death of its “enemies”, an d th at it does not claim political and moral 

infallibility.

An unconditional amnesty would hopefully be met by a spirit of forgiveness 

in those who have been morally opposed to tne war, some to the p oint of calling 

for war crime trials. An attempt by the one side to separate the tru ly conscientious objector from the coward or by the other side to fix blame for the Vietnam 

Trag edy on certain individuals will only tea r us furthe r apart. I thin k at this 

point we need to have a spirit of reconciliation, of forgiveness, on both sides.

Wha tever your position on amnesty is or will be, I would hope th at it was or 

will be preceded by the serious tho ught th at the question deserves.

Massapequa Park, N.Y.

(Sp4c. Kim M. Diliberto, 124-40-5964, Combat Medic., Americal Div., K.I.A., 

Vietnam, Aug. 17, 1969).

Dear Mr. Dixo n: As the parents of the above deceased, we feel th at his 

dea th was in vain.

Some young men like our own son will never come home. Others have return ed 

sha ttered ; physically, mentally, or spiritually. Those Americans in exile, prison 

or underground, who refused to participate in an immoral and illegal war are 

also victims of the Vietnam tragedy.

We suppo rt a total Amnesty for all War Resisters.

Respectfully,

D om inic D il ib ero. 

U rs ul a D il ib erto.
721

______________________________________________________ ^ 7

The Case for Amnesty

AMNESTY: SO ME TH ING DECENT FOR A

CHANGE / Ramsey Clark

THE O NLY TRUE HO NO R / Louise Ransom

THE POLITICS OF AMNESTY / Carl Rogers

AMERICANS FOR AMNESTY / A National

Campaign
722

A Brief For Amnesty:

Something Decent For a Change

by Ram sey Clark

The war in Indochina leaves our nation divided 

and troubled. For many, believing we have found 

peace with honor is essential to self-respect. For 

others, the dishonor, self-inflicted by our 

violence, will require generations of service to 

humanity if we are to redeem our character. The 

war has left a heritage of hate, doubt, grief, fear 

and anguish.

Few experiences in our history have so tortured 

the American soul. Our denial of the common 

humanity of the Indochinese, our use of 

technology against life there, have raised 

profound questions of our purposes as a nation 

and whether we intend justice.

Among the people of Southeast Asia, over two 

million have been killed. All have suffered. The 

war has been the single most significant fact in the 

life of everyone. Nature herself has been ravaged.

More then 50,000 American men have lost their 

lives to the war. Still greater numbers have lost 

their health and wholeness. Hundreds spent 

months or years in foreign prisons. Several million 

others spent years of their lives in a military 

pursuit they did not choose, and often did not 

believe in. The nation, as a whole, has given an 

enormous amount of its energy and resources, 

diverted from the urgent needs of life: food, 

health, knowledge, labor, adequate housing, 

liveable cities

The war leaves another enormous group of 

casualties: young Americans forced to choose 

between obedience to the Military Selective 

Service Act and the drastic consequences of 

failing to do so. For many who chose military 

service the conflict came later, leading to 

desertion or a discharge less than honorable. 

Except for the war, none of these young men 

would have been confronted with this necessity to 

choose that brought them into conflict with their 

government. However we feel about their actions, 

we should not assume their course has been easy 

for them, their families, or their friends. They 

have borne a full measure of grief, hardship, and 

suffering. It continues until this moment and— 

even if assuaged by amnesty—will continue until 

death. The war is the single most significant fact 

in their lives.

More than 50,000 young men stand charged or 

convicted of violating the draft laws. Some 7,500 

are felons because of their conviction. Another 

5,700 are under indictment. Nearly 40,000 others 

have been referred to the U.S. Department of 

Justice for prosecution.

We do not know how many young men refused 

to register for the draft. The Bureau of the Census 

estimates that ten percent of those who became 

18 years of age in 1972 did not register. If so, then 

in a single year several hundred thousand violated 

the Selective Service Act. Extend this through the 

years of our longest war and the result is several 

million young men wondering whether application for a job or being stopped by the police 

for jaywalking, will reveal their status and result 

in a prison sentence.

A half million or more in the military went 

AWOL or deserted in the years of the Indochina 

war. While most returned, many to face courtsmartial and many to be discharged dishonorably, 

more than 30,000 remain "at large,” according to 

Pentagon statistics.

Over 450,000 persons have been separated from 

the service with discharges less than honorable. 

Many who received less than honorable 

discharges served two, three or more years in the 

military, but lose virtually all federal and state 

veterans' benefits, including educational, health 

and employment preference benefits. Many of 

these discharges are not based on so much as a 

charge of serious crime, but arise from unsubstantiated allegations of conduct such as 

homosexuality, failure to pay debts and drug 

abuse. The sense of justice and the effect of such 

discharges are shown dramatically by the veteran 

who became addicted to heroin in Vietnam. He 

has been barred from military health benefits and 

from V.A. treatm ent, while his discharge deprives 

him of employment preferences and deeply 

prejudices his chances for a job or unemployment 

benefits. Above all, he is branded for life.

Under the direct coercion of law, these young 

men became victims of discrimination by 

classification clerks, draft boards, commanding 

officers, and courts-martial before whom they 

stood, often uncounseled and uninformed of 

their rights. They suffer a stigma that greatly 

diminishes their chance to hold a job, to live 

normal lives, to make a contribution. We should 

ask what this accomplishes, and why a free 

democratic society vests such arbitrary power in 

the military to blight so needlessly the lives of 

those it finds unacceptable.

Today, thousands of young Americans who 

have violated the law of their land live in exile, 

unwelcome by the Lady in the Harbor whose 

torch once burned for the poor and oppressed of 

all lands. More than 20,000 have obtained per-
723

manent legal status in Canada, with perhaps as 

many there without such status. Most live, furtively, here in America; lives of quiet desperation.

While these young people were refusing to 

register, resisting induction, deserting from the 

service, and receiving less than honorable 

discharges, millions of young men in their age 

group, with the privileges of wealth, knowledge, 

power, and opportunity were evading military 

service. Famous, physically strong professional 

football players and affluent young men who 

"knew the right doctors” received medical 

deferments. For several years college campuses 

offered haven to young men often beyond their 

academic interest. Some with no prior or per ­

manent intention to teach, were able to use this 

occupation as an escape from military service. 

National Guard ranks and reserve units of the 

military services were swelled by young men 

avoiding the draft and the war. Of the draft-age 

men, numbering in the tens of millions, most were 

not directly affected, while chance combined with 

disadvantage to place a million or so others in 

direct conflict with the government and to deeply 

scar their lives.

Still, there is a rage in many American hearts 

against persons who resisted the draft and the 

military. The causes given for that rage should be 

examined and tested against our concept of 

justice.

Those who invoke patriotism to oppose amnesty for war resisters fail to understand our 

history and philosophy of government. Many of 

our greatest Presidents, unquestioned patriots, 

have granted amnesty. A free democratic society 

does not seek blind service, but rather calls upon 

its people continually to question that which it is 

considering and that which it does. It fosters free 

speech and protects the right to dissent as 

essential tools for the discovery of truth. It does 

not compel conduct by force or fear, but seeks 

support by reason and commitment to its purposes.

Those patriots who say if we grant amnesty, we 

will not be able to defend ourselves in the future, 

have lost faith in America. How long can armies 

raised by fear and force win wars? They see our 

young men as too selfish or unconcerned to fight 

for their country, unless forced to do so. A nation 

reduced to such low esteem in the hearts of its 

people will not long endure. This is not America.

Those who argue that the young men who did 

not enter or serve the military do not love their 

country, have failed their civic duty and thereby 

lose claim to the nation's blessings, do not understand love or duty. People who love their 

country will conceive it as their highest and most 

constant duty to avoid ever having to choose

between their country and justice. We must strive 

to make our country just. Indeed, its spirit is our 

country; this land is merely where we seek to 

create a hospitable home for justice. Those who 

refuse military sevice live here by right equal to 

ours.

Those who say we should punish these young 

men because they are cowards, do not understand 

the nature of courage and cowardice. For the 

individual opposed to war, it has usually taken far 

more courage not to serve than to have done what 

was expected, what avoided the risk of prison and 

social ostracism, what most of their peers were 

doing. And in addition, suppose some were 

cowards, is it not fundamentally wrong to punish 

cowardice? Is not cowardice itself punishment 

enough? What kind of country punishes cowards? 

It is their country, too.

Some say it is unfair to those who obeyed the 

law, to those who sacrificed, and most of all to 

those who died, if men who refused to serve in the 

military go unpunished. First, we should hope 

those who serve do so because they believe it 

right. Having the strength of their conviction, they 

will not want to punish those who disagree. If they 

participated against their will, it was the government that forced them, not those who resisted. No 

one who failed to join the military forced another 

to take his place. Each made his choice, and left it 

for others to do the same. To punish further those 

who did not perform their military service cannot 

restore the years spent in the military; cannot heal 

the wounded, cannot give life to those who died.

The greatest dishonor we could inflict on the 

memory of the men who fought and died for what 

they believed was the American dream would be 

to abandon or diminish its glory. The American 

dream is freedom, equality, justice and peace 

everlasting. It is strong, unafraid, and loving. It is 

not mean in spirit. It does not inflict suffering or 

deny the chance for fulfillment to any person. It 

believes in life and the pursuit of happiness.

Amnesty is a legal act by which prior convictions are nullified and past violations of law are 

erased and henceforth cannot be prosecuted. 

Amnesty does not forgive, condemn or condone, 

it simply forgets; wipes clean the slate so that the 

nation can go forward from that time.

The United States Constitution in Article II, 

Section 2, delegates plenary power to the 

President to grant amnesty under the reprieves 

and pardons clause. Within that power the 

President may restore rights, and prevent or set 

aside convictions in whole or in part to individuals 

or classes.

Congress also has full power to grant amnesty 

in whole or in part to individuals or classes by 

legislative act. Just as Congress can repeal a law, it 

can provide against further prosecutions and 

even compensate for past convictions.
724

Thus amnesty is an act of law contemplated by 

the Founding Fathers as a desirable power of 

government and delegated to the Congress and 

the President. It has been generally recognized as 

an essential technique for achieving justice under 

the rule of law. Amnesty is among the noblest 

uses of the law because its purpose is generous. It 

promises the chance to humanely refine the 

application of law to assure justice. It reminds us 

that the law is not a vulture picking on the bones 

of the despised poor. The law can and should 

always be the will of the people, sensitive, gentle, 

loving. Amnesty reflects a Constitutional conception of compassion.

Presidents—including George Washington, 

John Adams, Thomas Jefferson, Andrew Jackson, 

Abraham Lincoln, Andrew Johnson, Ulysses 

Grant, Theodore Roosevelt, Calvin Coolidge, and 

Harry Trum an—have granted amnesties. Often 

they acted in hours of fear and hatred. While 

there has not yet been a universal, unconditional 

amnesty, the spirit guiding those granted stretched toward all. The desire to heal wounds, to 

unite peoples, to turn from the past toward the 

future, to prevent suffering that a soothing law 

can alleviate, has motivated amnesty. If earlier 

amnesties rationed justice, still they recognized 

and sought it.

Many do not oppose all amnesty, but believe 

only those who give equivalent time or were 

motivated solely by conscience should receive its 

benefits.

Some favor amnesty only for those who agree 

to perform a public work for a period of time. 

Whatever the merit of such alternative service 

offered those once facing induction, it is 

meaningless years after the choice of military 

service was forced. It will not be accepted by 

many. Their lives have been disrupted and altered 

already. Years have been lost. Alternative service 

also implies the necessity for atonement. Most 

who resisted feel this would compel them to deny 

the moral rightness of their acts even in the face 

of overwhelming national opinion that the war 

was wrong. This they will not do. Furthe r, the 

probability of a constructive, humane alternative 

service being developed in the light of past experience is remote. Too many have learned with 

Dostoevski that the cruelest punishment is to be 

forced to work at a meaningless task. Make-work 

is the last thing America needs. We need 

desperately to get on with healing the nation’s 

wounds and restoring dignity to the lives of all 

people.

Some want a judicial type review of each case 

with amnesty only for those who acted from 

conscientious conviction that all war is wrong, or 

that this war was wrong. But is it not inherently 

discriminatory to grant amnesty to a young man 

raised in a religious family who opposes war, and

deny it to a ghetto black born in the midst of 

America’s violence, who found himself in 

Vietnam with an M-16 rifle in his hand and 

discovered he did not want to shoot those little 

yellow-skinned people? Creation of review 

boards to examine cases on an individual basis is 

not a feasible alternative. Delays, inequities and 

discrimination would necessarily result. People 

will not voluntarily submit to custody to wait for 

years while courts review thousands of cases to 

learn whether they are going to prison, or not. 

Nor can we determine motive. It resides exclusively within a person. It has been irrelevant 

in our criminal law. We should not determine 

motive if we could. We should be judged by our 

acts. It is a cruel and meaningless game by which 

we avoid facing up to our need for compassion.

Finally, there are three overwhelming reasons 

why America needs to grant amnesty—full, 

generous, absolute, and without condition—to 

everyone who failed to register, or report, who 

deserted or received a less than honorable 

discharge.

Amnesty will bring us together. If we do not 

grant it, thousands of American families will live 

out their lives separated from their sons. 

Emotionally and physically, mothers, fathers, 

brothers, sisters, relatives and friends will be 

unable to live together. Beyond this, whole 

segments of our society will suffocate in the 

anguish of the past that cannot be overcome until 

we put it behind us by forgetting the violations 

that divide us. Then, hundreds of thousands can 

come out into the light, breathe the air freely and 

participate fully in an open society.

Those who believe the war was wrong, those 

who believe it right and those who believe in their 

country, right or wrong, must summon the 

strength to rejec t the application of government 

sanctions so we can proceed to solve the 

problems that face us. We must not permit 

weakness, fear and hatred to so overwhelm us 

that we will not put aside this chapter in our 

history in order to unite the nation and begin 

again for a truer America.

Amnesty will teach us the compassionate use of 

law. Is there not enough suffering beyond our 

control that we should purposely and needlessly 

add to the grief of our people? Amnesty is a 

single, simple, cost-free act of democratic will. All 

that is required is that we want it. Are we a people 

who take pleasure from the suffering of others? 

The moral necessities of the nation urgently call 

for amnesty. Through it, the law becomes moral 

purpose again, ennobling, bringing out the best in 

people. We become masters of our fate: our law, 

humane, striving for justice and the alleviation of 

suffering. Law is not a dead hand imposed by
725

some omniscient power.lt is meant to be the will 

of the people. It can be an effective instrument 

for social change. In a mass, urban, 

technologically advanced society, it must be a 

major means of providing the essential qualities 

of life, health, education, jobs, houses, the 

preservation of the environment, the freedom and 

security necessary to the dignity of the individual 

and peace on earth. Amnesty can show us—if we 

will disenthrall ourselves and grant it—how law 

serves rather than subjects.

Amnesty could help lead us toward peace. To 

the world community, it says America is 

unafraid. It seeks to do right and concedes the 

possibility that it may err. It will try to understand 

its exiled sons’ resistance to war. Their voices will 

join the voices of the nation again. It will not bar 

from its midst those who refused to fight. It will 

hear them again, live with them again, love them 

again.

One reason President Nixon opposes amnesty is 

he fears it implies the war was wrong. I believe the 

war was wrong and we should do all we can to 

stop murdering with our bombers forever. But 

amnesty does not mean all this. It only means we 

are willing to try to live together, to understand 

each other, to learn.

The voices of many young Americans living in 

exile are angry. The President is angry. Neither 

should control our conduct. We must act from 

reason. A President who brings a band of outlaws 

to the White House and other positions of power 

and speaks words of praise for men such as 

Haldethan and Ehrlichman while opposing 

amnesty, will not lead us to truth. Living together 

might. From those who evaded and deserted, we 

can hope to learn why and perhaps see that war is 

death and peace is life.

Then too, in the midst of this Slough of 

Despond, where wars and Watergate have mired 

us down, to restore our faith we desperately need 

to do something decent for a change. Amnesty is 

a decent thing to do.
726

The O nly True Honor

by Louise B Ransom

It is not possible to deal with the subject of amnesty for 

500,000 young Americans witho ut first dealing with the 

subject of the Vietnam War.

The war and I have endured a lasting relationship since my 

oldest son, M ike, was killed near My Lai five years ago this 

spring He arrived at his first assignment—a new 2nd 

Lieutenant infantry platoon leader—on the very day of the 

massacre, March 16, 1968. After that unspeakable atro city 

committed by our own American troops, who could blame the 

embittered South Vietnamese farmer who set the mine that 

killed Mike such a few weeks later?

Had he been alive in November, 1968, he would have 

rejoiced that Lyndon Johnson had been deposed He once 

wrote: "I did hear Johnson's speech of de-escalation and noncandidacy and thought it the best of his career. It created in 

me a great sense of hope that this obscenity over here would 

end shortly " How he would have welcomed the new President 

with his shining promises to end the war and bring us together.

But where are we now, five long years later? We have a 

cease-fire and "peace with hon or," but we have not ceased 

firing, people are still dying, and honor is nowhere to be 

found

We can look back in horror and shame th at the most advanced technological nation in the world was virtua lly annihilating—in the name of free dom —several primitive 

agricultural countries to preserve the thrones of such leaders 

as Nguyen Van Thieu and Lon Nol. The ultimate anguish for 

me is that my own son lost his life in the perpetration of such 

shame

And the shame grows as the perfidy of our leaders is 

revealed through the deceptions detailed in the Pentagon 

Papers and the disillusioning reality o f Watergate This painful 

knowledge clarifies for me the action of those men who would 

not permit the ir bodies to be used, as Mike's was, to continue 

the madness. Their "crime"? They refused to obey leaders 

whom they could neither believe nor trust.

I share bitte r tears with all of those who are victim s of this 

war, particularly the 57,000 mothers whose sons will never 

return We mothers weep also for the thousands of our sons 

who are maimed for life, wounded in body and spirit There 

are, o f course, not enough tears in the whole world for the 

mothers in Indochina. Creating half a million more war vic ­

tims because of intransigence to amnesty is unbearable to 

contemplate

The deepest tragedy for me, too deep for tears, comes from 

despair over what we have become as a nation. What are our 

true values? What does it mean when our heroes are 

professional warriors, when the bulk of our treasure is spent 

for instruments of death rather than to improve the quality of 

life, when the leaders we choose to govern us value power 

above people?

How are we parents, conscious of our American he rit ag efounded in dissent and dedicated to freedom—to raise our 

children to be proud of their co untry in such a climate? Have 

we not placed in (eopardy the very birthright of their whole 

generation t o life, liberty, and the pursuit of happiness?

How can I help my five remaining sons to find some positive 

meaning in the death of their brother?

My husband and I have long faced the di fficul t tru th that 

there was no gain for this country from our son's death His life 

was wasted by his own government and nothing we do can 

alter that

But the President, in an effort to find value where there is 

none, has said: "Let us not dishonor those who served their

country by granting amnesty to those wh o deserted America." 

In other words, if amnesty is not granted, the death becomes 

honorable I must disagree

The only way we can dishonor those w ho died is to learn 

nothing from the m—to repeat the past and continue our 

present course of action

We are a divided, corrupted, and bloodstained nation A 

universal and unconditional amnesty for men w ho refused to 

fight in the war—the ghastly symbol of all that is w ro ngmight just be the very element tha t could help to heal us.

At the very least, it could reconcile parents and sons. It 

could also restore our pride in ourselves as a compassionate 

people It could revive our vision of devotion to social justice 

and renew our self-confidence by recognizing freedom of 

conscience for all

Let us, therefore, join hands,—rich and poor, black and 

white, parents and c hild ren —united in our faith in the healing 

power of amnesty, and determined to achieve it

If somehow all the sorrow, and all the tears, and the killing 

can help us to become a better people, perhaps then, and only 

then, can we say that these d eaths—these sacrifices—have 

been redeemed and will have had a positive meaning for us as 

Americans—the only true honor.

The young dead soldiers do 

not speak.

Nevertheless, they are heard 

in the still houses: who has 

not heard them?

They have a silence that speaks 

for them at night and when 

the clock counts.

They say: We were young. We 

have died. Remember us.

They say: We have done what 

we could but until it is 

finished it is not done.

They say: We have given our 

lives but until it is finished 

no one can know what our 

lives gave.

They say: Our deaths are not 

ours; they are yours, they 

will mean what you make 

them.

They say: Whether our lives 

and our deaths were for 

peace and a new hope or for 

nothing we cannot say; it is 

you who must say this.

They say: We leave you our 

deaths. Give them their 

meaning.

We were young, they say. We 

have died. Remember us.

—Archibald MacLeish

235 East Otfc S fr w f, Naw York, N. Y. 10 0,7 (2121 371-7000
727

■jjj swtoss (a? acaaagTO

by Carl D. Rogers

(Carl Rogers was a Chaplain's Assistant in

Vietnam with the Army's 1st Logistical Command.

He was a Co-founder of the Vietnam Veterans

Against The War in 1967.)

One W or d o f Caution

While the return of the POW’s signaled the end 

of the war for many Americans, it is clear that 

their return did not mean the end of the divisive 

issue, Vietnam. Nor did the removal of the 

remaining troops in Vietnam really mean, as we 

were told, that the war was over, that Americans 

could let Vietnam fade, at last, from their 

memory.

Although the war—along with so much else— 

has been overshadowed by Watergate, our intervention in Indochina continues, and tens of 

thousands of political prisoners remain in Saigon 

jails. As we begin to talk about amnesty let us 

acknowledge the existence of a “post-war" atmosphere, created by the release of our POW's 

and the withdrawal of American fighting men, but 

let us not talk of amnesty as a post-war issue until 

there is no more war.

And let us be aware of the tremendous task 

before us in educating the American people about 

these other victims of the war: the young men 

who refused to wage it. Though the public may 

well believe the war is over, that has not seemed 

to make them more open to amnesty, at least an 

amnesty as presented to them so far. In fact, 

pollster Lou Harris’ surveys indicate a hardening 

of attitudes on amnesty for war resisters over the 

past two years.

Harris Polls Fav or Oppose Not Sure

June, 1972 38 53 9

August, 1972 27 60 13

March, 1973 24 67 9

A New York radio station (WNEW) sampled 

sentiment in the greater metropolitan area and 

found 79 percent saying "No" to the question of 

whether “some sort of amnesty” should be 

granted to those who avoided the draft by leaving 

the country. Amnesty for deserters brought an 

even higher number of “No’s.”

When the issue is spelled out or dramatized, 

however, as in the case of a recent hour-long TV 

program sponsored by the National Council of

Churches, the response is quite different. Viewers 

reactions to the courtroom drama about a selfexiled resister ("Duty Bound”) showed 70 percent 

in favor of amnesty, according to the tabulation of 

over 9,000 "jury verdicts” mailed to the Council’s 

Broadcasting and Film Commission.

Our job is quite clear. So are the battle lines 

drawn by the President.

Q. Mr. President, do you have anything 

specifically in mind to help heal the wounds in 

this country, the divisions over the war, and 

specifically, anything down the road much farther 

in terms of amnesty?

A. W ell, it takes two to heal wounds, and I must

say,,when I see that the most vigorous criticism

or, shall we say, the least pleasure out ol the

peace agreem ent comes from those who were the

most outspo ken advocates of peace at any price,

it makes one realize wh eth er some want the

wounds healed.

Most of the “peace community" desperately 

want to heal the wounds of this war, but many of 

the war resisters themselves see the opportunity 

now to make their political act come alive. The 

issue of amnesty, they say, was raised prematurely 

by the media—NEWSWEEK magazine had a 

cover story on the subject in January, 1972, a full 

year before the signing of an agreement designed 

to end the war—but the war exiles are ready now 

for the confrontation which they believe the 

President has created. Hear one, a member of the 

Union of American Exiles in Britain:

Nixon has raised it as a political issue 

and we're going to throw it back as a 

political issue. If he doesn't let us 

back, then he's going to have 

thousands of us making noise all over 

the world. We’ll raise the issue.

So far people haven't paid much attention to us, because they’ve always 

said, "Oh, well, wait till the war is over, 

you’ll get to go home." Virtually 

everybody believed that. But I don’t.

The only way we’ll get to go home is if 

we fight like hell for it.
728

Now, as far as amnesty Is conce rned, I have 

stated my views, and those views remain exactly 

the same. The war is over. Many Americans paid 

a very high price to serve their country, some with 

their lives, some as prisoners of war for as long as 

six to seven yea n, and, of co un e, 2*/> million, 2 Io 3 yean out of their lives, serving in a 

country far away in a war that they realize had 

very little support among the so-called better 

people, in the media and the intellectual circles, 

and the rest, which had very little support, certainly, among some elements of the Congress, 

particularly the United States Senate, but which 

fortunately did have support among a majority of 

the American people . , .

The Early View From Capitol Hill

Although the President often felt little support 

for his war policies from Congress, he is not yet 

experiencing that problem on the amnesty issue. 

Only three Representatives have been willing to 

sponsor legislation calling for universal, unco nd ition al am nesty . One of the m. 

Congresswoman Bella Abzug, states her position 

quite simply: “How can we implore the Vietnamese to achieve reconciliation if we cannot 

ourselves?" Most of her colleagues in both Houses 

haven't thought it quite that easy to deal with.

A recent UPI survey of the Senate showed 

almost total opposition to unconditional amnesty. 

Only one Senator, Mike Gravel of Alaska, 

publicly supports an amnesty without penalities 

or conditions. The UPI report said another 

"Democratic Northwest Senator, who asked not 

to be identified, favors amnesty without strings.”

"Whatever the Senate may do, it will not come 

soon,” said Michigan's Philip A. Hart. "Before it is 

over, we will probably have reason to regret that 

amnesty will have been so long delayed for those 

who were motivated by conscience, not 

cowardice, and driven by moral con cern, not selfinterest."

But from the othe r side of the aisle—and the 

issue—came views like those of Senator Henry 

Bellmon, Republican from Oklahoma: “I have no 

sympathy with the cowardly young men who 

leave their country when a war starts and then try 

to come back in when the war is over." And from 

Senator Alan Bible of Nevada: “It would be 

unconscionable to grant general amnesty to those 

who shirked their responsibility under the law."

Whether the revelations of the Watergate 

hearings will have any influence on the Senators’

amnesty positions in the future remains to be 

seen, but their present attitudes so far give little 

hope for legislation.

“As far as I’m concerned, they can stay there,” 

said Assistant Senate Democratic Leader Robert 

C. Byrd of West Virginia,” and, adds Republican 

Senator William B. Saxbe of Ohio, *1 think we are 

well rid of them. We ought to let them go."

Senate GOP leader Hugh Scott believes that as 

“the months and years pass," there may be 

“exceptional circumstances" by which amnesty 

cases can be treated individually. “For example,” 

says Scott, "suppose an evader had terminal 

cancer? Would you deny him the right to come 

home to die?”

Senator Mark Hatfield, a long-time dove, says 

he must deal with the unfortunate fact that 

"amnesty at this time is a political impossibility.” 

Accordingly, he has not introduced any 

legislation to grant amnesty and does not anticipate any forthcoming from any other Senator 

"unless and until substantial public support can be 

developed for such legislation."

Senator George McGovern, who says he favors 

unconditional amnesty "in principle,” thinks the 

pressure has to be applied on the White House, 

although at a press conference in mid-February 

he was unwilling to restate his differences with the 

President on the question. “I’m not going to have 

much to say about that,” he said. "If it comes, it 

will have to be by executive order. There's not 

sufficient strength in Congress to force the 

President’s hand."

Who Needs Amnesty?

He may not yet fit the President's so-called 

better people label—his father surely does—but 

James Reston, Jr. understands the politics of 

amnesty. He has written a book that focuses on 

one deserter /The Am nesty of John David

Herndon), a story likely to evoke compassion 

from even the most hawkish of readers, but 

Reston's purpose is not to seek a humanitarian 

response on the issue of amnesty—or even a 

reconciliation between generations, which he sees 

as one reason for amnesty. "The real issue,” he 

concludes," is the matter of responsibility for 

what American involvement has brought to the 

people of Indochina, and what it has done to 

America as a nation. If this country can face the 

evidence of the past seven years without 

avoidance or excuse, if it can recognize what we 

have become as a result and set about to reclaim 

our heritage, if it can see the necessity to attend to 

all the victims of the war in a spirit of obligation, 

then a universal amnesty for war resistance can 

come easily, and an end to a long era of 

recrimination can come early."
729

John David Herndon, the son of an Appalachian 

family, a wounded and decorated Sergeant, 

deserted from the Army in Europe to avoid a 

second tour of duty in Vietnam. He may not have 

been able to fully grasp the political ramifications 

of his return from two and one-half years of exile 

in France, but others, thanks to Reston, can 

better understand the men like John David 

Herndon. His instincts, like so many other 

deserters, were always good; his feelings unmistakable:

On Mme. Binh—"I went over to see 

her with Mary Richardson of the Black 

Caucus. Mary and Mme. Binh did 

most of the talking. Mme. Binh was 

very, very friendly. She’s a very, very 

smart woman. They discussed black 

people in general: How they were 

discriminated against in America.

Mme Binh agreed. Black people were 

just like Vietnamese people. Anyhow, 

that's the conclusion they come to and 

everyone got an NLF pin and a ring, 

and that was about the extent of the 

conversation.”

On amnesty—“I am not going back 

asking the country for forgiveness. I 

have done what I think is right. That 

has been refusing to participate 

further in the war in Vietnam. I was in 

Vietnam. I was wounded in Vietnam. I 

refused to go back a second time after 

I had been there 15 months. I would go 

back to Vietnam voluntarily, if there 

were some way I could help the people 

without killing the people. I ask the 

American people to grant universal 

amnesty for people like me opposed to 

the war in Vietnam who are now in 

exile.”

We cannot provide forgiveness for them, those 

who served paid their price, those who deserted 

must pay their price, and the price is not a junket 

in the Peace Corps, or something like that, as 

some have suggested. The price is a criminal 

penalty for disobeying the laws of the United 

Slates. If they want to return to the United States 

they must pay the penalty. If they don't want to 

return, they are certainly welcome to stay in any 

country that welcomes them.

“A desire for freedom was the first 

impulse which spurred most men to 

Canada. This was an honest motive, 

and in keeping with Am erica 's 

traditions. If a young man accepted 

the draft and went into the service he 

lost his freedom for a reason he 

couldn't justify; he might also lose a 

limb or even his life; and to stay in the 

U.S. and go to jail or to go underground would cost him his freedom 

as well. In this sense then —searching 

for fre ed om , running tow ard

something rather than running away— 

going to Canada was a positive act.”

—The New Exiles

A positive act, yet they were derogatorily called 

evaders and draft dodgers, when, in fact, those 

who really evaded and dodged the draft were men 

like football hero Joe Namath, who managed to 

“beat the system”—in this case the Selective 

Service System, and in Namath’s case, getting out 

with a “trick knee .” Many of the men who went to 

Canada could have dishonestly evaded the draft, 

too, but they chose, instead, to make an important personal statement by their act, a 

statement in opposition to the war. They were not 

draft evaders and draft dodgers, they were draft 

resisters.

Many are America’s loss. Especially in Canada, 

many have made a success of their lives in exile— 

people like Tom Hathaway, heir to the shirt 

fortune, musician, former student at Toronto ’s 

Royal Conservatory of Music; Bruce Garside and 

his wife, both with doctorate s and professors of 

philosophy; Ross Hazel, photographer par excellence. There are, as well, thousands of 

others—doctors, artists, writers, photographers, 

poets, musicians, skilled laborers, and craftsmen. I met a number of former Peace Corpsmen 

who were drafted following two years service in 

far corners of the world.

Perhaps fearing America wouldn’t want them 

back, these people have adopted Canada permanently as their home. But I am convinced most 

all would welcome the right to return when they 

wanted.

The Numbers Game

. . . There might be a tendency to say now, to 

those few hundreds who went to Canada or 

Sweden or someplace else, and chose to desert 

their country because they had a higher morality, 

we should now give them amnesty.

31-658 O - 74 ■ 48
730

Not since the Civil War have so many 

Americans needed amnesty—perhaps over a 

million if you count all the violators of civil and 

military law whose "records” resulted from warrelated protest in the Vietnam era. It may be 

impossible to know the exact numbers, but here is 

a “3-D Look at Who Needs Amnesty" we have 

prepared with some of the figures that can now be 

substantiated.

52,143+w ^R A F T RESISTERS

During the war in Indochina:

7,443 men were convicted by federal courts 

for violations of the Military Selective 

Service Act. These men are classified 

as felons. Some 3,666 were imprisoned 

with sentences that varied from less 

than a year to as long as five years. 

(Source: Administrative Office of the 

United States Courts)

Nearly 100,000 service personnel 

deserted p er year at the height of the 

war in Indochina. DoD desertion 

records which the Pentagon now says 

have been marked “Not To Be Used— 

Inaccurate” indicate that as of January 

1972, there were 134,479 deserters at 

large. (Source: DoD)

20,000 draft-age American men were 

admitted to Canada as “landed immigrants.” It is widely believed that for 

every "legal” exile in Canada one 

entered illegally as a “tourist” but 

remained beyond the expiration of his 

tourist permit. (Source: Canadian 

Department of Manpower & Immigration)

39,000 additional names of draft “violators" 

were referred to the Department of 

Jus tice for pros ec ution. (So urc e: 

Selective Service System)

5,700 others face “outstanding” indictments 

for draft violations. For them, further 

legal action is pending. (Source: 

Department of Justice)

? Unknown numbers of young men— 

believed to be in the thousands—never 

registered for the draft at all. They are 

not listed among these Selective 

Service or Justice Department figures, 

but are subject to prosecution in the 

event the government learns of their 

violation.

32,557 + 

32,557

i D

ESERTERS

Members of the Armed Forces are "at 

large" and listed as AWOL or 

“des er te rs ." The De pa rtm en t of 

Defense states that 2,525 are known to 

be in foreign countries, including less 

than 500 in Sweden, but they list only 

those people whose whereabouts have 

been determined through intelligence 

information. Most are underground or 

in Canada. Robert Musil (“The Truth 

About Deserters," THE NATION, 

April 16) points out: "Obviously, large 

numbers of deserters have been remiss 

in reporting changes in address.”

450,000 . D ischar ges less than

HONORABLE

450,000 Vietnam-era veterans were discharged 

with less than an Ho norab le 

Discharge. Most resulted from the 

decisions of over 550,000 Courts 

Martial, for the “crime" of going 

AWOL o r some othe r "offense” that 

would not be punishable in the civilian 

world, such as disrespect for an officer, conduct bringing discredit upon 

the Armed Forces, or the infamous 

catch-all of the Uniform Code of 

Military Justice: Article 134 which 

covered “all other acts prejudicial to 

good order and discipline." Only 

recently was this article ruled “unco ns tit utiona lly vagu e” by the 

Washingt on Co urt of Appeals . 

(Source: DoD)

? Unknown numbers of civilians whose

active opposition to the war brought 

them into conflict with the law.

534,700+AMERICANS IN NEED OF

UNIVERSAL, UNCONDITIONAL 

AMNESTY.
731

More Than Numbers

Whether it is “those few hundreds” in need of 

amnesty, as the President suggests, or hundreds of 

thousands as these figures indicate, without 

amnesty it's all the same in the end: youth lost, 

futures lost, lives full of fear, young people forced 

to survive by wits alone. These are the other 

victims of the Vietnam war—victims of a 

Selective Service System so selective that less 

than 8 percent of those subject to the law were 

ever inducted under it.

Perhaps the most victimized of all the war 

resisters, for whom we seek an amnesty, are the 

deserters. Let us look at four categories of these 

men as described by Roger Williams in The New

Exiles. Williams, himself an exile for six years, 

writes only of American war resisters in Canada, 

but I believe the descriptions apply to all 

deserters, regardless of when and where they 

were forced underground or into exile.

The first group Williams calls the organizers— 

those whose experiences in the military 

radicalized them and, in turn, who attem pted to 

politicize their fellow GI ’s. Some simply talked 

about the wrongness of the war or passed out 

literature about Vietnam. Others worked on GI 

newspapers (of which there were nearly 70 at one 

time), or they gathered at one of several GI 

coffeehouses that began springing up around 

military bases in 1967.

In the second category of deserters—which 

Williams says is by far the largest—are the nonactivists, those who simply object to war, or to 

being forced to fight an undeclared war. Through 

common sense this group of men came to know 

that the war in Vietnam was wrong. Theirs is a gut 

reaction to fighting and killing: “a feeling that one 

has to draw the line against the curtailment of 

freedom, and a knowledge that they could not 

take the brutality of the U.S. Army, the dehumanization, the loss of identity and what Dr. 

Peter Bourne, an orthopsychiatrist and de corated 

Vietnam veteran, calls the ‘mortification of the 

self."

The third category, perhaps 30 percent of the 

deserters, according to Williams, can be defined 

as being very young, very frightened, and very 

sad. They are the real American refugees who at 

seventeen, eighteen, or nineteen have been 

forced to run for their lives and begin a new life 

in a foreign country.

A group of concerned citizens and clergy, 

including Bob and Louise Ransom and myself, 

worked with the Committee for the Presidio 27 to 

provide public defense for some men in this 

category, including two who "deserted”—escaped 

is a better word—and went to Canada. Attorney

Terrence Hallinan was their key lawyer. Of these 

men he said:

Of course, you’ve got to understand 

that inability to adjust in terms of the 

society they come from and the nature 

of the Army and the war in Vietnam.

These are the children of America’s 

poor whites, a hidden class of people.

They are uneducated but not at all 

stupid. They may have come from 

loveless homes, but they can love. In 

peacetime they would never have been 

held in the Army, but because of the 

war—because the Army needs every 

body it can get—they couldn't be 

discharged. The war is really so unpopular among the GI’s that the Army 

senses that if it started giving these 

disc ha rges—CO, ps yc hi atric—the 

floodgates would open and thousands 

of men would try to get out. Since they 

can’t let them out, yet they can’t use 

them in the field, they fill stockades 

with them.

. Or,” adds, Williams, “the Army finds that 

they have deserted."

The fourth category of men who have deserted 

are the saddest of all, those dull young men, 

pe rhaps me ntall y de fic ient or em otionally 

disturbed, who end up in the Army for lack of 

anywhere else to go, often sent there by civil 

courts instead of to youth corre ction centers. 

Williams reminds the reader that included in this 

group were the dropouts of Defense Secretary 

McNamara's “Project 100,000” designed to 

"salvage" men considered unfit for military 

duty—draft rejects and substandard volunteers, 

most of whom McNamara thought could be 

educated and trained for productive military 

careers and productive roles in society. This 

project serves as a good example of why we feel 

amnesty should apply to all of the 450,000 service 

personnel with less than Honorable Discharges— 

even if they never uttered a word of protest about 

our involvement in Indochina. As Hallinan 

pointed out, the Army needed every body it 

could get, but these men wouldn't have been in 

the service had it not been for the war and for 

programs like McNamara's “Project 100,000.” 

Irving Greenberg, the director of the training 

effort, said the military has the advantage of 

giving high motivation. “In every learning 

situation—basic reading, general high school 

equivalency program or job training—the men 

can see instant reward or punishment that’s 

directly related to what they are learning,” he 

said.
732

Recently Ralph Nader released a 450-page 

report on Vietnam-era veterans that indicates 

these underprivileged youths never received the 

special training they were promised and ended up 

going into combat two to three times more often 

than other soldiers, reminding me of the oftrepeated warning from our NCO's in Basic 

Training: "There are two kinds of soldiers—the 

quick and the dead!"

The men in this group of deserters needed help, 

but the Army was neither able or willing to give it 

to them. So they were either driven to the 

stockade, to suicide, or into exile says Williams, if 

they happened to know that option. Nor did the 

Army ever discharge these men; they discharged 

themselves.

Williams, describes the efforts of groups like 

The American Deserters Committee in Montreal, 

who attempted to help as many of these men as 

possible, finding them Canadian psychiatrists, 

social workers, jobs—when possible—but, for the 

most part, little could be done. “They are truly 

lost, a whole mass of children driven to real or 

near madness, called insane while they attempt to 

choose sanity in the face of an insane reality. 

They represent the real American tragedy."

No w, I suppose, M r. Sheldon, that your question

with regard to amnesty may deal with the problem

of hea ling the wounds. C ertainly I have sympathy

for any ind ividual who has made a mis take. We

have all made mistakes. But also, Il is a rule of life ,

we all have to pay for our mistakes.

How They Feel

Many of the exiles have written home to friends 

and family that they felt good, content—free in 

Canada o r Sweden o r Paris or London—that they 

were glad to be where they were during this time 

of trouble . But few of them talked freely of the 

mental agony, the alienation, the loneliness, that 

they also experienced. They did not always write 

home about what it was like to try and pick up 

their careers (or even get work to survive) in a 

country they didn’t want to live in. They seldom 

wrote about what it was like to survive on little or 

no money for years on end, to be a poor immigrant, or worse, a refugee. These experiences 

have marked all of the resisters—admittedly, 

some more than others—but all have already paid 

a price for their decision. It seems ludicrous to 

assume that any of them would seriously consider 

the suggestion that they pay again if they want to 

come home.

James Reston, Jr. concurs: “Exile is penalty 

enough. It is self-imposed alternate service. For

this government to add an additional penalty 

would be a cowardly act, contemptuous of the 

past, unrelated to a new beginning, and one the 

exiles have made very clear they will not accept."

Reston hits on the reality of the amnesty issue 

in recounting a verbal exchange, not involving his 

book's su bject, John David Herndon, but his wife 

and Dean Rusk. It took place in the spring of 1972 

at Duke University:

“What do you want me to do?” Rusk asked, as 

Denise Reston pressed him on amnesty. “Say I ’m 

sorry? They were right and I was wrong'?”

“Tha t’s what universal amnesty is all abou t,” 

she said.

“Well you’re never going to hear that from me!" 

Rusk said furiously.

Probably not. “Yet at the present time the issue 

is turned on its head," says Reston. “Those who 

planned our involvement in Vietnam, who 

devised our inhumane concepts of devastation, 

and who executed the technological holocaust are 

walking free among us and many still hold 

positions of power. Few are asking if they deserve 

amnesty. Only for them would I advocate a 

conditional amnesty, the condition being they 

admit their mistakes."

The Prec edents Fo r Amnesty

The United States Constitution does not 

mention amnesty, but Article II, Section 2 does 

state that the President “shall have power to grant 

Reprieves and Pardons for Offenses against the 

United States, except in case of Impeachment." 

The power has been used 30 times since George 

Washington gave a general pardon to the 

Whiskey insurrectionists in 1795. (See “Amnesties 

in U.S. History,” page 4, AMERICAN REPORT 

amnesty supplement.)Legislation having a similar 

effect has also been passed seven times by 

Congress although never labeled an act of amnesty.

Abraham Lincoln's amnesty for soldiers of the 

Confederacy was cited by a pro-amnesty editorial 

in THE CHRISTIAN CENTURY (Nov. 24, 1971) 

as a "precedent for an act of amnesty today.” But 

as they wisely noted, President Nixon is not 

Honest Abe and appeals such as theirs tend to be 

“stigmatized as the crying of liberals and bleedinghearts.”

Assuming the President survives Watergate it 

becomes even more ironic that granting an 

amnesty provides him with an unequaled means 

of fulfilling his 1968 promise to being us together.

The President must be sensitive to the fact that 

various countries have granted post-war amnesties, too, both to their "enemies" and their own 

citizens alike. For example: France, Norway, 

Germany, Belgium, Japan, and the Netherlands
733

granted amnesties to persons engaged in compromising activities during World War II.

Early this year Czechoslovakia annou nced an 

amnesty for people who left the country illegally 

after the Soviet invasion of 1968, including large 

groups in the United States, Canada, Australia, 

and Western Europe.

Within 24 hours of the election of Australia's 

new labor government. Prime Minister Gough 

Whitlan granted a total amnesty to all 9,000 

Vietnam war draft resisters. This in a country that 

has often worshipped the military, and whose only 

national celebration is ANZAC (Australia-New 

Zealand Army Corps) Day, commemorating 

Australia’s role in two world wars.

As one final example the exiles often point out 

that Willie Brandt “deserted” his country during 

World War II and spent 14 years in Scandinavian 

exile. Today, of course, he is Prime Minister of 

West Germany.

But these precedents are of little consequence 

to the resisters unless they are matched by 

comparable action in Washington. Without 

amnesty they will be forced to eventually become 

citizens of other countries in order to have civil 

rights, including the right to travel. Among the 

exiles, passports are expiring and passport applications to the U.S. consulates in Canada, 

Britain, France, and Sweden are being denied. 

The 500 deserters in Sweden, for example, will 

remain stateless persons, trapped in a small 

country that speaks a difficult language.

Although they have been well cared for, I 

estimate that at least 80 percent of the men there 

do not wish to become Swedish citizens or spend 

the rest of their lives in Sweden. For the time 

being they are considered refugees admitted 

under a policy of humane asylum, but ultimately 

they want to secure their rights as human beings 

and to do that they must choose Swedish 

citizenship or wait for amnesty to restore their 

rights at home. “Why,” they ask, "should there be 

500 American prisoners of war in Sweden when 

the 500 American POW’s, who have participated 

in an illegal and immoral war, have returned from 

Hanoi?”

You victims of conscription!

You victims of the draft!

Mark well and act accordingly:

Where justice rules 

And morals prevail.

Each one is free to be a martyr 

Of his own ideals.

But no one shall be forced to die 

For the ideals of others!

For this is murder.

—Denis Diderot

As Roger Williams became involved with o ther 

American war resisters exiled in Canada it 

became apparent to him that although their 

protest against the United States—their "politics 

of anger and frustration”—fit into the anti 

category, the story when fully understood was 

very pro — optimistic, promising, “essentially 

a positive statement. There is nothing negative, 

nothing sad, nothing tragic about young men and 

women consciously choosing freedom over 

enslavement, a new country over prison, and life 

over death; and even though many Canadians, 

American reporters, and even older exiles feel a 

genuine sadness when they encounter an 18-yearold deserter or draft resister, at the root of this 

grief is the knowledge that the state of affairs in 

the United States today is such that men this 

young have had to flee—that the tragedy lies not 

with the fleeing but with what is being fled.”

Although he didn't say it when he wrote The

New Exiles, Williams now believes that perhaps 

amnesty really isn’t the issue at all. Agreeing with 

Reston he says: “The problem is that the U.S. 

must somehow, someday, repudiate the Vietnam 

War and the men who made it, after which the 

problem of amnesty no longer exists. The 

problem is that the war resisters prematurely 

repudiated the war and the warmakers.”

I doubt that our country will repudiate Vietnam 

for a long time to come. Instead, it may be that a 

majority of the people, under the flag-waving 

leadership of Mr. Nixon, will repudiate us, the 

anti-war veterans, the resisters, and those citizens 

considered to be liberal or left of center in 

American politics. Ironically then, we who opposed a war the American people did not vote for, 

and did not want, could still become the 

scapegoats for the Vietnam disaster.

Mr. Nixon has already engaged in what the St. 

Louis Post Dispatch called “the meanest kind of 

demagoguery" when speaking of the war resisters. 

With more of the same, amnesty could become an 

academic question.

We who grew up believing in America’s basic 

goodness have had those beliefs shattered and 

blown apart before our eyes in Vietnam (not to 

mention Watergate). But we have learned by this 

experience that our country is a nation of 

dichotomies. One side of the American character 

often displays a decency, a humanity, a fairness, 

seldom so widely exhibited in other lands. But 

often on the other side is arrogance, vindictiveness, and massive ignorance.

Exile has educated the war resisters as Vietnam 

educated us who fought there. Like the resisters, 

we are people altered by events, by history, war 

having made us into what we are not. T o take it a 

step further, war has perhaps made us something
734

better than we were. Few, if any, among us are 

leaders. Few have had political backgrounds. But 

we share among ourselves now—vets and exiles 

alike—a common "politics of experience,” 

making us determined to alter history as it has 

altered us. In that sense, we are now "political" 

and we are dangerous to the traditional polity of 

America. I think it was awareness of the 

radicalization process most Vietnam-era veterans 

and resisters have gone through that contributed 

to Watergate and drove the government to 

heavily infiltrate W AW with FBI and CID 

agents.

Althougn America is stuck with its anti-war 

veterans, the war resisters and those with less than 

Honorable Discharges quite simply may not be 

people to whom America wants to restore full 

legal and civil rights.

In a nation as divided as ours, amnesty is not 

likely to be decided soon, but America will have 

begun to find itself—will have begun to come to 

terms with the tragedy of Vietnam—and to extricate itself from a recent terrible past, if it can 

establish one form of military discharge and allow 

the war exiles to return as free citizens (at best, to 

welcome them home—like the POW's—as 

patriots.) Yet even that will only be a beginning.
735

NATIONAL CAMPAIGN

Millions of Americans actively opposed the war in Indochina. 

For hundreds of thousands of them their protest brought them into 

conflict with the law. Americans For Amnesty is working to obtain 

universal, unconditional amnesty that will restore their full legal 

and political rights.

We choose to focus our attention on three specific groups in need 

of amnesty— over half a million Americans victimized by their own 

government:

1. Those men who refused to cooperate with the Selective Service 

System and resisted the draft,

2. Those members of the military who have been charged with 

deserting the Armed Forces,

3. Those veterans who received less than an Honorable Discharge.

For all those resisters who have been incarcerated in civilian 

or military prisons (or are subject to prosecution); for those exiled 

because of their opposition to the war; and for all those with a less 

than Honorable Discharge, we seek universal, unconditional amnesty and 

a clearing of records, witiT:

NO alternative service 

NO other punitive measures

NO case-by-case judgments.

We are working both independently and in coalition with 

others in a national amnesty campaign—

TO EDUCATE AMERICANS ABOUT THE ISSUES involved in the 

amnesty debate.

TO PROVIDE INTERIM SERVICES for the families of those 

needing amnesty.

TO BUILD VISIBLE PUBLIC SUPPORT FOR AMNESTY in every 

community. ~

TO FOCUS CONCERN and political pressure to obtain amnesty.

235 East 49th Street. New York, N. Y. 10017 (2121 371-7080
736

T he Military Orde r of the World Wars,

Washington, D .C., March 19, 1974-

Hon. R obert W. Kas tenm eie r,

Committee on the Judiciary,

House of Representatives,

Washington, D.C .

Dear Mr. Chairm an: We would like to ava il ourselves of this opp ortuni ty to 

commend you for opening discussion for the Nation on this very difficult sub ject 

of amnes ty for dra ft evaders. The Mi litary Order of the World Wars opposes 

general amnesty. I enclose the most rece nt resolution passed by the Order in 

natio nal conv ention assembled.

We did not avail ourselves of the opp ortunity you offered to tes tify before your 

committee because we felt th at we could say noth ing more than what was said 

by the De fense Departme nt represen tativ e, with whom we concur in ever y detail.

It might be helpful to paraphrase our resolution. The ethical principles of our 

Order are the same as those of our Country. We believe in and subscribe to a 

higher order, along w ith most men of good will who are considering this problem. 

The real difficulty lies in how we support those higher principles. We believe that 

this Nat ion with its Bill of Rights offers the greatest hope for civilized man. We 

believe th at the history of our milita ry conduct, when it has been necessary to 

enga ge in war, reflects the humanita rianism of our people— as much as is possible 

when enga ging in the barbarism of war. We feel that the sur viv al of this Nat ion 

is a paramo unt consideration.

Th e burden of war as it has been condu cted up to now has falle n on the young. 

Generation afte r generation of young people in our Coun try have accepte d this 

responsibility and brou ght us to be the grea t Na tion that we are. Thu s it is a 

sacred du ty of citize nship to serve when our Co un try calls. To do otherwise even 

on hum anitarian grounds, does an inju stice to those who have served and those 

who will serve. Perhaps Alan Seeger said it best in his poem, “ Flanders Field .” 

It read:

to you we thro w the torch 

be yours to hold it high —

We c annot bring ourselves to feel that those men who lef t the cou ntry to avo id 

the tough decisions held the torch ve ry high nor are the y entitled to reenter. 

Th ey made their choice. Sur ely the y must hav e the courage to live with it.

Ve ry tru ly yours,

R obe rt N. Tyson,

Brigadier General, USA-R et.,

Chairman, Legislative Committee.

Enclosure.

R esolution No. 9. Oppo sition to General Amnesty for Draft Evaders

Whereas the fighting in Vietnam and Southeast Asia has changed its patt ern 

and some prisoners of w ar have been released and amn esty is now being advocate d 

by some for draft evaders and deserters; and

Whereas millions of young Americans have served honorab ly in the armed 

forces under estrem ely difficult conditions and many of these were wounded, 

injured or killed, or are still missing, the hard duty tha t the draft evaders and 

deserters avoided being performed by other you ng men who accepted their 

responsibility and duty to their country: Therefore be it

Resolved, Th at The Milita ry Order of the World Wars in Nationa l Con vent ion 

assembled, declares its opposition to any action , by the Congress of the Unit ed 

Sta tes or any other body or person, which would grant general amn esty to those 

who have unla wfully avoided mil itary service or have deserted therefrom.

Certified official, 10 Aug ust 1973.

A. R. Brownfiel d,

Brigadier General, USA-Ret.,

Chief of Staff.

Statement on Amnesty by David Wesley Brown, P rogram Secretary, 

Pris oner Visitation and Supp ort Committee

I am one of the many people who offered and requested to testify before House 

Jud iciary Subcommittee #3 hearings on a mnes ty, bu t for whom the Subcomm ittee 

had too little time. I made tha t offer and request because I am currently working 

as Program Secretary of Prisoners Visitation and Support Committe e, an or-
737

ganization whose thirty-six volunteers nationwide, and two National Visitors, 

visit war resisters in federal and military prisons. I am also an ex-GI and an 

ex-prisoner—one of those people whose past actions and future rights were subject 

to much debate in the recent oral testim ony before this Subcommittee.

Unfortunately , the Subcommittee heard testim ony from only two of us whom 

an amnesty—or lack of amnesty—would affect directly. Th at is why I have 

considered it extremely im portant to sub mit this written statem ent for the record. 

Amnesty is necessary partly because so many people refused for so long to listen 

to resister’s voices. I hope th at the dea rth of resisters allowed to testify on amnesty 

does not mean that this Subcommittee intends to close its ears as well.

I write primarily from my own experience as a GI war resister and military 

prisoner in 1966, 1967, and 1968. Though my experience was a mild one for those 

times, I faced constant intim idation from the moment I mentioned my newly 

crystallized conscientious objection. The sergeants and officers over me made 

every effort to dissuade me from pursuing the perfectly legal course of applying 

for discharge; when I persisted, they sought to water down my search for legal 

redress. In the end, I spent over sixteen months in the For t Dix stockade and the 

For t Leavenworth military prison, and received a Bad Conduct Discharge.

My experiences, and those of the war resisters with whom PVS has had initmate 

contact, dem onstrate th at a universal, unconditional amnesty would not merely 

wipe the legal slate clean for thousands of Americans who have been made to 

suffer for their war resistance. Because the conduct of government employees 

and agen ts was often illegal, and not seldom cruel; because discharge requests 

were illegally turned down, and induction orders illegally issued, forcing many 

to disobey the law in order to main tain the ir rights under the law; because lessthan-honorable discharges, stigmas for life, were the milita ry’s means of dealing 

with GIs who were troub led by the war, amnesty is for hund reds of thousands 

the first step by which the government can seek to right its own wrongs.

But I should begin by telling my story:

On May 17, 1966, I entered the army, becoming PVT -E1 David W. Brown, 

RAI 1797464. I was two days from my twenty-first birthday, and had gotten 

married four days before. Th at coming September, I would have begun my third 

year of college, afte r taking a year off and working as Welfare Director for the 

city ’s S alvation Army post.

The RA in my serial num ber indicates th at I enlisted; it does not indic ate th at 

I signed up under pressure of imminent induction. Since I had to go in, I enlisted 

to ensure t ha t I would serve as a chap lain’s assistant, for I at th at time intended 

to become a clergyman. At the time, I had no particu lar feelings about th e Vietnam 

War. I suppose I tho ught I should be supporting it, for I had re cently been shocked 

to come across an issue of I. F. Ston e’s Weekly, containing strong criticism of 

the war, in the home of a respected friend.

I recall also th at I had seriously considered whether I should file a conscientious 

objector claim with my dra ft board. Were my object merely to avoid service, 

I migh t have done so, for I was within a few m onths of reentering college; filing 

a claim would have created a delay, enabling me to regain my stud ent deferment. 

But I had concluded th at I was not a conscientious objector: though war is never 

a good thin g in itself, it appeared from history th at war had sometimes been 

necessary, and had achieved desirable ends. If my government told me I had 

to fight, then I had to fight.

Within two weeks after I enlisted, my beliefs changed radically. I had been, 

and continued to be a Christian, but I had believed before th at it was possible, 

and sometimes necessary, to serve God in the military. My first two weeks in 

the military, which included my introduction to Basic Com bat Training, convinced me th at being a soldier was incompatible w ith being a Christian. Perhaps 

I should have known before going in th at the purpose of Basic was to teach new 

GIs to kill, and to inculcate attitudes th at would make them willing to tak e 

human life. But I had been fooled by the popular image of Basic as a he-man 

version of Scout camp, and by phrases in recruiting lite rature abo ut learning to 

“fire a weapon” and “handle a bayonet.” The reality was more graphic: rifle targ ets 

were shaped like men, and trainees repeatedly shouted, “K ILL !” as they learned 

to “handle” the ir bayonets.

I could not believe that I should allow the murderous Spirit of the Bayon et 

to co-exist in my hea rt with the loving Spirit of God.

My doubts were not uncomm on; my decision was. I decided th at I would not 

train, even if it m ean t disobeying orders. I told my Platoon Guide, who told the 

Assistant Platoon Sergeant, who told the Platoon Sergeant, who came and talked 

with me. Our conversations went as many o ther such conversations between Ser-
738

gea nt a nd troubled GI have gone; he listened, trie d to ta lk me out of my decision, 

got angry when he failed, and concluded by poin ting o ut the window toward the 

stockade and shouting, “ We have a place for (derogatory epithet) like you— 

barbed wire city!”

SFC Palmer would have said he had counseled me; I say th at he argued with 

me, then thre atened and intimid ated me. Many other GIs would say the same 

about the “ counseling” they received—including many who did not pursue the ir 

beliefs in the way I did, bu t simply went AWOL.

The threat worked, temporarily. The next morning I did fall out for training, 

having decided th at I would feel my way through the first two weeks of training— 

classroom work, first aid, drill, and calisthenics. But I had called my wife and my 

paren ts to tell them I could not train, and they took their own steps to help me 

resolve the dilemma.

My father im mediately phoned the chaplain, and asked him to speak w ith me. 

So, when the first day of tra inin g ended with th e chaplain’s orientation, Chaplain 

(MAJ) Lewis kept me in his office after the company had gone back to the barra cks. 

He assured me th at going throug h training would be the best course, and th at I 

would find that is wasn’t really so bad. He also pointed with pride at th e picture, 

on his desk, of his son g raduating from I nfantry Officer Candidate School. He was 

carrying out his Military Chaplain role: to provide spiritual comfort and solace 

so th at those who think they maybe shouldn’t kill will know th at it’s all right with 

God.

My wife wen t th rough different channels. We knew some civilian conscientious 

objectors, and she called them. One of them to ld Marion about the Central Committee for Conscientious Objectors; she made a late-night phone call; and CCCO 

immediately sent me a Handbook for Conscientious Objectors, a memo on “ Conscientio us Objectors in t he Armed Forces,” and a copy of Army Regulation 635-20, 

“ Personnel Separations: Conscientious Objection.” AR 635-20, which neither 

my platoon sergeant nor, more surprisingly, the chaplain, had mentioned to me, 

provided a procedure by which people who became conscientious objectors after 

ente ring the army could apply for discharge. The regulation, the memo, and the 

Handboo k arrived on the third day of training. I read them overnight, and acted 

first thing the n ext morning.

Feeling hopeful th at my dilemma could be worked out reasonably, and th at I 

would even tually perform two years of altern ate service as a conscientious objector, I went to the First Sergeant to tell him th at I was applying for discharge 

under AR 635-20. But 1SG Cole snatched my copy of the regulation from my 

hands, demanding, “ Where did you get this?” He read it, spu tter ed, a nd went to 

my file. “ Sorry, Brown, it doesn’t say here th at y ou’re a conscientious objector.” 

I explained th at of course my file didn’t say th at —I hadn’t been a conscientious 

obje ctor when I signed up. But didn’t the regulation say I could apply for discharge, and didn’t it say th at someone applying for discharge should be removed 

from training and assigned to duties in the “ minimum practicable conflict with 

his beliefs” ? He recognized tha t (how many Fir st Sergeants have refused to do so?), 

bu t said th at I had to provide all the information and answer all the questions in 

the re gulation before I could be ta ken out of training.

I set myself a deadline: ten days later, when the company was scheculed to go 

to the rifle range to really begin learning to kill. And I met it. Th at Monday 

morning, as m y fellow train ees lined up to go to the trucks th at would tak e them 

to the bivouac area, I took my sheaf of papers to the Orderly Room, and hande d 

them to 1SG Cole. I was half expecting to be assigned to KP from th at moment 

on—but I was not to be so lucky. My application, 1SG Cole said, was n ot typed 

and in the proper form, so th at I really hadn’t officially applied for discharge yet, 

and I would have to go to the rifle range with everyone else.

After he assured me that th e company clerk would type my application as soon 

as possible (a rare courtesy), I went. Monday, there was no actual firing; Tuesday, 

I was on KP, so I tho ught things would still work out. But Tuesday night, 1SG 

Cole and the company clerk came out to talk with me. The clerk was refusing to 

typ e my application in its present form, the y said, and they dema nded th at I 

revise it. It was too long; it had too many quotes; it obviously was n ot my own 

thinking. “B ut most of the quotes are from the Bible, and I think it ’s the best 

application I can make, and I wan t it the way it is,” I told them . They only 

repeate d the ir demand.

Perh aps i t is now clear why I am going into so much detail abou t mv attempt to 

obtain a conscientious objector discharge. I had every advanta ge a GI could have 

had. I am white; my schools had taught me to read and write fairly well; mv family did what it coula to help me; and I had received th e be st assistance th at CCCO,
739

then the only group even atte mp ting to cousel GIs, could give me. I had my own 

copy of the discharge regulation, and I had studied the CCCO memo and Hand­ book so tha t I knew something of my rights. But even at th at, I faced a new roadblock every few days, throw n before me to prevent me from following a perfectly 

legal course of action prescribed by regulations which the officers an d NCOs over 

me had a duty to follow. I was able to persevere, in large part because I still had 

fait h th at established procedures could work for me, and because of the suppor t 

and advice I was receiving.

Most GIs do not have th at fa ith—nor have they any reason to have it. Neither 

do most enjoy th e kind of outside contac t which I had. Most GIs who became war 

objectors are in the military longer than I was before their beliefs change, so 

th at they know too well what to expect of sergeants, chaplains, and commanding 

officers. My experience shows t ha t going AWOL as an act of war resistance—for 

instance of filing a conscientious objector claim—is a rational and honorable 

course of action. My experience also provides a hint as to why a Pentagon s tud y 

showed t ha t a very small percentage of return ing AWOLs told their commanding 

officers th at they had gone AWOL for moral or political reasons. All they would 

have accomplished had they done so would have been making a point to someone who wasn’t likely to care. More likely, they would be letting themselves in 

for worse tre atm ent tha n they could alrea dy expect for simply being AWOL.

At my first court-martial, my defense counsel (not an attorn ey—he was a 1st 

Lieu tena nt of the Infa ntry ) told me as much. He suggested th at I plead guilty 

to refusing an order, and th at I make no statem ent abo ut why I had refused. 

Better to let the officers sentencing me—officers of my train ing brigade—th ink 

I was jus t a mixed-up trainee, tha n to risk extra punishment by telling them I 

refused because of conscientious objection to training. I was willing to go to jail, 

but did n ot want to ask for extra trouble, so I followed his advice. The lieute nant 

may have been right—the court sentenced me to only three months of a possible 

six.

But I was speaking of t ha t Tuesday night in the Command Tent at the bivouac 

area by the rifle range. I was faced with three choices: le t the company clerk revise 

my application to his liking, resign myself to doing what each day I abhorred 

more, or prepare to refuse orders and go to the stockade the next day. Pu tting 

a man in t ha t kind of dilemma is nothing short of in timidatio n, though at the time 

I believed th at 1SG Cole and the others tho ught th at they were following 

regulations and trying to help me. I resolved the dilemma by reducing my s tatements to outline form, which the company cleark agreed he would type.

Wednesday, it was back to the rifle range. We fired t ha t day; I am still a littl e 

asham ed th at I took par t. Thursday morning the same. After lunch, 1SG Cole 

appeared, with papers for me to sign. G reatly relieved, I began to sign, then noticed 

a typing mistake. I looked over the papers carefully, and saw many mistakes— 

misspellings, incorrect dates, form th at bore no relationship to the letters and 

numbers in either my outline or the regulation. So I started going through, making 

ink corrections and initialing them, as I had learned was proper military form. 

But 1SG Cole had no patience for t ha t process, and demanded t ha t I simply sign 

all the copies, or go back to training for long enough to get it re-typed, which might 

take a while. I signed.

Things got better after that. T hey im mediately took me out of training, assigned 

me to KP (perm anently, they said), then put me to work two days later at a 

typewriter in the Orderly Room. I continued to live in the same barracks, and 

had all the privileges—and more—th at my fellow trainees had. When th e company 

graduated, I still remained in the barracks, awaiting action on my discharge 

request, through a second complete cycle. During that time, I became more and 

more like an ordinary soldier working as a clerk-typist, and had passes an d a leave 

jus t like the company clerk.

But there were still roadblocks. In submitting my application, I had to talk 

again with Chaplain Lewis. He was quite put off th at I had decided to seek discharge, and told me in no unce rtain terms th at I would n ot get out, and would 

spend five years at Leavenworth. He also recommended th at my application be 

turn ed down, though he had made no att em pt to find out what I believed. A 

conversation with my company commander was no more productive, exce pt th at 

he became more visibly angry, and wrote in his recommendation th at I was a 

victim of a “Pacifist conspiracy.” I suppose he was sorry for me.

The final roadblock, which I still believe, perhaps naively, to have been uninten tional, arose when I received orders to go to Fort Benjam in Harrison for 

advanced train ing as a stenographer. Since I had not completed Basic Com bat
740

Training, such orders were clearly absurd, so I went to the personnel office to 

wonder about them. A clerk there checked my file— and found my discharge 

request, which had never been forwarded to Washington for an official decision. 

Unfortunately, discharge requests getting “lost” in that way was quite common.

I was one of the lucky ones who found out about it, partly because I knew that 

AR 635-2- required that a GI be retained in his original unit for processing.

That is probably enough detail about my first discharge request. That request, 

which cost such constant effort even to submit, was turned down, as were 96% 

of all army conscientious objector discharge requests that year. I was placed 

back into Basic Combat Training, in a different company, and immediately 

refused a sergeant’s order to accept a rifle. A week later, that first court sentenced 

me to three months, and the brigade commander suspended the sentence to give 

me another chance to be a good soldier.

COL Musser took that action despite a long conversation with my wife and 

me, in which I explained my total objection to military service, and Marion 

reiterated her support. Suspending my sentence was really no favor a t all. Within 

a few days, after being transferred to another training company, I again had to 

refuse an order to accept a rifle. This time, I disobeyed a captain, and could have 

been sentenced to five years in prison. But that charge was dropped, on a technicality arising from the captain’s apparent belief in my sincerity.

I was then ordered into the stockade to serve the original three-month sentence. 

Upon my release, I made it clear that I would again refuse to train. Rather 

than force me to disobey another order and go back to the stockade, the brigade 

suggested that I apply for discharge a second time, and promised to recommend 

approval. They kept their promise, and the company commander also recommended approval, but post headquarters did the opposite. And so, while I worked 

on as practically a company clerk, my second request for discharge went up and 

down the channels to the Pentagon, to return, “ Denied.” Tha t year, 95% of all 

conscientious objector discharge requests in the army met the same fate.

Tha t period, from January through May, 1967, while my second request for 

discharge was being turned down, was an agonizing time for me. It had cost me 

an effort to decide to even submit that application, because I knew that it would 

mean more months doing work that was against my conscience, as far removed 

from the battlefield as I was. On the other hand, the brigade had been unusually 

generous in offering me the opportunity, when they could have forced me to 

immediately disobey another order. And I certainly did not mind the reprieve 

from being locked up again. So, I chose to be patient— perhaps the official channels 

would work properly this time, and I would be discharged as a conscientious 

objector.

Most GIs, of course, were not so patient. They didn’t wait around for repeated 

bureaucratic maneuvering, but simply went AWOL. My course may seem, especially to people such as Congressional Subcommittee members looking at it in 

retrospect, to have been the more honorable and idealistic, and perhaps even the 

more courageous. And I’m not sorry I took the course I did. Nonetheless, I can’t 

but wonder if those who went AWOL— those who said, “ No more!” and acted on 

that— weren’t the truer resisters, and the more rational in their decisions. In all 

I gave nine months of solid work to the military after coming to understand 

that doing any military work at all would contradict my most deeply held beliefs. 

Those who went AWOL gave no more, from the moment they left. In exchange 

for those nine months I put in, the best I could have hoped for would have been 

individual vindication of some sort, an official statement by the military that I 

was a sincere conscientious objector by their standards. What a poor trade! 

Those who left were not seeking recognition or official approval. They wanted out 

of an intolerable situation, and they got out, without ever asking the warmakers 

to judge their sincertity as peacemakers. And they succeeded in giving no more 

time to the military they abhorred.

But I waited, increasingly troubled by even wearing the uniform. In April, 

I was ready to take it off forever, but my lawyers advised me to wait— why put 

myself in jeapordy when I might be on the verge of discharge? I took their advice, 

as I had when deciding to submit the second discharge request. Besides, I had 

another hope: the AC LU had taken my case, and was seeking a writ of habeas 

ccrpus in federal court. Such writs became commonplace by the late 1960s, but 

at that time no federal court had even accepted juridsiction to review military 

decisions in conscientious objector discharge cases. The District Court judge
741

had in fac t refused jurisdiction in my case in December, 1966, bu t the case was 

then on appeal.1 I might have gotten out a t any time.

I didn’t get out. In the last week in May, 1967, I went to the Brigade Message 

Center on some erran d, and saw, on top of a pile, a telegraphic message from the 

Departme nt of the Army to my commanding officer. It said that my requ est for 

discharge had been denied.

2LT Havekost, the company commander, knew of my beliefs. As Executive 

Officer in F ebruary, he had handled the initial processing of my discharge request. 

Also, I had been working in his Orderly Room, and we had occasionally talk ed 

abo ut my stan d. I showed him the message from DA. I showed him also a s tatement I had happened to write earlier th at week, which explained th at I could no 

longer wear my uniform, nor do any work at all. I had waited too long and given 

too much—my response to not being discharged could only be complete noncooperation.

Since it was late Friday afternoon, I asked for a weekend pass, so t ha t I could 

say good-by to my wife. Lt. Havekost gave me the pass. My lawyers then convinced him to extend it to a leave, so th at they could a tte mpt to convince Brigade 

officials to let me seek an unsuita bility discharge. I returned the following Thursday aftern oon, hoping to meet again with Chaplain Lewis (by then a Lieuten ant 

Colonel) and convince him to help me get out. But Chaplain Lewis would not see 

me.

Friday morning, I went to the Orderly Room, dressed in civilian clothes, I 

signed in from leave, and Lt. Havekost called me into his office. He called the 

senior NCO in as well. “Brown,” he said, “I am giving you an order to go back to 

the barracks, put on your uniform, and report back here to your usual place of 

work in the Orderly Room.” In reply, I again handed him my sta tem ent. He looked 

it over, then w ent throu gh the necessary rituals to verify tha t I had h ear his order, 

th at I understood, and th at I was refusing to obey. Th at done, Lt. Havekost said 

he would have to pu t me in the stockade, and told me to w ait for him in the orderly 

room. But he did allow me to go, with an escort, to the pay phone in the barracks, 

to call my lawyers and my wife.

Late in the morning, Lt. Havekost returned, wearing a .45 pistol. We got into 

his car, and drove to tne stockade. He turne d me over to the guard a t th e gate, and 

quickly left. I went thro ugh the initial searches, then was sent to draw m y bunk, 

mattress, and toile t articles. I was then assigned a place in a cell block/barracks.

I did not go to lunch, because I was fasting as a f urther expression of the total 

stand I had been forced into. After lunch came headcount. I refused to join the 

head coun t formation, and was relieved when the guards took no action. They 

decided to count me as I sat on my bunk, as the y counted other prisoners who 

had official clearance to stay in the cell block. Then, work call, and again I remained on my bunk, sitting quietly.

Before long, two guard sergeants came through the cell block, rousting out 

stragglers. They saw me on my bunk, and wondered why I wasn’t at work call. 

I tried to explain, bu t fear held my words in my throat. Perhaps I mumbled something, perhaps I said nothing. So the sergeants pulled me from my bunk, after 

telling me I had to go to the Control Room with them. I remained limp. The two 

men tried to stand me up, bu t failed, so one of them ben t my hand and wrist far 

backw ards, telling me he would break my fingers if I didn’t stand up and come 

with them.

I gave in then, and we went to the Control Room, with one segeant holding each 

of my arms as I half walked and was half dragged through the compound. They 

left me in the Correction Officer’s office.

When CPT Miller, the Corrections Officer, came in, I regained my tongue 

I told him of my beliefs, and explained th at I could do no work, not even in the 

stockade, for I knew th at even prisoners’ work contributed in its own small way 

to the combat effort. When CPT Miller replied that I would not have been assigned to work, but would only have been called out for continued processing-in, 

I replied th at I believed I should have not been imprisoned in the first place, and 

could not participate in any stockade routines. Finally, he gave me an order to 

go to work call, and I refused.

CPT Miller called a guard, and ordered me placed in Segregation—the military ’s polite term for solitary confinement. This time, I went along. In segregation, I would be removed from the stockade routines which I was refusing to pa rticip ate in.

1

 Eventually, the Circuit Court did accept jurisdiction, making mine the first case 

ever to be reviewed in th at forum. But the court did not gra nt habeas corpus. See Brown 

v. McNamara, 263 F. Supp. 687 (D.N. J. 1967), aff’d 387 F.2d 150 (3d Cir. 1967).
742

Once in my soli tary confinem ent cell, I contemplated my situa tion. In the 

space of a few hours, I had been charged with disobeying two orders from Lt . 

Havek ost (that was how he wrote it up— one order to put on my uniform, and a 

second order to report for work), with disobeying an order from C P T Miller, and 

with disobeying a post regulation about wearin g civilian clothes while in train ee 

status. Th at meant that I was faci ng fifteen years and six months of prison, sim ply 

for insisting, contrar y to the jud gment of the Dep artm ent of Defense, that I was 

conscientiously opposed to particip ation in war in any form. Fifteen and a half 

years. I knew — Marion and I had talked abou t it— how people could grow apa rt 

in even a few years, and that being in prison for that long would probab ly mean 

startin g a completely new life when I got out. Bu t I tried to draw strength from 

the moral supp ort I knew I had on the outside, from the trad ition of non-violent 

resistance of which I felt a part, and, most important, from the Spirit which I 

sought to affirm in my actions.

Bu t my mediation was cut short. I was being take n to the Control Roo m, 

called to see MA J Ford, the Confinement Officer. The problem was my refusal to 

wear militar y clothing. Ignoring the fact that perhaps a third of the prisoners had 

no uniforms, since the y had rece ntly been arrested while AW OL, MA J Ford insisted that I put on a uniform. Once again, I expla ined my position, explained 

that I had walked the second mile, and could do no more. MA J Ford did not 

give me anoth er order— instead, he told me tha t if I didn ’t put on a uniform my ­

self, he would hav e one put on me.

I spen t the next few minutes in the holding cell near the Control Desk, while a 

guard went to the stockade sup ply room to get me a uniform and boots. When the 

guard returned, a sergeant took the uniform, led me from the holding cell into 

an office, and closed the door. Another sergeant was alread y there. One of them 

was the man who had threa tened to break my fingers.

“ Brown, wh y don’ t you jus t put this uniform on? It ’s onl y work clothing ; 

it doesn’t mean any thin g. Yo u know the rules here.”

Did I try , again, to explain what I believed? Maybe , maybe not— but the 

sergeants soon understood that I would not tak e off my civilian clothes and put 

on that uniform.

I stood quie tly, arms at my side. One sergeant stood in fron t of me, and began 

to unbutto n my shirt. I crossed my arms over my chest to obstruct him. So the tw o 

of them move d to stand half behind me, one on each side. Th ey took hold of my 

shirt and undershirt collars. At a signal, the y ripped downward, stripping the 

shirts from me. Then, the y came more to my front, to grip the wais tban d of my 

trousers. Again , the y tore, this time with more difficulty, until I was left s tand ing 

in my briefs, shoes, and socks.

Now, the sergeants held up the fatigue shirt, and put one of my arms into a 

sleeve when I remained motionless. While the y put the other sleeve on me, I 

wriggled the first one off. Th ey replaced it, a litt le more roughly, and shac kled 

my wrists to be sure the shirt could not come off again. Then the y suggested 

that I cooperate with put ting on the trousers. We were all swea ting by tha t 

time, and the y were puffing a little.

I offered no help with the pants, bu t again remained stan ding quietly . Ha rdly 

knowing what had happened, I was suddenly lying on the floor, with a serg eant ’s 

boo t or knee on my neck, app lyin g enough pressure to keep me from struggling. 

The sergeants wrestled the trousers onto my legs, stood me up and pulled the 

trousers up, and finally buttoned the waistband and roughly tucked in my shirt. 

Th ey had stripp ed me of my shoes and socks in the process, and now the y forced 

the boots— fort unately too large— onto my feet. While the y did so, I managed 

to unbutto n the fatigue trousers and some shir t buttons despite the handcuffs 

To no avail, however. The sergeants handcuffed me behind my bac k, re-fastened 

the uniform , and took me to stan d in fron t of the control desk while a guard 

came from Seg to get me.

Back in the soli tary confinem ent cell block (I had walked, resisting a tem pta ­

tion to kick off my b oots as we crossed the compoun d), three guards stood around 

me. One said, “ We’re going to tak e you r handcuffs off, bu t don’ t try to tak e off 

you r uniform, or the y’ll go bac k on.” My wrists were freed, and I began 

unb utto ning my shirt. One guard grabbed my arm, pulled it around behind me 

in a hammer-lock, and said, through clenched teeth , “ You do that again, and 

I’ll break you r arm .” A second guard buttoned the shirt, and I was released.

Bu t my hands went to the buttons again. Again, my arm was grabbed. I was 

thrown to the floor on my stomach, and was held with a knee in the back, and 

by my arms and legs. One guard reached to my face and took off my glasses— a
743

rare touch of mercy, perhaps intended to make sure that there would be no 

broken glasses to tell tales. I heard puffing and muttered commands, and felt 

my wrists and ankles being bound, then drawn together at the small of my back, 

then tied there. Then, the guards picked me up by my arms and legs, and 

carried me, my face inches from the concrete floor, to my cell. In case I should 

fall off my bunk— a steel plate fastened to the wall and hanging by two chains— 

they put the mattress on the floor next to it.

“One, two, three, heave!” I felt myself swinging, just missing the floor, and 

then flying through the air toward my bunk, finally landing there safely. “ We’ll 

take off the traps when you’re ready to leave your uniform on,” I heard. The 

cell door swung closed, and I was alone.

Tha t was all the physical bruta lity that was ever used on me. Most GIs who 

resisted, especially if they simply went AWOL, experienced less. Some experienced 

much more, particularly Black or Spanish-speaking GIs, or those who organized 

anti-war activities among GIs What I experienced was symbolic of the physical 

and mental b rutality that all experienced. I refused to conform my identity, either 

internally, in my beliefs, or externally, in my actions and my clothing, with what 

the military wanted to make of me. So the military stripped me, imposed its image 

on me, and bound me, hand and foot, to ensure that I could not break free. That 

is the military way.

Tha t is conscription’s way as well, and it is the prison way. And, if this country 

fails to declare a universal, unconditional amnesty for those who resisted US 

involvement in the Indochina war, that same process th at left me in straps on a 

steel plate bunk in a solitary confinement cell will be officially affirmed as the 

American way.

For the process goes on, most obviously with the several hundred civilian war 

resisters now in prison or on parole or probation, and with the GIs still in stockades, brigs, and military prisons for disobedience and for AWOL. Nor does it end 

there: half a million bad discharges still hang on the necks of GIs, including me, 

who resisted, and thousands of felony records weigh down those who refused even 

to enter the military. And the same fate still awaits tens of thousands who now 

struggle, with more or less success, under the burden of enforced isolation, and even 

namelessness, in exile or underground.

Do not think that I am asking for pity. I am not pleading. I am standing before 

you, saying that what this country has done, and is doing, to Indochina war 

resisters, is cruel and wrong. An unconditional amnesty, which releases all war 

resister prisoners and halts all prosecutions, military and civilian, for war resistance; which expunges all criminal records, military and civilian, resulting from acts 

of war resistance, including AWOL and violations of UC MJ Article 134 as well as 

disobedience; which upgrades all Vietnam Era bad discharges; and which offers 

exiles the opportunity to reclaim their US citizenship, could put an end to the 

cruelty, now.

It is hard for me to understand how anyone can consider anyth ing less. B y the 

end of direct US involvement in the Indochina War, the majority of Americans, 

including members of this Subcommittee, saw and said that US actions in Indochina had been illegal and immoral, and called for the speediest possible halt to 

those actions. Tha t implies that those who had resisted the war, who had in one 

way or another refused to fight or had attempted to disrupt the war machine, had 

judged correctly.

To call US actions in Indochina illegal and immoral also implies tha t those who 

participated, participated in a crime. It especially implies that, at some point, 

whether b y neglect or b y design, the officials who made the decisions and gave the 

orders broke laws. And what of those crimes? For the most part, we have all decided that the situation was too complicated to assign particular blame— though, 

in contrast, tremendous amounts of taxpayers’ money has been spent on investigations and secret grand juries aimed at uncovering numerous “ conspiracies” by 

resisters to commit acts which never even took place. Where particular blame 

could be assigned— for example, an Air Force general who illegally ordered illegal 

bombing raids (which killed how many people, destroyed how many homes, wiped 

out how many fields?), and who then falsified reports to hide those raids— the result 

has been, not punishment, but vindication and reward. General Lavelle was 

allowed to retire, and then was awarded massive disability payments in addition 

to his already large retirement income.

The realities of US conduct in Indochina also call into question the repeated 

demand that those who resisted do some sort of compensatory service, to make 

up for the service which they refused to perform when they refused induction or
744

left the military. I do not want to make villains of the GIs who did not resist— 

they were subject to immense pressures. But, with all due respect, we as a nation 

must deeply question whether participation in the Indochina War was, in the 

long run, service to this country. And, we certainly must not demand that resisters 

make up for not having killed. Even those who demand some sort of compensatory 

suffering— for Vietnam GIs suffered much and suffered long— ought to recognize 

the degree of suffering which most resisters have already experienced. Let no one 

say that resistance was an easy way out, whether that resistance involved open 

disobedience of laws or orders, or was expressed by entering exile or an underground existence, or was, as in most cases, a long, tortured series of hard times in 

a military that refused to listen, and that treated maladjustments, absenteeism, 

and attempts to seek and express the truth, as crimes.

Personally, I would refuse to perform any kind of forced service in exchange 

for full restoration of my civil liberties. On the one hand, this country has already 

exacted the price of two years of my life, including over sixteen months in military 

prison. But more important, I would consider forced service an attem pt to wring 

from me, and from all resisters, an admission that it was all right for the US to 

draft and order people into the Indochina War, and that maybe we should have 

gone after all. I will not make such an admission, in any form.

For it is important to remember what it was that we who resisted did not do, 

and what it was we were trying to stop. We were not in the skies over South 

Vietnam, North Vietnam, Laos, Thailand, and Cambodia, raining death and 

ecological destruction, and driving people from their homes. We were not on the 

ground at My Lai and so many other hamlets, carrying out massacres and 

sweeping through free-fire zones. We were not afloat in the mobile sanctuaries of 

aircraft carriers and other warships, sending off planes and firing guns that 

brought further destruction to beautiful Southeast Asian lands. And we did not 

order tens of thousands of young Americans to their deaths— we did not issue 

illegal induction orders t hat young men obeyed because they could not know of 

the illegalities, and because they trusted their country; we did not wrongfully 

deny discharges; and we did not order Hamburger Hill to be retaken at the cost 

of hundreds of lives, only to be abandoned a few days later as insignificant.

It is not necessary to investigate crimes such as these, which so many Americans 

committed for so many reasons at such great cost to the victims. It is enough to 

know th at they existed, and to acknowledge that they existed, and to ensure that 

they will never happen again.

But in the light of such things, why is there any question of welcoming back 

into full citizenship every person who did what he or she could to stop those 

crimes while they were being committed. In light of the implied amnesty— and 

more than amnesty, in many cases— which those who carried on an illegal and 

immoral war have received, how can there be any question of amnesty for those 

whose crime is that they could not be forced to become criminals. It is a sad, 

topsy-turvy world indeed, in which fine questions of motivation and morality are 

raised about those who removed themselves, by whatever means, from the horror, 

while those who created and carried out the horror are honored, promoted, and 

revered as heroes.

N a tio n a l St u d en t C o o r d in a tin g C o m m it tee fo r F ree dom in Vie tna m an d

S o u th ea st Asia , Sta te m e n t on Am nest y Leg is la tio n

Since 1972 we have surveyed a number of individuals who had evaded the 

draft by not appearing for induction as ordered b y their draft boards. They were 

located in Europe, Canada and the United States. Since these individuals were 

selected from among anti-war activists it may be argued that they may not be 

representative of those who simply wanted to avoid the draft. Nevertheless, it 

is our conclusion that a significant number of those evading the draft did so 

prior to or after becoming anti-war activists. We consider it safe to conclude 

further that those we interviewed were representative of these activist types.

Unanimity was found on the following points:

(1) They insisted that they are not guilty of any crime. Rather, since they 

claimed with certainty that the Vietnam war was immoral and illegal, their 

evasion of the draft was, th ey believed, consistent with their obligations under 

the Neuremberg principles. Since they consider the U.S. government guilty 

of war crimes, they have concluded that those who complied with the draft 

law are guilty of war crimes.
745

(2) All indicated supp ort for the North Vietnamese cause and, to varying 

degrees, expressed sympath y for the social values of the Hanoi regime over 

those of the United States.

(3) All expressed the view th at the present system of government ruling 

the United States serves only the inte rest of a small group exploiting the 

majority. They expressed personal comm itment to the removal of t ha t system 

and depicted their anti-war activities and draft evasions as steps in th at 

direction.

In conclusion, the image projected is tha t of ideologically motivated individuals 

seeking to overthrow a system responsible for injustice all over the world and 

ruled by individuals guilty of “war crimes” in Vietnam. As they see it, the issue 

is, therefore, not amnesty for them bu t rather prosecution for “war crimes” of 

all those responsible for the execution of the Vietnam War.

Since the issue then is really one of whether they , by avoiding the draft, are 

criminals or the nation ’s leaders, by carrying out a w ar in Vietnam, are guilty of 

“war crimes,” we believe the issue still belongs to the judicial branch of government. If the nation’s leaders are to be judged as war criminals, then those who 

need amnesty would not be those who evaded the dra ft but rather those who 

complied with it. This issue must be settled for the good of everyone concerned. 

For Congress to legislate amn esty for one of the parties involved before guilt has 

been established is a vile transgression of the principle of separation of powers.

While we deplore the views and actions of these individuals we do thin k th at 

under our form of justic e they do deserve their day in court. For Congress to 

legislate amnesty is not only to deprive them of an opportu nity to sta te their 

case before the rule of law but also a presumption of guilt before so found by the 

prop er judicial body.

Let’s not force posterity to live with the memory th at because we feared the 

charges of these people we deprived them of their judicial righ ts with legislated 

amnesty. Should histo ry record this Congress as opting for politics over justice?

Since th eir cause is by far greater tha n just evasion of the drafc, denying them 

their day in court would indicate th at our system denies due process to those v. no 

would alter it from within. Amnesty legislation would thus serve as support for 

the claim th at change can only be brought a bou t by extra-legal means. We regret 

th at the ir violation of the draft law can be considered to be either a legal challenge 

to it and to the Vietnam war or simply an opportunistic act of cowardice. It is 

not up to Congress to assume the latte r by legislating amnesty.

Those who would receive amnesty under proposed legislation would include 

those who insist th at am nesty is only a disguised concession by th e United States 

Government to their war crimes charges. Think of how those who served would 

feel. They served and suffered for the system t ha t many of those to whom Congress 

would grant amne sty are seeking to overthrow. They fought an enemy th at many 

of those to whom Congress would gra nt amnesty supported.

Lastly, it was our u nderstanding th at as a m atter of national policy, the amnesty 

issue would not be raised until the POW-MIA problem was completely settled. 

As we all know this has yet to occur. These hearings are, therefore, a vile violation 

of that dem onstration of natio nal resolve on freedom for all POW’s and compliance 

with the Paris Accord’s sections on MIA ’s.

We must show respect for those who served a nd those who refused to serve for 

cause (even though the latte r may be a minority of those who refused to serve). 

This can only be done by allowing them their day in court.

We must not allow the issue of criminality to remain moot. It must be settled 

by the appropriate judicial bodies on a case by case basis.

This is not the time to legislate on amnesty.

General Order No. 152—T he General Amnesty

(By Morris Sherman *)

After the Civil War, draft-evaders and deserters were recipients of President 

John son’s amnesty and returned to their normal pursuits in civilian life. “ Not 

true, say the anti-amnesty forces, there has never been a general amnesty 

following any American war.”

1

 The writer, a reference librarian at Rutgers University, is the autho r of Amnesty in America; An Annotated Bibliography, soon to be published by the New Jersey Library 

Association, 221 Boulevard, Passaic, New Jersey 07055. The preceding article is a condensation of Chap ter Six.

31-658 0—74------49
746

Both positions are incorrect. Neither concept is viable under the glaring light 

of historical research. Yet there is no mention of amnesty for draft-evaders and 

military deserters in any of President Johnson’s four amne sty proclam ations. 

All were directed a t the former members of the Confederacy and grante d a general 

amnesty to some and a limited amnesty to others. What happened to the Northern 

draft-evader and deserter?

In 1863, the North, atte mpting to smash a reeling Confederacy, especially 

after Antietam, by instituting the first large-scale military conscription in American history, passed the Enrollment Act of 1863, 13 STAT. 731. Militia drafts had 

been common in colonial and revolutionary times and Secretary of War James 

Monroe’s a tte mpt to conscript an army of 100,000 men for the War of 1812 was 

defeated in Congress.

Section 13 of the act empowered the War Dep artm ent to arrest any draftee 

failing to report, institu te a court-martial, and if necessary shoot him for desertion—w ithout ever having taken an oath of allegiance to the military. This, and 

abuse of the commutation clause of the enrollment a ct (payment of $300 to exempt 

one from the draft) provoked massive resistance, not only in the famous Draft 

Riots of 1863 in New York City bu t throughout the North, especially in Ohio, 

Indiana, Illinois and Wisconsin. The dra ft riots in Port Washington, Wisconsin 

were equal in intensity, if not in size, to those in New York City.

A test of the act’s validity in the Supreme Court of Pennsylvania resulted in a 

nullification of a federal act; the enrollment act was declared unco nstitutional and 

an injunction granted against its enforcement. A change in the cou rt’s personnel 

led to a rehearing of the case and dismissal of th e injunction. Kneedler v. Lane,

45 Pa. St. 238, 1863. When the government atte mpted to enforce the draft, 776, 

289 names were selected. Of these, 166,284 failed to report. These figures are 

from the official records of the Civil War, titled, The War of the Rebellion; 

A Compilation of the Official Records of the Union and Confederate Armies, 

Series 3, Volume 5, pp. 621-759.

When the war ended, little though t was given to the draft-evader or deserter. 

The Union had been saved and recon structing a defeated Confederacy was a 

problem th at loomed larger tha n all others. On October 17, 1865, Assistant 

Adjutant-General E. D. Townsend, representing the War Departm ent, signed 

General Order Number 152, the most sweeping amnesty in American history. 

The order:

“ Ge n e r a l Or d ers N o. 152—W ar D epa r tm en t

“ Ad ju ta n t G e n e r a l’s O f f ic e ,

Washington, October 17, 1865.

“Herea fter no person shall be arrested as a deserter for having failed to report 

under any draft, or for any other non-compliance with the enrollment act or the 

amendments th ereto. Any and all persons of this class now held will be immediately 

discharged.

“By order of the Secretary of War.

“E. D. T o w n se n d, 

“Assistant Adjutant-General.”

The order presents an interesting paradox. If the dra ft was unconstitutional, 

thousand s of men died as a resu lt of an illegal governmental actio n; if it was constitutiona l, General Townsend’s order negates the claims of anti-amnesty groups 

in tod ay’s society th at general amnesties have never followed any American war.

This little-known and long-forgotten order, which may be a precedent for a 

grant of amnesty following the Vietnam War, was not the majo r thrust of forgiveness after the Civil War. Little controversy, if any, if any greeted its proclamation. Rathe r, the turmoil was centered around the conflict between President 

Johnson and Congress over the power to read mit the former Confederates into th e 

political and social mainstream of a unified nation. Nevertheless, the precedent 

remains.

St a t e m e n t of th e N a tio n a l C o u n c il of J ew is h W om en Su b m it ted to th e

Su b c o m m it tee on C o u r t s, C iv il L ib e r t ie s an d t h e Ad m in is tr a tio n of

J u s t ic e, of t h e C om m it tee on th e J u d ic ia r y, H o u se of R e p r e s e n t a t iv e s, 

on P e n d in g Am nest y L eg is la tio n

The National Council of Jewish Women is an organizatio n founded in 1893, 

and now has a membership of over 100,000 members located in communities 

throug hou t th e United States. Since its inception the organization was committed
747

to the prote ction of individual rights and liberties. For this reason the delegates 

to our last Biennial Convention held in Miami Beach, Florida in March 1973, 

expiessed their support for amne sty and adopted the following resolution:

“ l . IN D IV ID U A L R IG H T S AN D R E S P O N S IB IL IT IE S

“The Natio nal Council of Jewish Women believes th at the freedom, dignity and 

security of the individual are basic to American democracy, tha t individual liberty 

and rights guaranteed by the Constitution are keystones of a free society and th at 

any erosion of these liberties or discrimination against any person undermines 

th at society.

“I t therefore resolves:

“ 11. To work for and su ppo rt measures which will in a spirit of reconciliation, 

provide amnesty for all who have been pu t in legal jeopard y by their re sistance to 

the w ar in Indochina.”

The National Council of Jewish Women is aware of the concerns raised by 

thou ghtful people sensitive to the deep emotional impact of the Vietnam war and 

wish to recognize their legitimate reservations; however, we feel th at a spirit of 

reconciliation will do much to bind up the wounds caused by the years of this 

war. In th at vein we wish to quote from a petition submitted in 1971 to th e President of the United States and the Congress by a group of college professors and 

others who work closely with young people.

“These men are still young, many of them still in the ir teens; most have 

probably never voted in a federal election. Their lives have been deeply affected 

by a war which was not of their making. One which—we feel sure—the overwhelming majority of this natio n wish we had never begun and pray may quickly 

end. So deeply felt is the revulsion against this war, th at the air is full of charges 

and countercharges as to who was to blame for it . . . But let there be no legal 

recrim inations among ourselves for the fighting or the refusing to fight this war. 

The healing and reconciliation of the nation, its re-direction toward peace with 

itself, will be difficult enough. It will be folly to m ake it even hearder by exacting 

heavy legal penalties from these young men.”

It is now a year since the official close of the Vietnam War. It is term ed by 

some as one of the most divisive wars in the history of this nation a nd one which 

created wounds th at must be healed because it affects large numbers of people 

in our population. It has been variously estimated th at tens of thousands or even 

several hundreds of thousands of young men will benefit from this amnesty. This 

does not include members of the ir families, who are suffering separation and grief 

because of the plight of their sons.

We agree with former Secretary of the Army, the Honorable Robert E. 

Froehlke, who was convinced amnesty was needed to “begin mending in every 

possible way the heartbre ak and wounds left ” by the war in Vietnam. He further 

elaborated “I am not prepare d to say Vietnam was right or wrong, Vietnam deeply 

hu rt America.”

Since ancient times amnesty has been granted to heal wounds created by 

military conflicts. History records th at Julius Ceasar again and again granted 

amnesty to his political and military foes. Euro pean countries have a record of 

grainting amnesty, and United States Presidents, beginning with George Washington, have granted some form of amnesty, after every military conflict.

Amnesty is necessary to heal the wounds and divisions of th e Vietnam war and 

to restore to useful citizenship those who are now barred by legal restrictions.

History indicates th at Congress has exercised the autho rity to “am nesty” war 

resisters, as was demonstrated in 1898 when Congress authorized universal 

amnesty following the Spanish American War. We, therefore, urge th at Congress 

enac t withou t m uch delay a broadly framed amnesty bill.

L ib e r t y L obb y St a te m e n t on Am nest y S u b m it ted to H o u se J u d ic ia ry

C o m m it tee

Mr. Chairman and Members of the Committee, Liberty Lobby appreciates 

this opp ortunity to present the views of its 20,000-member Board of Policy, and 

also the approximately quarter million readers of its monthly legislation report, 

Libe rty Letter.

Liberty Lobby is an institution of American citizens, often called the people’s 

lobby, who have joined together to prom ote the ir patriotic and con stitutionalist
748

convictions for good government. Libe rty Lobby’s position is different from those 

of special interest pressure groups, and approaches these issues solely for the best 

interests of all the people in our country.

In addition to our publications, a million and a half listeners hear our daily 

radio program, “This Is Libe rty Lobby,” on 125 station s from coast to coast.

As a result of this wide, repre sentative con tact with citizens across the country, 

Libe rty Lobby is in a position to transm it the feelings of a large cross section of 

the American public which has no vested interests other tha n the welfare of the 

people as a whole.

As indicated in the enclosed Liberty Lowdown 102, “ Libe rty Lobby and Wa r,” 

which we ask be included in the record as part of this statem ent, Libe rty Lobby 

has from the very beginning opposed the Vietnam war "from a profound adherence 

to nationalism and hostility to internationalism .” We consider th at the U.S. 

should never have become involved militarily on the mainland of Asia, 9,000 

miles from our shores, jus t as Gen. Douglas MacArthur said. However, once 

we had, thro ugh incredible inep titude, become so involved, then the only course 

for th e U.S. was to win and get out, as we consistently advocated over the years.

Libe rty Lobby opposes blanke t amnesty to those who in our time of need 

dodged the d raf t or deserted the armed forces in recent years. Whether they were 

motiva ted by cowardice or desire to protest the war has no bearing on the granting 

of am nesty.

There should be no question abo ut prosecuting those who deserted the armed 

forces. These people committed illegal acts and should be prosecuted because they 

were well aware at the time they were committing illegal acts.

Another group requests amnesty. They are the ones who fled this country to 

avoid presecution and took up residence in a foreign land. They did so under 

their freedom to choose. They were free to return to the U.S. and accept the dra ft 

call, or refuse the dra ft and pledge their allegiance to some other country. They 

have placed their judgment above loyalty to America, and we see no reason for 

this group even to request consideration of anmesty.

A third group refused the draft to m ake a personal protest against the war and 

carried th eir case against the war by following the true course of civil disobedience 

and standing tria l for their act. This group has no need to request am nesty because 

they have followed to the end their objections to the draft.

Some 3 million men served honorably in the armed forces in Vietnam. About 

9,000-10,000 dra ft dodgers and deserters are under indictm ent or have been 

charged in criminal complaints, according to the Departme nt of Justice. The 

great bulk of deserters and draft dodgers, 30,000, are fugitives who can tur n 

themselves in and follow the procedure used by many others. Why change the 

law now to satisfy other fugitives from justice?

Many men would have preferred not to serve in the armed forces when called 

to du ty und er the draft, bu t the y recognized their moral duty and did serve their 

country. They further knew th at if they refused to accept the dra ft or fled to a 

foreign hideaway, they were violating the law and would be subject to punishment as prescribed by law. Liberty Lobby feels tha t those who violated the law 

should be trie d—each case individually. Perhaps the jury of peers should include 

retu rnin g POW’s and wounded servicemen.

Another group deserves mention: the more than 50,000 Americans who died in 

uniform to protect those 40,000 deserters now sulking in bitterness and frustration. The y would love to be able to return to this country.

As a final point, if President Nixon is found guilty of treaso n or a ny o ther crime, 

would this body consider gran ting him amnesty? We certainly believe this should 

not take place.

Thank you for this opportu nity to subm it our statem ent for the record.

[From Liberty Lowdown, No. 102, August 1971]

Lib er ty Lobb y and War

Liberty Lobby’s consistent opposition to the comm itment of American ground 

troops to the mainland of Asia, and hence the institu tion’s opposition to the Vietnam war since the beginning, has arisen from a profound adherence to nationalism 

and hostility to inter-nationalism.

Contrary to the politicians and the liberals, the position of Libertv Lobby has 

not been based on political considerations which vaporize anew with the adv ent 

of every dawn. On the contrary , history now vindicates Liberty Lobby, because
749

its position has been rooted in the deepest wellsprings of the American experience, 

as well as a general political philos ophy which is absolut ely stable and vali d for 

all time.

Merely pointing out that the U.S . should never have gotte n intertwined in 

the insoluble problems of Indo china is n ot enough. There is a lesson to be learned 

that is perm anently valid . If the death of 54,998 Americans in Vietnam has 

tau ght their countrymen the lesson t ha t d epar ting from nationa lism and ven turing 

into the quicksands of international meddling is disastrous, then the ir dea th has 

not been in vain. If America learns to mind its own business, and recognizes that 

the solutio n of misunderstood problems within America is infin itely more impor tan t to Americans than knowledge of the incomprehensible problems of aliens, 

then that simple lesson in san ity ma y put into motion a process that will in the 

end save America.

Lib ert y Lowdown expressed this pholosophy in its very first issue. (Feb ., 1963). 

Speaking of De Gaulle’s unexpected rejection of Britain as a Common Ma rke t 

partner, Liberty Lowdown obser ved:

“ Let us get our bearings and understand a central fact. From the p oint of view 

of an alert patriot, Ame rica has no real friends overseas, only interests. A nature 

view of foreign affairs demands a com pletely objective view of overseas personalities. Ame rica for too long has been victim ized by the venal propagandists who 

demand that eve ry foreigner be made into eithe r a dev il or a sain t by the press. 

Sane foreign policy categorica lly demands that the valu e for American s at all 

times is American national interest, not the welfare of a supposed “ frie nd, ” or 

revenge upon a supposed enemy.

Out of the hypocrisy, greed, stu pid ity, and political chican eiy that combine to 

form an internation alist foreign policy has come tot al ruin— ruin in the polit ical, 

economic, and cult ural spheres. As is pointed out in Lib ert y Lo bb y’ s new booklet, 

America First, this Natio n’s foreign adv enturing was the diseased child of criminal 

parents, not the noble crusade for perpetual peace and brotherhood it was touted 

to be. Exp loiting the natu ral gullibility of an unsophisticated American public 

unfamiliar with the complexities of the internatuion al jungle, the backroo m 

conspirators and in ternation al war criminals h ave ag gresively raped and plundered 

the world, using the wea lth and m anpower of America to do it, and masking their 

crim inality and the ir g uilt w ith a tinsel fa cade of altruism created by mendacious 

newspapers, corrupt preachers, bloated, tax-free foundations, and — yes, most 

certain ly yes— hired politicians.

THE FRAUD OF THE PRESENT

Today, liberal media make much of the Pentagon Papers, and work overtime 

to exploit these revelations to escalate the activit ies of those who aim to tear down 

the whole American society . These docum ents show that America was shanghaied 

into Vietnam by professional political tricksters. Th ey thro w a great suspicion on 

the credibility of the “ Gulf of Ton kin Incid ent.” Th ey show that the brutal 

murder of Ngo Dinh Diem and his brother by Kennedy’s CIA (which these same 

liberals praised at the time) was the fat al blow to national Vietnam , and was the 

very event which “ de-V ietnamized” the war.

These revelations are new only to the gullible victim s who have any faith in 

the so-called “ free press” of America. An y reader of Liberty Letter and Lib erty 

Lowdown should be prepared for them, because since 1963 L IB E R T Y LO BBY 

has— again and again — exposed the treasonous fraud of internationalism, and 

specifically our misb egotten Vietnam adventu re.

TONKIN GULF

In Sept., 1964, Lib ert y Lowd own No. 19 said:

“ To the casual observer the incid ent in the Gulf of Ton kin was merely a case of 

Unc le Sam fina lly getting ‘fed up ’ and puttin g the Red s in their place. A more 

mature observer would note that this came at a very useful hour for Pres iden t 

Johnson * * *.”

NGO DINH DIEM

Lib erty Letter No. 54 (June, 1965):

“ w h y choose b e t w e e n e v il s?

“ The recent dispatch of Marines to the Dominica n Repub lic is bu t another 

proof of the incompetence of our polic y-makers.
750

“It is not th at we are opposed to the action—under the circumstances, we 

support it—but more tha n one authority has sta ted th at the assassination of 

anti-C ommunist pro-American General Trujillo, which is the cause of all of the 

unrest there, was carried out by the State Department and the CIA, and we see 

no reason to doubt it.

“Likewise, the military action in Vietnam is the d irect result of the assassination 

of the heroic Ngo Dinh Diem and his brother. Suzanne Labin and other experts 

claim th at this assassination too, was carried out by the paid agents of the last 

Administration. We remember well, and with a sick feeling, how the liberals 

chortled w ith ill-concealed, sadistic glee at the grief of Madame Nhu at the time— 

and if you doubt it, go back and read the papers of the day.

“The trut h is, the Left has gotte n us into the mess we are in overseas, as 

well as at home. Every foreign problem we have, without exception, is because of 

the policies of disaster followed by the Roosevelt, Trum an, Eisenhower or Kennedy 

administrations, and we aren’t kidding ourselves to imagine th at there will be 

any difference under the new ‘anti-communist’ pose of Lyndon Johnson. In 

fact, there won’t be any difference until the voters clean house in Washington. 

We fail to see how fighting Communism in Vietnam can be as effective as fighting 

it in Cuba, or in Washington, D.C., or Selma, Ala. We can’t star t in Vietnam.’’

D E F E A T W AS T H E AIM FR OM T H E ST ART

It takes real will power for the observer to conclude anything else bu t th at 

American defeat was the aim of our intervention in Vietnam righ t from the star t. 

Added to the record of pure treason of the State Dep artm ent for the past 38 

years since the recognition of the U.S.S.R., any other conclusion is a mark of 

mental incompetence. But those who guide our destiny are not mental incompeten ts; on the contrary. With billions of dollars to spend on expert advice, intelligence a nd “think factories,” why is it t ha t they always do the wrong thing? This 

question is even more intriguing when it is recognized th at Liberty Lobby, 

operating on a budget of pennies as compared with the U.S. government, and 

without the huge international network of spies, agents, and experts purchased 

by the tax dollars of the suckers who pav for this treason, has been right and the 

government has been wrong all along. Here are some more quotes from previous 

issues of Liberty Lowdown:

“ [Libe rty Lowdown, No. 30 (Aug., 196 5)]

“The American people are in a mess in Vietnam, and their President is getting 

them in deeper every dav. * * * Not once has President Johnson stated th at

the American policy in Vietnam is to defeat communism. Not once has President 

Johnson stated or outlined a s trat egy for victory. And while escalating the war— 

he repeatedly assures our enemies th at we will negotiate “with any country—at 

any time.”

“I t is time for the American people to demand answers to questions, not 

tamely subm it to an irresponsible policy which can lead only to disister. The 

people have allowed the State Dep artm ent to give away Eastern Europe to the 

Reds. They have sat back and believed State Departm ent apologists when the y 

gave China to the Reds. They have wondered about the State Departme nt’s 

partnership with the communist assassin, Castro. They have puzzled over the 

State Department’s hostility to anticommunist coups in Latin America. They 

have even accepted the murder of Trujillo and Ngo Dinh Diem because the State 

Department assured them it was ‘best’ for the people of the Dominican Republic 

and Vietnam. After such a record it seems foolish to believe the promises and the 

statem ents of this same State Departm ent. . . .

“The strategy of the Johnson Administration in Vietnam is to fight a land war. 

The French tried this same tactic and brought in 400,000 men. They left Vietnam 

after suffering casualties of nearly 200,000. General MacArthur and other military 

experts have highly criticized the stra tegy of fighting such a war in Asia. . . .

“U.S. leadership will not listen to the men who know how to win—the military 

experts. They persist in neo-Korean policies th at will not allow military actions 

necessary for victory. They will not allow weapons to be employed th at could 

insure victory with negligible manpower loss. They will, however, sacrifice thou ­

sands of American fighting men as cannon fodder in their escalating ‘fight for 

peace.’ While our sons die in battle, the Johnson Administration allows our 

‘friends and allies’ to feed and supply the enemy. Rep. H. R. Gross (R-Iowa) 

says, ‘It is not widely known, b ut in 1964 more tha n 400 “free world” ships landed 

supplies at the port of Haiphong in North Vietnam, and it is predicted th at the 

figure for 1965 will be even higher * *
751

[Libe rty Lowdown No. 40 (Ju ne , 1966)]

“ A war, as Chesly Ma nly suggests, brings on a process of social disintegration 

and cult ural crisis and tends to break up existing political balances and create an 

entirely new status quo. This has the effect of stab ilizing the existing regime and 

stren gthen ing its totalit arian tendencies. In other words, during a war, inclu ding 

a fake one, foug ht for no valid reason (such as World Wars I and II) the voters 

will tend to accept the permanent militarizing of soci ety, even demand it; freedom 

and individual rights vanish to a dim memory and the power of the central 

gove rnment grows. War is the bigg est single cause of socialism. In the present 

case, a growing war will totally erad icate the presently -hopeful prospects for a 

resurgent American conservatism and make any though t of saving America hopeless. Finally , a war serves to add incident to the cons tant warnings we have heard 

from our propaganda ministers abo ut the ‘need’ for world gove rnment lest we are 

all blown to atomic dust.

“ Besides the Democrats, the Kremlin also gains by Ame rica’s involvement in 

Vietnam . The central fac t of world history since Ro ose vel t’s election in 1932 is 

that the ‘Am erican’ gove rnment will, at all times and at all costs, supp ort the 

foreign poli cy of the Soviet Unio n. The war in Vietnam is part of that 

patt ern * * *.”

There is something radically wrong with a system which can spawn and feed 

and tolerate an engine of treason and national dissolution within itself. How much 

longer Ame rica can exist even as a nominal nation under these circu msta nces is a 

dismal but necessary question.

L aw yer s C o m m it tee on Am er ic an P oli cy T ow ar d Vie tn a m— T h e C ase fo r

Amne st y

It is n ot surprising that th e Vietnam War, one of the m ost divisive in Ame rican 

history, has an afterm ath of continuing divisive controversy. Amon g these controversies is the issue of amnesty for those young men who unla wfully eva ded or 

deserted mil itary service.

The issue is raised by amnesty bills in Congress which hav e been the su bj ec t 

of heated debate. The fac t tha t the presidential cand idate s were forced to address 

themselves to the issue early in 1972 indicates the extent of public interest. Th e 

public interest must necessarily hav e arisen from the existence of a large body of 

public opinion favorin g amnesty. Thus, a Gallup Poll in June 1972 showed 36 % 

of the persons surv eyed favorin g amnesty for those who left the cou ntry to avo id 

the draft, and 60% opposing it. Amon g those in the same age group as the dra ft 

evaders, the opinion was eve nly divided. On Feb rua ry 29, 1972 Senator Edwa rd 

Ken ned y, whose Senate sub-committee was holding amn esty hearings, said, “ On 

eve ry college campus, the question of amn esty is one of the first a political leade r 

must answer.”

Bu t the wisdom of amnesty cannot be determined by a Gallup Poll. The str ength 

of democrac y lies in its ability to protect the rights of minorities and to tole rate 

dissent. Unfort una tely , much that we hear from the administration in opposition 

to amnes ty is based on emotion rather than ri ason or fact . War resisters, dra ft 

dodgers and de:erje rs who are lumped togeth r and classified as criminals, can 

more conv incingly be ridiculed for their “h gher mo ral ity” if the y are presented 

as a t.n_, group of cowardly traitors as Presid ent Nixon did when he referred to 

them .^s “ those few hundreds” who fled the country. The problem could no t be 

dismissed so cavalierly if the public were told t ha t the actual number is more n early 

100,000 t lan a few hundred and tha t many millions of Americans sym pathi ze 

with them in th eir opposition to the war.

Charles W. Colson, a former Presidential Counsel and spokesman for the 

Nixon administr ation on amnesty said:

“ While the deserters cite conscience as their motive, a closer analysis wou ld 

reveal that the y were simply laz y, or resen tful of their coun try as dic tat ed by 

the trendy opinionmakers, or that the y were cowards or that the y were sim ply 

incapable of main taining the grade-point averages sufficient to qualif y them for 

draft deferment. * * *

“ To gran t amnesty to these people would be to vindicate the moral position 

the y pretend to. * * * We shall never vindicate those who deserted their coun try, 

for to do so would be to dishonor the two-and-a-half millions who serve d their 

coun try with honor” (The Boston Globe, Feb ruary 19, 1973, p. 13).

A more rational solution to the problem would result if i t were appr oach ed with 

the widom expressed b y Professor Henry Steele Com mag er in his statem ent b efore 

a Senate Subcomm ittee hearing on amn esty on March 1, 1972. H e said:
752

“A natio n does not adopt imp orta nt policies—policies affecting the lives of 

hundreds of thousands of its young people—and affecting the whole fabrics of 

the social and moral order—out of petulance or vindictiveness. It bases its judgment rather on the interests of the commonwealth. * * * We should make our 

decisions on the questions—complex enough to be sure—of what appears to be the 

long-range interests of the nation .”

In our search for a rational approach to the problem we shall look, first, at the 

extent of the problem, then at the n atu re of amnesty, the precedents for am nesty, 

and the reasons for granting or denying amnesty a fter the Vietnam War.

THE EX TENT OF THE AMNEST Y PROBLEM

It is difficult to obtain reliably accurate figures on the n umber of draf t evaders 

or deserters to whom an amnesty would apply, bu t all of the estimates are high. 

The Depar tment of Defense figures indic ate th at the desertion rate in Vietnam 

may have been higher than in any other war in our history. Between July 1966 

and July 1971, 354,427 servicemen were administratively classified as deserters. 

In 1970 the Army had 65,643 deserters, with a rate of 52.3 soldiers per thousand, 

which was more than twice the rat e for the Korean War. For the year ended 

June 30, 1971 the rat e was 73.5 per thousand, the highest desertion rat e of the 

deserters were still at large as of September 1971.

Statistics on draft violato rs are less reliable and there are no official estimates. 

There are two general categories: (a) those who failed to register and (b) those 

who were called but failed to repo rt for induction. Since the ad ministration of the 

dra ft was in the hands of local dra ft boards, there was a lack of uniformity of 

procedures. Only after the sta te authorities failed to solve a case was it turned 

over to federal authorities for investigation or possible prosecution. Justice 

Departme nt stat istics indicate th at as of Jan uar y 1£72 a total of 6,091 persons 

had been indicted for Selective Service violations and ano ther 12,333 cases of 

possible violators had been repo rted to United States atto rneys. Of these, 4,201 

were fugitives. The tota l num ber of fugitives whether within or outside the 

country is, no doubt, much larger.

There are varying estim ates of the number of American you th who have fled 

the country because of the war. The Canadian government is reported to have 

estim ated th at from 70,000 to 100,000 Americans went to Canada because of the 

war. A much smaller number went to Sweden and other countries. The National 

Interreligions Service Board for Conscientious Objectors has published the 

following estim ates:

Exiled dra ft resisters and m ilita ry deserters_________________ 60, 000-100, 000

Resisters and deserters in military or civil prisons, on probation

or facing court action__________________________________ 10, 000

Resisters and deserters underground in the United Sta tes _____ 80, 000

Vietnam vete rans with less tha n hornorable discharges who suffer

handicaps in seeking employm ent_______________________ 300, 000

Civilians charged with anti-war a cts_______________________ (*)

1

 Unknown number.

* * * * * * *

to desert from the armed forces, (3) the provisions of the U.S. Code prohibiting 

the use of contemptuous words against the President and other government 

officials, and (4) the provisions of the U.S. Code prohibiting insubordination, 

disloyalty, mutiny, etc. by any member of the military forces. The amnesty 

provided includes the restoration of citizenship and property rights, the immunization from criminal prosecution, the expunging of records of violations and the 

grantin g of an honorable discharge to anyone who received a less tha n horonable 

discharge from the Armed Forces because of a violation of one of the laws for 

which amnesty is granted. In addition to the automatic amnesty, an amnesty 

commission is to be established with power to gra nt general amnesty to any 

individual who, during the same period, violated any other Federal, Sta te or 

local law, if th e commission finds th at th e violation was motiv ated by opposition 

to or protest against the involvement of the United States in Indo chan ia and the 

individual was not responsible for any significant property damage or personal 

injury to others.

The Koch bill would gra nt conditional amnesty. The condition would be two 

years of civilian service—service comparable to th at required of men classified 

as conscientious objectors. Those in prison would receive up to one yea r’s credit 

for the time of their incarceration.
753

Amnesty is typically gran ted as an act of sovereignty, for the benefit of the 

sta te and society, and is not regarded as a surrender to lawlessness. Thus the 

Abzug bill contains a declaration th at amnesty is a necessary measure for reconciliation after the cessation of military operations in Indochina. Just as criminal 

penalties are one method of dealing with violations of law, amnesty is a legal 

instrument for use in circumstances where “magna nimity will serve th e society’s 

interests bette r tha n punishm ent.” (J. Rich ard Newhaus, The Good Sense of 

Amnesty. Nation, February 9, 1970). In some cases amnesty has been offered 

to deserters to induce them to retu rn to the army. In others it results from a 

recognition of the fact th at sometimes it is healthier for society to forgive or 

forget offenses than to risk a continuance of resentment and hatred from within, 

ii* * * f

r o m the standp oint of the group in power, amnesties are politically 

expedient only when the regime is safe from further violence and when clemency 

may not be mistaken for weakness.” (Encyclopaedia of the Social Sciences, op. cit., 

p. 38)

Conceivably a state, th at is secure in itself, could decide on amnesty out of a 

recognition of its own p ast error jus t as a pardon is gran ted to a convicted criminal 

when subsequent evidence indicates th at the conviction was in error. Magnanimity 

and the admission of error are signs of stren gth and secu rity in a nation as well 

as an individual. In recent history Charles DeGaulle was capable of reversing a 

policy he deemed erroneous and after he resolved the Algerian conflict he granted 

general amnesty to most of those who had illegally resisted the French governme nt’s policies. None could interp ret it as a sign of weakness.

A M N ESTY P R E C E D E N T S

The earliest recorded case of amnesty is that granted to all citizens, by Thrasybulus, the Athenian general in 404 B.C. afte r expulsion of the Thirty Tyrants 

(who were excluded from the amnesty), in an effort to "erase civil strife from 

memory by the imposition of legal oblivion.” (Encyclopaedia of the Social 

Sciences, op. cit., p. 37). Th at amn esty is typical of many others through out 

subs equent history.

Among the amnesties in French history are th e “lettres d’abolition” accom panying a truce between the Armagnacs and the Burgundians in 1413, the Edict of 

Nantes issued by Henry IV in 1598 ending persecution of th e French Huguenots, 

Napoleon (s imperial decrees of 1802 and March 13, 1815, and the amnesties 

following the civil disturbances of 1871 and the Paris Commune in 1881, the 

amnesty of wartime deserters and military service evaders in 1919, th e amnesties 

of insurrectionists and communist agitators 1920-40 and those afte r World War II 

and the Algerian War. (Harrop Freeman, One Nation Indivisible, the Legal and 

Historical case for Amnesty, Arizona Sta te University Law and Social Order 

Journal, Fall 1971)

In England amnesty was granted in 1651 after the civil war and again in 1660 

after the restoration of Charles II. Again in 1747 an act of amnesty was passed 

to pardon those who had take n part in the second Jaco bite rebellion. After World 

War II France, Norway, Germany, Belgium, J apa n and the Netherlan ds granted 

amnesties to some who had been engaged in compromising activ ities. (Encyclopaed ia Britannica 1964 V. 1, p. 808)

There have been approximately 35 acts of amnesty in American history including those granted by the congress and the executive. While no form al amnesty for 

deserters was proclaimed after the American Revolution, no effort was made to 

punish them though the desertion rate was extrem ely high in Washington’s 

army. As President, Washington provided the first precedent for amnesty when 

he pardoned the participan ts in the Whisky Rebellion of 1794. He said, in an 

explanation to Congress:

“ Though I shall always think it is a sacred duty to exercise with firmness and 

energy the c onstitutional powers with which I am vested, yet my personal feeling 

is to mingle in the operations of th e government every degree of moderation and 

tende rness which justice, dignity and safety may permit” (Eichardson, Messages 

and Papers of the Presidents, V. 1, p. 276).

In October 1807 President Jefferson gran ted a full pardon to all deserters from 

the Army who would surrender themselves within a period of four months. Similar 

pard ons were granted by President Madison during the War of 1812.

The Civil War period was one in which the divisions in the nation, the rate of 

desertion and the incidence of draft evasion all resemble the current period. 

Indeed desertion from both the Union and Confederate armies was as high as
754

10%. The period was characterized by a series of amnesties by President Lincoln, 

President Johnson and Congress, directed toward deserters, political prisoners 

and to persons who participated in the rebellion. Lincoln stood firm for magnanimity against those who would be vindictive as did President Johnson after him. 

No leader of the defeated rebels was executed or brought to tria l for treason. The 

Fourteenth Amendment diaqualified those who had taken par t in the rebellion 

from holding Federal office but authorized Congress to remove the disability. 

After many special or private acts of amnesty under this authority Congress 

enacted a general amnestv law of 1872 th at removed the disability for many thousands of persons, and in 1898 a universal amnesty act removed all disabilities from 

all former rebels.

On July 4, 1902 President Theodore Roosevelt proclaimed amnesty for those 

who had participated in the Philippine Insurrection. There was no general amnesty 

during or following the World War I period though there were particular proclamations of amnesty affecting a small number of deserters and draft and espionage 

law violators. However, in 1933 President Roosevelt granted amnesty and restored citizenship rights to some 1,500 persons who had served sentences for draft 

and espionage law violations.

The desertion rate and draft evasion ra te in World War II was very low but 

after the war President Truman appointed an amnesty commission which considered individual cases and granted amnesty to some 1,500 violators. In December 

1952 President Truman issued proclamations granting amnesty to all who had 

deserted the armed forces since World War II and had been court-martialed or 

dishonorably discharged and to all ex-convicts who had served in the armed 

forces during the Korean War. There was no amnesty for deserters or draft evaders 

in the Korean War.

Thus, the civilized world has ample precedent for a policy of reconciliation, 

and in America, amnesty has an honored tradion. Is there any evidence in our 

history indicating th at a broad general amnesty now would make it more difficult 

for the United States to raise an army for another war? Professor Commager, an 

outstanding historian, said in his testimony before the Senate Subcommittee:

“ Such speculations are what Lincoln called ‘pernicious abstractions’; certainly 

Lincoln’s use of amnesty did not appear to have any effect whatever in late r 

wars.”

A R G U M EN TS A GA IN ST A M N ESTY

1. Those who violate the law must pay the penalty. President Nixon said, in his 

press conference on the subject on February 4, 1973: “ Amnesty means forgiveness. We cannot provide forgiveness for them.” He went on to say that the 

deserters and draft dodgers must pay a price and that the price is a criminal 

penalty, not “ a junket in the peace corps.”

Such a statement might be motivated by: (a) a belief th at strict discipline is 

necessary for military morale, for the success of future conscription or the preservation of the state; or (b) an attitude of vindictiveness; or (c) a shrewd assessment of the political benefits to be derived from a hard line position. The hard 

line position he took then and in the latter part of the 1972 campaign is different 

from his statements a year earlier when he said tha t he could be very liberal 

with amnesty once troops and POW’s were safely out of Southeast Asia. (Conversation with the President by Dan Rather, CBS Television and Radio, 

Janu ary 2, 1972). To a person with a vindictive nature, the very thought of 

anyone violating the law and not being punished is repugnant and in many 

cases there is more popular appeal to a vindictive or “ knee-jerk” reaction than 

to a more rational and objective approach to the problem. Charles Colson, for 

example, said:

"B ut is mercy warranted? This war was fought in the main by the poor, the 

minorities, the disenfranchised and those young working men and women who 

had yet to attain the upper-middle-class sophistication tha t sneers at love of 

country and takes all the nation has to offer while giving little in retu rn” (The 

Boston Globe, February 19, 1973, p. 13).

As for the practical reasons, there is no doubt justification for refusing 

amnesty during the war while men are being drafted, unless it is conditioned on 

volunteering for military duty. But after the war is over and the draft law has 

expired, there is no historical evidence to indicate tha t society would be harmed 

by a general amnesty.

2. Amnesty would be an offense to those who served in Vietnam, especially to those

who were killed, wounded or taken prisoner. This is a psychological reason that is
755

appealing to the average person who is sensitive to the injustice of allowing one 

person to escape pen alty while others suffer from their obedience to the law. 

Mr. Colson puts it this way: “ For each who w’ent to Sweden, ano ther went to 

Vietnam. And more than 46,000 lost their lives.”

However a more rationa l approac h is th at of James Reston, Jr. , a Vietnam 

vete ran himself, who describes this as pittin g victim s against victims. “ It is the 

Vietnam policy th at has made casualties and mercenaries and POW’s and jailbirds and legal evaders and exiles of an entire generation of Americans. They are 

all casualties. But now, one victim , the Vietnam dead or the Vietnam returnee, 

is used against another, the refugee.” (Universal Amnesty, The New Republic, 

February 7, 1972, p. 15.) Many other veteran s including some of the form er 

POW’s and also families of men killed in the war have expressed similar views, 

though it is n ot claimed th at mag nanimity is universal among them.

3. Amnesty would contribute to disrespect for the law and the breakdown of law and

order. Law and order has been such an emotional issue in recent years th at every 

politician is fearful of appearing to be “soft” on violators of the law. But the 

concern abo ut law and order has to do chiefly with violent crimes against person 

or property. Desertion and draft evasion because of opposition to the Vietnam 

war policy or opposition to all war are political crimes and are non-violent. 

Persons committing such offenses would, if their civil rights were restored, ten d to 

be a civic influence in our society a gain st violence.

Also, th at approach fails to take into accou nt the fact t ha t many of those who 

deserted or evaded the d raf t did so because they did not wan t to take pa rt in w hat 

they regarded as violations of higher, internation al law or moral law. They did 

not take their action out of disrespect for law.

4. To grant amnesty would constitute an approval, by the government, of the violations committed and the motives of the violators. While a nation could have a change 

of heart and approve acts which when committed, were violations of law, an act 

of amnesty does not necessarily signify approval any more t han a pardon signifies 

approval of the crime. It signifies “forgetfulness.” The violation stan ds bu t the 

pen alty is waived by the state. It would be a recognition th at under some circumstances reconciliation serves socie ty’s interests better tha n a strict enforcemen t of the law.

REASONS FOR GRANTIN G AMNESTY

Any decision affecting such a large segment of society as the amn esty issue does, 

should be made only on the basis of th e long range interests of the nation and after 

carefully considering the consequences. In this spirit, the following are some of the 

considerations th at should influence the decision:

1. Amnesty would help to heal the wounds of the war and to reestablish confidence in

government. The divisions in the nation caused by the Vietnam War have been 

wide and deep and are comparable only to the tremendous gulf th at separated 

people at the time of the Civil War. Presidents Lincoln and Johnson were both 

wise enough to see th at any att em pt to punish those who rebelled against the 

United States though technically guilty of treason or desertion, would be futile and 

self-defeating. It wras only through such a policy th at the nation was s tar ted on 

the long path of healing the wounds of war.

While the number of young people directly affected by the amnesty issue may 

be cou nted in the hundreds of thou sands, there are many millions more, including 

distinguished and respected leaders in all walks of life, who have opposed the war 

policies of the government and would be sym path etic with these young people. 

A policy of vindictiveness would only alienate further this large segment of 

society, which had lost fait h in our government. A policy of amnesty would 

con trib ute to a restoration of th at fa ith.

2. The nation would benefit by bringing back into useful citizenship, youths who

are in exile or underground. Historically our nation has been t he refuge of thousands 

of people who fled E urope to escape oppression, injustice, tyr anny and military 

service. These people an d their children have included some of our m ost illustrious 

citizens and have contributed greatly to the growth of the natio n.

Now, the tables are turned and we find many of our finest youth estranged or 

in exile for reasons similar to those th at brought an earlier generation to our 

shores. Rep resentativ e Bella Abzug said in support of her amn esty bill:

“It is an unprecedented fact t ha t this county has lost to self-exile, an enormous 

num ber of th e finest, most conscientious, most creative young people. One of the 

most important purposes of any amn esty measure must be to bring these exiles 

home, so they can lend their energies to rebuilding the nation * * *.”
756

If these exiles are brought back it would also end the emotional and economic 

suffering of the families from whom they have been sepa rated. The nation as a 

whole would benefit tremendously if these thousands of young people could be 

reintegrated into our society.

3. Those who refused to go to war may have obeyed a higher law or standard of

morality than those who obeyed their government. Opposition to the Vietnam war 

became so widespread before it ended th at scarecly anyone fully supported it. 

Some opposed it on the basis of political policy, some on economics or military 

policy , some on th e basis of morality and a su bstantial body of internatio nal law 

and constitutional law experts opposed it on the basis of legality.

The U nited States was accused of violating its commitments, in th e UN Charte r 

and other treaties, to refrain from the use of force in internatio nal relations. The 

manner in which the war was conducted may have violated the laws and rules 

of war and the various Hague and Geneva Conventions. The United States was 

at least partially responsible for the violation, by South Vietnam, of the Geneva 

Accords of 1954. There is sub stantial autho rity to the effect th at the President 

exceeded his constitutional powers in more than one respect during the course of 

the war, and the means by which congress was induced to pu t its blessing on the 

war b y adopting the Gulf of T onkin Resolution has been characterized as frau dulent. The case of illegality need not be proven beyond a dou bt to make the point 

th at the legality of our government’s actions was highly controversial.

Norm an Cousins in an editorial entitled “Amnesty for Whom?” makes the point 

th at the war makers need amnesty a t least as much as the war resisters. He said:

“I t takes an ac t of will rather th an of logic or conscience to say t ha t the Nuremberg precedents have no relevance to the Vietnam War. The official arguments 

used originally to justify our actions in Vietnam have long since been refuted—not 

just by the revelations of the Pentagon Papers b ut by the open course of events. 

The record as it now stan ds points to sub stan tial illegality and wrongdoing” 

(World, April 10, 1973, p. 14).

Atte mpts by the government to punish deserters and dra ft evaders would only 

raise anew the legality as well as the morality of the acts of the government in 

this war.

Professor Commager tak es a similar view from the standpo int of public opinion 

rather t han legality, in the following st ateme nt:

“M ay not we say th at th e majority of those who have deserted or gone un derground merely took ‘premature ly’ the position which the majority of Americans 

now tak e; more th at the y took prem aturely the position which the Government 

itself now takes—th at the war was and is a mistake, th at we should extricate 

ourselves as expeditiously as possible * * * . May not the deserters and evaders 

claim th at their error is to have been ahead of public opinion and of Government 

policy, and th at it should be easy to forgive the error?”

5. Attempts to punish will be futile and counterproductive. The imp ortant lesson 

th at the natio n should learn from this war is th at no war or other endeavor requiring a national commitm ent can be successfully prosecuted with out th'e 

enthusiastic support of the citizenry. Time and again government spokesmen 

blam ed the dissenters for the failure of the military policies. The real mistake 

however was in attemp ting to force on the public a war th at did not have general 

pop ular supp ort such as the support for World War II. To t ry to punish the dissenters after the war would only compound the error and would teach no one a 

lesson.

A subsidiary point is th at the jails are not nearly big enough to hold all who 

might be subject to the charge of desertion or evasion and the cost of incarceration 

would be astronomical.

Amnesty is th e only realistic answer to the question of how to tre at these dissenters. The nation would do well to follow the advice of Lincoln in striving to 

bind up the nation’s wounds, with malice toward none a nd with charity toward all

Sta t e m e n t o f U n it ed Sta tes N a tio n a l St u d e n t Asso c ia tio n-N a tio n a l

C a m pu s All ia n c e for Am nest y

AMNESTY

The war in Indochina has left scars and open wounds still festering here in 

America and abroad. It has ripped the basic fiber of our country and thre atens 

us with unending repercussions if we fail to confront the problem it has created. 

We must deal openly and quickly w ith th e war and its effects to ensure a beneficial 

reconciliation of our nation ’s citizens.
757

Foremost among these problems is the f act tha t upwards of 500,000 Americans 

are presently liable for, or have received, some kind of criminal p ena lty as a result 

of their resistance to the war. For these individuals, as for the people of Southeast 

Asia, the w ar continues. The war resister rem ains in prison, living unde rground in 

the United States, exiled abroad, or perm anently stigm atized by a less-thanhonorable discharge.

The United States National Stu den t Association thro ugh its project the 

National Campus Alliance for Amnesty, has joined with other student and amnesty 

organizations in working towards universal and unconditional amn esty for all 

war resisters. We speak as studen ts and as young people because we strongly 

believe that a you th perspective should be brought to bear on any discussion of 

amnesty. It has long been recognized th at the stud ent is the conscience of society. 

We have lived with the war for almost the entirety of our lives. It was ourselves, 

our brothers, and our friends who fought this war and who resisted this war. We 

feel, therefore, th at we have a different perspective on the issues than any o ther 

group involved. The majority of all Vietnam War resisters are members of our 

generation, and we feel it to be our responsibility to see th at our brothers and 

sisters are tre ate d fairly.

NS A does not pretend to represent all of America’s studen ts, nor can any one 

organization. We are however, the oldest and largest studen t association in the 

country, representing over seven hundred (700) colleges and universities across 

the country. NSA has long been in the forefront of the movement for peace and 

justice, organizing much of the campus peace movement. Even before the wars 

end we took a stand for universal and unconditional amnesty, as can be seen 

our testimony before the Senate Committee on the Judiciary, Subcommittee on 

Administrative Practice and Procedure, Hearings on Selective Service and 

Amnesty, held Feb. 28, 29 and March 1, 1972. At the 26th National Stu den t 

Congress of the USNSA, held Aug. 19-25, 1973 in Miami Beach, Florida, the 

following resolution was passed, reaffirming our stand on the amnesty issue.

R ESO LU TIO N — AM N ES TY

(Submitted by Tim Higgins)

Facts

For over a decade, the United States has been engaged in an unconstitutional, 

immoral, and politically and humanly disastrous war in Southeast Asia. Because 

of the military, financial, and political supp ort of the United States government, 

the war continues even now. The war produced uncounted victims in Indochina, 

including not only those millions killed, wounded and dislocated, bu t also the 

200,000 political prisoners in the jails of our pup pet government in South Viet 

Nam. Among the American victims of the war have been the GI ’s who fought, 

were tak en prisoner, were wounded, and died, as well as those who refused p articipation in the war. Tens of thousands have been subjected to criminal or administrativ e punishment and have suffered prison, underground life or exile for their 

refusal to kill or be killed in th at catastrop hic and unjustifiable war.

Justice and the need for a reconciled society th at can work for social justice 

require th at the war resisters be regarded, not as the criminals of the war, bu t 

as Americans who acted in the best trad itio n of courageous civil disobedience 

and political morality. This country should declare a universal and unconditional 

amnesty for the half million or more men and women who have suffered or face 

penalties for their resistance to the war, the draft, and the m ilitary.

Declaration

USNSA will continue to support the demand for a universal and uncond itional 

amnesty for—

All military resisters (including “ deserters”) and dra ft resisters, whether 

in exile or underground in the U.S.;

All persons who, because of their opposition to the war and the military, 

have been adm inistratively punished, convicted by civilian or milita ry co urts, 

or are subject to prosecution; and

All veterans with less-than-honorable discharges and will play a major 

role in programs and projects to achieve th at objective.

Mandaie

USNSA calls for a universal and unconditional amne sty for all war resisters, 

including dra ft violators, deserters, those convicted by courts martial of pure ly 

military offenses, veterans with less-than-honorable discharges, and civilian 

protesters against the war.
758

USN SA will—

(1) Join the Nationa l Coun cil for Universal and Unco nditional Amnesty 

and work with other organizations to adv oca te such an amn esty enac tment 

at the earliest possible time;

(2) Coop erate with and encourage stud ent organizations to particip ate 

in Amn esty Week 1973 (Octob er 14 to 22); and

(3) Call upon resource specialists and speakers to educate the Am erican 

people, especially those on campuses, abou t the struc tures and ins titu tions 

that create d the war in Southeast Asia and to mobilize them to work for a 

universal and uncon ditional amnesty.

Wha t we are askin g is that we, as a nation, begin to recognize the leg itima cy of 

beliefs which run counter to our gove rnment’ s sta ted polic y. It is time tha t we 

recognized tha t the mark of a mature nation is not infa llab ility, but the ab ility to 

recognize, tak e respo nsibility for, and correct its mistakes. We can ill-afford to 

waste more time arguing abo ut the rightness or wrongness of individual responses 

to the war if we are to heal those wounds caused b y it. Over s eventy percent of the 

American people now belie ve that the war in Indo china was, from its inception, a 

serious and costly blunder. Wh y is it tha t we still refuse to end the war for those 

who led us in the struggle against it? For the American people there is nothing to 

be gaine d by main taining or worsening the divisions caused by the war. On the 

con trar y, we only s tand to lose. It has long been understood that a nation’s most 

vit al resource is its you th. We can face no greater crisis or shortage than a lack of 

this irrep lacable resource. By failing to heal the divisions caused by the Vietnam 

traged y, we deprive ourselves of almost one million of Americ a’s most concerned 

and c omm ited you th.

To g ran t a general amn esty, to say t ha t those who resisted the war in Indochina 

acte d out of conscience, is not to say that those who fought and died in Vietnam 

did not sim ilarly act out of conscience. We recognize and respect the int egr ity of 

the ma ny who chose to fight as the only justifiab le course of action. Bu t we beleve 

that those who chose to resist acted with equa l justification.

We say th at the people who resisted the war did n ot comm it any crime. Th ey did 

only what we all hav e been tau ght from childhood, th at is to follow one’s conscience, (even Wa lt Disn ey through his character Jiminey Crick et told us, “ Let 

you r conscience be your guide.” ) We do, therefore, endorse universal and unconditional amnes ty for a ll war resisters.

Stat eme nt op Glenn R. Siegal, R epresenting Vietnam Veterans for a

J ust Peace

Am nesty for those who evaded the draft or deserted the mi lita ry is a sub ject 

which has been debated for years, as American involve men t in the Vietnam war 

gra dually expanded and then drew to a close. Ra the r than being a simple issue, 

amn esty, especially for those of us who served in Vietnam is a very complex issue 

and requires a good deal of thought before a decision can be reached.

When W J P testified before Senator Kennedy ’s subcomm ittee in 1972, we 

sta ted our belief that Ame rica is a compassionate nation. We stated that after the 

las t American combat soldier had returned; when all of our PO W’s and M IA ’s 

were returned aliv e or fully accounted for; when the problems of the returning 

veterans who had serve d honorab ly were faced up to and solved ; then there would 

be ample time to consider the inconvenience to those who chose self-exile rath er 

than service. At a time when some 1400 Americans are still listed as missing in 

actio n, and in spite of the Paris agreem ents, the communists refuse to cooperate in 

inv estigating the status of these men, we would prefer to del ay any discussion of 

specific solutions to the issue of amn esty. How ever, since the issue has been 

bro ugh t before this committee, we will comment on the various aspects of amnesty.

There are two words which ine vit ab ly come up in any discussion of amn esty — 

guilt and mor ality . The argument used by the exiles and their allies in the media 

is th at America is guilty of cond uctin g an illegal, immoral war and therefore the 

evad ers brok e no real laws by refusing to serv e in it. W J P rejects this attem pt to 

tran sfer the guilt from those who violated the law to the nation as a whole. When 

a law is on the bocks it remains in force until it is removed. In a democratic 

society one is free to break any law he wishes, but he must b e prepared to answer 

for his actions. Throughou t all the years of the war, the selective service laws were 

not struc k down by th e courts, nor was the war ever declared illegal. The Congress 

had numerous chances to legis late an end to our involve men t in Vietnam bu t
759

never did so. Laws are not meant to be broken. They are meant to be obeyed or 

changed. Those who violated the laws and fled the country committed illegal 

acts. If they wish to rationalize their conduct by blaming America for what they 

did, that is their business. But we as a nation cannot remove the guilt from their 

shoulders and place it on ours.

The second word is morality. Of all the statements made about our efforts in 

Vietnam, probably the most commonly uttered was that our involvement was 

immoral. There are two points we want to cover regarding morality:

First, to listen to the exiles tell it, they were all followers of a “higher morality” 

than the rest of us. T hey claim to be disciples of Ghandi or King. These gentlemen 

taught that man has an obligation to not obey an unjust law; that the individual 

must decide which laws his conscience would allow him to obey. Of course, when 

Dr. King chose to break the law he made a point of paying the penalty. The difference between the “ teachers” and the self-proclaimed disciples is that the latter 

were unwilling to pay the price of their actions. Compare the draft evaders with 

the true conscientious objectors who took their stand and then either went to jail 

or performed noncombat tasks in the military. Certainly the CO’ s showed the 

sincerity of their morality, whereas the draft evaders allegiance to the “ higher 

morality” seems rather shallow.

Second, what standards are used to determine the morality of Vietnam? If you 

criticize one side as immoral, then you are, by inference, condoning the other side as 

moral. Throughout the war the United States and our allies have been attacked for 

immoral/inhuman conduct. The anti-war groups talk of saturation bombing and 

cite My Lai as proof of their contentions. We must point out that no army in the 

history of mankind ever fought a war with so many restrictions on who it could or 

could not shoot at.

When I was at Thien Giao hamlet we came under a mortar attack . From an 

observation tower we could see the mortars had been placed in the marketplace 

of a neighboring hamlet. Instead of calling artillery or air strike on the enemy 

positions, we had to wait until daylight and then move troops into the hamlet. The 

enemy, by this time, had already moved on. Our delayed response was done to 

avoid any chance of hitting civilians. This was typical of the policy set down by the 

US Command in Vietnam. Even during the so-called carpet bombing of Hanoi, 

our planes had to make their attack runs from a certain direction all the time to 

minimize the possibility of hitting civilian targets. The North Vietnamese knew 

this and lined the approach corridors with anti-aircraft weapons, resulting in a 

high number of US casualties and POW ’s. The point is that we bent over backwards to avoid inflicting civilian casualties, even to the extent of takin g 

unnecessary friendly casualties.

Contrast this supposedly immoral and inhuman attitude with the deliberate 

terror tactics of the enemy. The murder of over 5,000 in Hue was an example of 

Hanoi’s “ peoples justice” . At Dak Son, the North Vietnamese used flamethrowers 

at point blank range to kill 250 Montagnard tribesmen— none of whom was 

armed: At Phu Tanh, the communists murdered over 100 civilians. At Due Due, 

the North Vietnamese threw hand grenades into the Buddhist temple and orphanage, killing 15 children. A t Tam Hung the North Vietnamese set fire to the hamlet 

aid station and then shot down the 2 nurses and twelve children inside as they 

tried to escape. Just this past week 32 children were killed when the North Vietnamese mortared their school in My Tho. There are few families in South Vietnam 

which have not had a relative kidnapped or murdered b y the communists.

For us, My Lai was an isolated instance in direct violation of our stated policy. 

For the enemy, murder and terrorism are every day occurences—part of their 

widely stated tactics. Instead of being court-martialed for murder, the North 

Vietnamese Lt. Calleys are rewarded for their heroism and called heroes of the 

revolution.

Those who cried “ American immorality” and fled rather than serve have, 

directly or indirectly condoned the tactics, methods, and goals of the communists. 

Their actions would be similar to refusing to fight the Nazis because of the “immoral” conduct of the Jews of the Warsaw Ghetto during their uprising. We 

believe that those who have, by one means or another, condoned the actions of 

the enemy in Vietnam, have forfeited any claim to morality as a lever to gain 

amnesty.

What motivated these men to flee their country? To a man, they all claim they 

were motivated by sincere and long held principles of religion and/or pacifism. 

This is simply not true. Those with sincere beliefs applied for CO status. I served 

with two of these men in Vietnam (both were medics) and I have a great deal of 

respect for their convictions and their courage. As for the contention that only
760

the rich or well educ ated could win CO status, one of those two men dropped out 

of high school and was by no means an intellectual. How ever, his objec tions to 

war— all war— were formed many years ago, not at the moment he received his 

dra ft notice. By their own admissions, most of the dra ft evaders made no attempt 

to gain CO statu s. Those who made no attem pt to work within the system have 

no righ t to criticize it. The fact is that most of these men ran for reasons of convenience rath er than conviction. Now that the war is over, the y want to return 

as if n othing had happened. To le t them back , on their terms, would not only be a 

moc kery of the two and a half million who served in Vietnam , bu t also of those 

who had the courage to stay within the system and honor their beliefs.

Thu s far we hav e not mentioned deserters. W J P is totally opposed to any 

form of amnesty for deserters. Th ey are par t of the mil itar y and must be handled 

by th e m ilitary . We belie ve that desertion is a serious crime. Historically, deserters 

have ranked below only murderers and child molesters as undesirables. The 

deserter to ok an oath, then violate d t ha t o ath and turne d his back on his comrades. 

It is argu ed tha t deserters were from the “ lower” classes— poor, mino rity, etc. 

Un fortun ately, there has been no proof to back up this claim, only e mp ty rhetoric. 

It is argued that, being lower class indiv iduals, the deserters were not able to 

form ulate their anti-war views until aft er they were inducted. We find it almost 

inconceivable that in view of the saturation coverage of the war by all segments 

of the media, that there could be people who had not formed some kind of opinion 

by the time the y reached 17 or 18. One would have to be an illit erate hermit not 

to have been exposed to the war and all its suppose d horrors. Even those of us 

who are opposed to amn esty fo r deserters give them credit for at least a minimum 

of intelligence.

As with dra ft evaders, it is claimed th at the only reason the deserters ran away 

is for that of sincere objec tion to the war. This is the least accepta ble argu men t 

of all. The Defense Departme nt has issued figures showing o nly a small perce ntag e 

of deserters were motiva ted by opposition to the war. Proponents of amnes ty 

make a lot of noise say ing these figures are incorrect, bu t here again the y fail to 

produce an y evidence to back up their claim. After I returned from Vietnam, I 

served for 16 months as a Basic Trainin g Company Comm ander. Ev ery eig ht 

weeks we received 200-250 trainees for their initial milita ry training. Each cyc le 

there would be a handful (1-5 ) who went AW OL and remained absen t for 30 

days, thereb y becoming deserters. No t a single one deserted for any anti-war 

reason at all. Th ey left because their girl friends were preg nant, their wives were 

sick or running around, the y were homesick, the y couldn’ t maintain their narcotics 

habit, or they were in trouble with the military (assault, theft, selling narcotics , 

etc.). It is interesting to note that over 95 % of these men who deserted were 

volun teers, not men who had been drafted.

An illus tration of why we don’ t believe the sincerity of the deserters, was the 

Ar my Cap tain, a West Poi nt grad uate, who served 3 years in German y bu t 

deserted to Sweden when he received orders to Vietnam . Isn’ t it strange how 

rap idly he developed “ sincere objections” to this particu lar war? We believe this 

case is typic al of many deserters— as long as the y were rel ati vely safe and secure 

the y went along with the syste m. Only when their orders for Vietnam arrived did 

the y suddenly become conscien tious objectors. This sele ctive objection has nev er 

been recognized by the United Sta tes and we don’ t beli eve we should start to do 

so now.

As we stated, America is not a natio n withou t compassion. Some of the exiles 

were m otivat ed by sincere and honorable reasons. For these few, Vietnam Veterans 

For a Just Peace supports the concept of a conditional, case-by-ca se amnesty. 

We would endorse the principles offered by Represen tati ve Rob ison — set up an 

amnesty boar d similar to the one set u p by President Tru man after World W’ar II . 

It might be feasib le to set up such boards in each sta te and have the national 

board act as a Cou rt of Appeals.

We believe that the board(s) should be guided by the most recent Supreme 

Court decisions regarding the grantin g of conscien tious obj ecto r status. Th is 

would insure fairness to those who might hav e won CO status if the more liberal 

Court decisions had been in effect at the time of their cases.

Thos e who wish to apply for amn esty and present their case (with counsel if 

the y desire) should be allowe d to re-enter the country to make their prese ntations 

withou t fear of apprehension. (No te: This applies onl y to dra ft evaders, not 

deserters.) If the board rules aga inst them, the y ma y either return to their plac e 

of exile or remain to face wh atever legal proceedings ma y occur.

Rec ipie nts of amn esty must agree to and perform a specified altern ative serv ice 

for a designated period of time— we suggest 6 months to 2 years which would
761

correspond to the military terms of enlistment. Upon completion of this service, 

their records will be cleared and full rights of citizenship will be restored. The 

service must not be of a political nature— such as organizing strikes and demonstrations, but rath er must be non-p olitical and non-ideological.

For those curr ently serving prison sentences for violations of the dra ft laws or 

who hav e completed such sentences, the time alre ady serve d would be credited 

towards the service requirement. Here again, their records will be cleared and full 

citizenship restored.

Lastly , we wish to comment on proposals that those who received less than 

honorable discharges be given a blanke t amn esty — that their discharges be 

upgra ded to honorable. We oppose this idea most stro ngly . Of the more than 

6 million V ietna m-er a vetera ns, more than 90% com pleted their mi lita ry oblig ation 

in an honorable fashion. Thes e men earned their honorable discharges and the 

benefits which go along with that service. Those who received less than hono rable 

discharges were all warned from their first da y in the mil itar y of the dangers of 

not earning an honorable discharge. Most of these men were discharged fo r 

obvious reasons— theft, AW OL , narcotics, etc. To attem pt to equate their serv ice 

with ours would be the ultimate insult to millions of men who served hon orab ly 

and proudly. We earned our rights to VA benefits the hard way. An y kind of 

upgra ding of these less than honorable discharges would be a disservice to all 

veterans — past, present and future.

In conclusion, Vietnam Veterans For a Just Peace reje cts the idea of a bla nk et 

or uncon dition al amn esty. We do support a case-by-ca se review to enable thos e 

few who deserve amnesty to return home again. Our position is not one of vindictiveness towa rds those who fled their responsibilities. We belie ve that in return 

for the man y benefits bestow ed merely by the priv ilege of being born in this 

country, it is not askin g too much for some form of serv ice in return. Those who 

were not and are not willing to perform this oblig ation of citizenship can become 

permanent residents of some cou ntry which won’t ask anyth ing of them.

Ob ser v a tio n s on t h e D r a ft, t h e W a r, an d t h e N ati on

(By Gerald Ciarpelli, Vietnam veteran)

One yea r afte r the end of hostilities between the United Sta tes and North 

Vietnam the question of amnesty has resurfaced, this time within the halls of 

Congress. It is not an issue tha t has lain dorm ant. Even during the peak years of 

the war t he question of amnesty for those who either refused to serve or deserted 

becam e a topic that eve ntu ally would have to be settled. The decision-making 

process must now move forward quickly. Americans are suffering from a selfimposed exile which demands a poli cy decision to term inate this war related 

matter. Regardless of the final outcome these Americans must know wh at th e 

future ma y hold for them within the Unit ed States.

Can the nation now demand punishmen t for those who refused to par ti scipa t 

in the war, when American public opinion forced an end to United S tate s inv olv ee 

ment? If gove rnment policy was in error, then we must now question who wa - 

act ually guilty of violating the laws of hum anity. Is it the Execu tive Branch, 

which through deceit and the falsification of docum ents increased troop com ­

mitments and gained Congressional approva l? Are not Mssrs. Mc Nama ra, Bu ndy, 

Rus k, Laird, Richardson, Kissinger and Pres iden t Nixon gu ilty of cons piracy, 

in their atte mp ts to withhold facts and information? Was the secret bom bing 

and invasion of Cam bodia legal? Thes e questions must be answered before deter ­

mining wha t laws or provisions are needed to settle the amn esty issue. We can not 

punish those who refused to par ticipate in illegal act ivit ies, on the con tra ry, 

the y should be awarded for th eir vision and moral commitm ent to the preservation 

of human life. A natio n in search of a scap egoat must look inward when pla cin g 

blam e or fault, not outw ard toward those who had less to do with a misguided 

polic y than any other group of citizens.

The executive branch must initiate a policy which will deal as fairly with 

evaders and deserters as it has promised to deal with Lt. Calley and in th e manner 

it has dealt with Gen. Lave lle. The first step should be allowing those outside 

the cou ntry to return withou t the threat of imprisonment. Can a nation, where 

an individual who has been conv icted of murdering twe nty -tw o men, women, 

and children, declared to be no threat to society and ultim ate ly released on bail, 

be fearful of indiv iduals who refused to kill? While the decision to gra nt amnesty 

31- 658 O— 74-----50
762

is debat ed, should not the walls keepin g these Americans out of their cou ntry 

be removed. Th e mil itary question of effectiveness with such individuals must be appraised in terms of com bat readiness. Were the Armed Force s better off withou t those who would question orders and refuse to kill? Surely an effective fighting machine has neither the time nor the cadre to explain p olic y and its implementation. Thos e who deserted the Services were potential risks to a unified stren gth. The motiva ­ tion for desertion, militarily, is of little importance; however, the consequences to the unit and the individuals opposed to the war is of utm ost importance. Th e psych ological effects of forced mil itary particip ation would hav e reduced e ffe cti ve­ ness and increased mental disorientation. Thi s would hav e been a danger to all 

who served , not jus t the individual questioning his participation. The agrum ent is often raised tha t to grant amn esty to those who refused to serve their country would be an insult to those who fought and died. The real insu lt is inflicted upon the individual who must listen to these abbe ratio ns of logic. None of the men who deserted or evaded the dra ft were responsible for an y wounds or fatal injuries received by American servicemen. The agru ment could be reversed, that if more had listened to the resistors more men would be ali ve tod ay. The time for brow -beating has passed. Thos e who fought and died did so either throu gh conv ictions of righteousness, ingnorance or fear of prosecution. Can we prosecute others whose convictions led them to an opposite position? There is no judicial method, ye t devised, that can compensate for lives lost via prison sentences. If evasion and desertion are punishable then so should fault y 

adv ise and policy, if the lat ter is legal then so should the former. Selective Service argues that general amnesty ma y induce other young men in the future to evade mil itar y service, but there is no historical precedent for such an assertion. From the Revolutionary War to the Civil War amn esty had been a policy designed to reunify the tattered segments of the populace. President Jackson deviate d slig htly from other presidents, he wanted the assurance that evad ers of militar y service would never serve. Twentieth century policy has cons isten tly demanded imprisonment for deserters and dra ft evaders. Howe ver, the wars which the United States found itself engaged in were cons iderably more popular. World War II took on the dimensions of a modern Crusade, Vietnam was a crusade for all the wrong reasons. Finally , with regard to Selective Service, how easy it is for old men to decide which you ng men shall live and die, who shall serve and who shall receive deferments. Is not a medical deferment, created by an overdose of sugar cubes or a fin gerprick of blood dropped in a urine sample, a form of dra ft evasion? This is the worst typ e of evasion because it has no moral conviction attach ed to it most of the time, it is simply an act of cowardice. It is these same old men who handed down educational deferments while poorer citize ns who could not afford college costs or meet entrance requirements were drafted. It was these men who made boys into My Lai murderers. Th ey changed boys , with their thoughts of life, into mechanics of death. Bu t worst of all the y stole two years of life and created veterans. Veterans who now are unemployed, hospitalized with inad equate services, or receiving benefit checks that purchase less goods and services each year. If the futu re is laden with dra ft evaders or deserters it will be due to their revie wing the status of tod ays veter an. With the end of the war a period of rebuilding American soci ety must begin. The time has come to set-aside the patriotism to replenish the wounds of the American conscience. The test of freedom is upon us. Can we graciously accept those who left the country? If the answer is no, then perhaps we have lost sigh t of our purpose. Freedom is accom panied by the alte rnative s to serve or not to serve, to say yes or no, to be free in action, which penalizes no other indiv idual rights, with the knowledge that judicial punishmen t for the action shall not 

be forthcoming. Consideration must also be given to the families whose sons hav e either evaded the dra ft or deserted. Th ey are suffering a fat e worse than that of convicted prisoners family. The con vic t can hav e visitors and in most instances freedom within a specified period. Those who left the cou ntry hav e no possibility of parole from the scrut inizing eye of the Customs Service. No agent will turn his or her head from the fug itiv e list regardless of the years in exile. For some it has been 

over eight years and still there is no hope in sight. Ra ther than waste funds on prosecutions or service projects for deserters or evaders, the funds would be better spent to bolster aid to those who did serve. Bla nket amnesty is necessary, for those who deserted or evaded the draft, to reunify a country ripped bv war, tom by scandal, and tattered by a lack of confi­ dence in public officials. No greater task faces the natio n than the reunification 

of an alre ady segmented soci ety, let tha t task begin now!
763

A Catholic Worker on Amnesty

If we a re to hope th at one day we will tur n from the works of w ar toward the 

works of peace, there mus t be a n amne sty.

The Catholic Worker embrac es nonviolence as a way of life. It a ctively opposes 

all war and the prep arati on for wars in any form. It att em pts to live the Gospel 

message of simplicity and personal responsibility thro ugh the daily practice of 

the works of mercy. From this basis the Catholic Worker opposed the Vietnam 

was and encouraged those who refused to par ticipate in it. Similarly, the Catholic 

Worker calls for amnesty as a work of mercy and a means of reconciliation. It 

sup ports universal, unconditional amn esty for those imprisoned, in exile, or in 

oth er ways suffering hard ship as a resu lt of opposition to the w ar in Indochina.

In a literal sense, amnesty does not mean forgiving bu t forge tting. Those who 

in conscience resisted this war do not need to be forgiven for any wrong deed. 

Their cond uct serves as an example to the com mun ity of th e pr imacy of conscience.

In ano ther sense, however, mu tual forgiveness is a n essential eleme nt of reconciliation. At the heart of the ma tter , we are all responsible for this war. Besides, 

the enormous human suffering in Indochina, this war has produced a division in 

our own s ociety unparalleled since the American Civil War. Amnesty is an indis ­

pensable s tep towards the healing of these wound s a nd the re stori ng of a common 

unit y. To appo rtion various degrees of guilt now would violate the spirit of am ­

nesty and only widen the divisions wrou ght by this war.

While we call for an uncon ditional amn esty (witho ut any man datory requiremen ts for alte rnative service ), we rem ind individual s of th eir respon sibility to the 

whole comm unity to “walk the extra mile” by perform ing the works of mercy 

as a service to this community.

Litera lly and historica lly, amne sty is an official forg ettin g of those legal offenses 

in opposition to war. In urging th at these actions be inte ntionally overlooked, we 

do not inten d th at this war and its consequences be forgotten. While calling for 

an amne sty we acknowledge th at th ere is still no peace in Indochina.

This war continu es to violate a basic premise of our religious faith: th at, as 

children of God, we are all one, our hum anity is indivisible. As one person suffers, 

is imprisoned or exiled—we are all the less. Amnesty is a small bu t necessary 

beginning to the building of peace and a re-cognition of our oneness.

Michael De Gregory.

A Statement in Favor of U nconditional Amnesty T o Be Presented Before

Congressional Hearing March 7, 8, 1974

For more tha n twe nty years, the war in Sout heas t Asia has divided the world 

and divided this c ountry. Officially, the war has ended and y et the division within 

this coun try remains.

We made a m oral judg men t in th at war—a jud gment th at all peoples should be 

free to determ ine their own destin y—and yet tod ay—m uch to our shame— 

we pun ish some of our own countrymen , who, ou t of conscience, acte d upon th at 

basic right.

Toda y there are certa in young men, living in exile, who some years ago, for 

reasons of conscience chose to resist or disse nt from involveme nt in the Sou thea st 

Asia War. They acted with resolve and com mitm ent—th e same resolve and commit men t which have so many times in the past, made this cou ntry a singular 

champion of h uma n rights.

Officially, t he conflict has ended in Sout heas t Asia. It is time for the conflict to 

end in this cou ntry —time for us to act as we have always acte d in the past—to 

forget our grievances, to forget our differences, to be compassionate—tr uly to be 

a nati on where all men are free and entitled to live according to their conscience, 

withou t fear of p unis hme nt or recrim ination .

I call upon the Congress, as represen tative of the true American spirit, to 

proclaim unconditional amne sty to all those in foreign and domestic exile who 

chose, out of their conscience, to resist or dissen t from involveme nt in the war in 

Sout heas t Asia. As a Chris tian citizen, I believe unconditional amn esty is a 

necessary and initial step toward binding up the wounds th at afflict our people 

and county .

J ohn M. Burgess,

Bishop of Massachusetts.
764

T es tim o ny on Am nes ty S u b m it ted to th e S ubcom m it te e on C ourts, C iv il

L ib e r t ie s and t h e Ad m in is tr a tio n of J u st ic e o f th e C o m m it tee on th e

J udic ia ry

(Presented by William P. Thompson, Stated Clerk, on behalf of the General

Assembly of the United Presbyterian Church in the United States of America)

My name is William P. Thompson. I am a lawyer and was engaged in private 

practice for 20 years. In 1966, I was elected Stated Clerk, which is the perman ent 

executive officer of the General Assembly of the United Presbyterian Church in 

the U.S.A. I am subm itting this written testim ony on behalf of the General 

Assembly which is the highest governing body of the denomination, a jud icatory 

of approximately 750 commissioners, half laypersons and half clergy, elected by 

162 Presbyteries in fifty state s, within whose bounds are 2,916,757 members. I 

recognize th at within the total membership of the church there are individuals 

holding differing and sometimes conflicting views. I do not presume therefore to 

speak on behalf of each and every member of the church.

My testimony is based on actions taken by several General Assemblies by 

sub stan tial majorities, in a representative domocratic process. The General 

Assembly does function in a representative capacity. Its pronouncements on 

social issues, to which the church has an obligation to speak, arising out of the 

historic tenets of the faith, are un derstood to be for guidance of and not as binding 

upon the consciences of the constituent members who remain free to address 

themselves responsibly to these issues as Christians a nd citizens.

In the course of my testimony, I will make reference to a statem ent on War, 

Peace and Conscience adopted by the 181st General Assembly (1969), a statem ent 

on The Moral Crisis of the United Stales in Indochina adopted by the 183rd 

General Assembly (1971) and a statem ent on Amnesty adopted by the 185th 

General Assembly (1973). The relevant portions of these documents are attache d 

hereto, and I request th at they be incorporated as p art of my testimony.

Recognizing t ha t “ God alone is Lord of the conscience,” the General Assembly 

of the United Presbyterian Church has repeatedly urged th at individuals be 

allowed by law to choose the right of couscientious objection to participation in 

war. Moreover, it has recognized the superior claims of conscience even in the 

absence of such legislation. In doing so, the General Assembly does not differentia te between the various motivations which lead individuals to ado pt such a 

position, bu t has sought rather to preserve freedom of conscience for those whose 

consciences forbid them to engage in military service.

Many young men, having relied upon this official position of our Church and 

having further relied upon the instruction and nurture which has informed their 

own understanding, have conscientiously objected to participation in the war in 

Indochina. Such persons have chosen various courses of action, informed by their 

conscientious objection to the war, and as a result of such action they are now in 

various degrees of legal jeopa rdy.

The United Presbyterian Church, consistent with its former advocacy of the 

right of individual conscientious objection to war, has felt th at it must continue 

its ministry to persons who have adopted such a position, particularly those who 

as a result discover themselves to be in violation of criminal s tatute s. During the 

Indo chin a conflict, the UPCUSA received an unprecedented num ber of requests 

for assistance and counseling regarding the war-peace issue. In order to meet 

these requests a special office, with staff, was established, known as the Emergency 

Min istry on Conscience and War.

In a statem ent related to this decision, the 181st General Assembly (1969) 

made a clear declaration with regard to amnesty and the war in Indochina. In 

the s tatem ent on “War, Peace and Conscience” the General Assembly said:

“Available evidence indicates th at the present administration of the Selective 

Service law has led to miscarriage of justice in some individual cases; and furthe rmore, the law itself does not provide relief for those who are morally and conscientiously opposed to a particu lar war. It is impe rative that steps be taken to 

redress whatever miscarriages of justice have occurred under these conditions 

as soon and as systematically as possible. Moreover, amnesty for those whose 

violations of law are based upon higher loyalties is a cherished possibility within the 

American trad ition and compatible with the understanding of God as a God 

of mercy. Therefore, redress of grievances should include consideration of amnesty 

in appropriate cases” (Minutes (1969), P art I, Journal, p. 699).

In 1971 the 183rd General Assembly called upon “. . . the Congress, the 

President, other officials and our fellow citizens for reconsideration of the plight
765

of those young men who, in good and sensitive conscience, have found th at they 

cannot partici pate in a particu lar war bu t have not had redress or relief under 

existing laws. We urge retroactive recognition of their claims and redu ction of 

punitive sentences, together with appropriate amnesty as soon and as sys tem atically as possible” (Minutes (1971), P art I, Journal, p. 702-3).

A statem ent adopted by the 185th General Assembly (1973) reaffirmed the 

above stateme nts and commended the study of the amnesty issue to all United 

Presbyterians, specifically suggesting th at the study stress “the unconditional 

nature of amnesty” [Minutes (1973), Pa rt I, Journal, p. 300].

Since late last year, I have been one of a number of religious leaders who have 

attempted to discuss the issue of amnesty with the President. Until today, the 

response of the White House has been th at “The President’s schedule is such th at 

a time is not foreseen when he can meet with them.” In view of the Presiden t’s 

public statem ents of his opposition to amnesty and his refusal to discuss the 

matter, I am pleased th at this Subcommittee is conducting these hearings. I urge 

the Congress to enact appropriate legislation.

Amnesty comes from the Greek word “am nestia” meaning to remem ber no 

longer, to wipe from memory, or in tentionally overlook. Funk and Wagnalls New 

Stan dard Dictionary of the English Language (Unabridged) defines amnesty as 

“any intentional forgetfulness or overlooking, especially of wrong-doing or the 

like; as peace should bring amnesty.”

A statem ent on amnesty adopted by the Governing Board of the National 

Council of th e Churches of Christ in the U.S.A. (December 2, 1972) states: “ We 

view amnesty, not as a ma tter of forgiveness, pardon, or clemency, bu t as a 

‘blessed act of oblivion’, the laws own way of undoing what the law has done.” 

It n eithe r implies guilt nor innocence.

Our God says to us “I am He th at blots out your transgressions, and will 

remember your iniquities no more.” God expects us in tur n to exhibit something 

of his grace toward others through our labors and in our lives. Clemency is distinguished from amne sty in that it grants through parole or pardon reduced 

sentence or conditional term ination of punishment for a prior conviction. Clemency reduces a punitive sentence, often conditionally, bu t the conviction remains 

on the record. Amnesty, on the other hand, simply wipes the record clean, 

regardless of whether conviction has or has not occurred. If there has been a 

conviction, amnesty expunges it from the record.

You have before you a number of bills referring to “am nesty” ; however, most 

of them would implement what is called “conditional amnesty” . One such bill is 

the “Earned Imm unity Act of 1974,” S. 2832, which is now before the Senate, 

introduced by Robert Taft, Jr. (R.-Ohio) and Claiborne Pell (D.-R.I.). This bill 

would set up a board th at has the autho rity to grant immunity from prosecution

to anyone who has violated the Selective Service laws provided they “earn” it 

by performing service to the country. Such a bill presupposes the need to earn 

immunity and, therefore, presumes guilt on the pa rt of its potential beneficiaries. 

In addition, the alternative service requirement is seen as a “quid pro quo” and 

in itself punitive. I respectfully suggest th at such bills are not really dealing with 

amnesty b ut with a form of clemency.

Amnesty is neither punitive, nor does it imply guilt and therefore should no t 

be confused with earned immunity. It is qualitatively different. Most of the bills 

currently before you would really provide only earned immunity. It is also 

imp orta nt to note th at there is no known precedent in legal history of amne sty 

for earned immunity such as these bills propose.

Of those bills before the House, and the one Senate bill, which relate to the 

amnesty issue, only two would grant true amnesty. They are H.R . 236, the War 

Resisters Exoneration Act of 1973 (Abzug, D.-N.Y.) and H.R. 10980, the Amnesty 

Act of 1973 (McCloskey, R.-Cal.). I commend both of these bills to your serious 

atte ntion. I would note, however, t ha t these bills omit a category which is nu merically the largest of those in legal jeopardy, namely veterans with less than honorable discharges. Therefore, I would recommend th at either H.R . 236 or H.R. 

10980, be amended to provide appropriate rehef for those veterans with less than 

honorable discharges.

As we may all recognize, th e decision to resist participation in war is a difficult 

one indeed, demanding a strong conviction and comm itmen t to peace. Despite 

the opposition in society to this position, many of our fellow citizens viewed and 

indeed still view their resistance as justifiable and in no way diminishing the ir 

own patriotism.
766

Our troubled society needs these young men, with their insights and visions 

for peace and justice, and their hopes for the future. We need their commitment 

to action in order to implement their dreams.

The Congress now has the opportunity to alleviate their suffering and to free 

them for full life in our society by granting a full amnestv

Sta te m e n t s Abo u t Am nest y by t h e G e n er a l As se m b lie s o f t h e U n it ed

P r esb y ter ia n C h urch in t h e U.S.A.

In a statem ent on “War, Peace, and Conscience” the 181st General Assembly 

(1969) said:

“Redress. Available evidence indicates that the present adm inistratio n of the 

Selective Service law has led to miscarriage of justic e in some individual cases; 

and furthermore, the law itself does not provide relief for those who are morally 

and conscientiously opposed to a particu lar war. It is imperative th at steps be 

taken to redress whatever miscarriages of justic e have occurred under these 

conditions as soon and as sy stem atically as possible. Moreover, a mnesty for those 

whose violations of law are based upon higher loyalties is a cherished possibility 

within the American tradition and compatible with the unde rstanding of God 

as a God of mercy. Therefore, redress of grievances should include consideration 

of amnesty in appropriate cases.”

In its recommendations to public authorities and the general society regarding 

public policy the Assembly

“Asks the Congress, the President, other officials and our fellow citizens for 

reconsideration of the plight of those young men who, in good and sensitive 

conscience, have found th at they cann ot participate in a par ticu lar war bu t have 

not had redress or relief under existing laws. We urge retr oactive recognition of 

their claims and reduction of punitive sentences, together with appropriate 

amnesty as soon and as systematically as possible.”

In a statem ent on “The Moral Crisis of the United States in Indo chin a” the 

183rd General Assembly (1971) said:

"We * * * warn that the civil rights of dissenters are particu larly vulnerable 

during times of natio nal crisis and tension, and th at therefore special diligence 

must be exercised by the Church, citizens, and the government to preserve those 

rights. We specifically urge Presidential amnesty for those who are imprisoned 

or exp atriate for conscientious dissent to this war.”

am nes ty

Overture 141, from Maumee Valley Presbytery, requested the 185th General 

Assembly (1973) to t ake action “On Dealing with Peoples Alienated from Society 

by the Vietnam Conflict.” It urged a Presidential Commission to determ ine a 

benevolent and jus t solution for such people, stressing the doctrine of grace and 

forgiveness.

The General Assembly recommended no action on th at particular Overture, 

but adopted the following statement and recommendations concerning amnesty:

“In response to Overture 141, we know and respond to the saving love of 

Jesus Christ and therefore, we dare to be agents for God’s Love in the world.

“The question of amnesty for those who have been in conflict with the 

government because of opposition to the war in Indo-China is much misunderstood. Solutions will arise as its moral and theological aspects are explored beyond 

merely political considerations. We must regain a proper perspective and remember th at Christ’s Church has a ministry of reconciliation with justic e which 

includes atte nding to opposing views.

"Because official American participation in the ground war in Indo -China has 

finally come to an end since the General Assembly last spoke of amnesty, we 

believe th at there is an urge nt need for the church to study amnesty in depth. 

Such a study should include the historical, legal, political, moral, and theological 

dimensions of amnesty, stressing the unconditional nature of amnesty. Particu lar 

attention would be paid to all persons who might be affected by amnesty or 

fur the r punishment. Study should lead to action in Christian concern to influence 

others, the media, and the government to achieve solutions t hat strengthen peace.

“Therefore, the 185th General Assembly (1973):

“A. Reaffirms the am nesty pronouncements of the 181st General Assembly 

(1969) and the 183rd General Assembly (1971).

“B. Urges th at all congregations underta ke a study of the question of 

amnesty in 1973-74 under the guidelines of this sta tem ent, using the materia ls 

now becoming available.
767

C. Requests the Program Agency to continue to provide ade qua te study 

materials and to affirmatively communicate to the church at large the urgency of the need for stud y and the availability of such resource materials.

D. Suggests th at study of amnesty be considered as pa rt of the peace 

priority program .

“E. Urges all United Presbyterians to pray erfully und ertake a reexamination of th eir views on amnesty .”

DR AFT REP EA L

The 185th General Assembly (1973), mindful of the long standing position of 

the UPCU SA favoring repeal of the milita ry draft, and mindful of the continuing 

dilemma posed for young men facing the question of registration for the dra ft, 

urges UPC USA church members and judicatories to sup port the current move 

toward effective repeal of th e dra ft law.

A Proposal for Developing an Amnesty Review Procedure

(By Richard J. Lorette, Associate Dean, School of M anagement, Sta te University 

of New York at Binghamton)

My thoughts on amnesty are those of an individual citizen who has served 

combat tours as an Air Force flying officer in both the Korean and Vietnamese 

Wars. In addition, as a father, a university staff member and an involved American, I am concerned abo ut young people generally.

First, in a time of considerable national stress, involving such problems as 

energy, inflation and Watergate, the responsibility of citizenship cannot be ignored. In 1783, George Washington said, “. . . every citizen who enjoys the 

protection of a free Government, owes no t only a portion of his property (taxes), 

bu t even of his personal services . . .” to its defense. I agree w ith th at sta tem ent.

Secondly, and perhaps one of the two most crucial elements, we mu st solve the 

amnesty problem by designing a process th at most Americans will judge to be 

fair. I relaize, in making th at statem ent, th at I have restated the obvious. But, 

with any oth er outcome, the entire process can become an issue almost as destructive to the streng th and unity of th is country as was the Vietnamese War itself. 

Somehow we must develop a climate of understan ding, compassion and tolerance; we must try to apprecia te the sincere viewpoints of those whose feelings 

may be different from our own. And th at word “feelings” is critical, because I 

think we are dealing much more with feelings and emotions than with logic or 

facts or “cut-and-dried” rules and regulations.

And so, to get started on the righ t foot, I believe we all should ask ourselves, 

“Who are we talk ing about, when we say tha t am nesty should be gran ted or should 

not be gran ted? ” I hope th at we don’t have to “choose up sides” on this issue an d 

“have at i t.” Bu t if we do, let’s first assure ourselves th at we do in f act disagree. 

It follows, in my opinion, th at the first step—in designing a procedure for what 

I have called the National Amnesty Project—will be to sepa rate or classify or 

categorize those 30,000-40,000 (whatever the number is) young men into like 

groupings.

Some are deserters from military organizations. They m ay have “gone AWOL” 

from their army units in Germany, “jum ped ship ” in Jap an or left their basic 

training squadron in Texas. In so doing, the y have violated th e Universal Code of 

Military Ju stice (UCM J) and Federal Law and may be subjec t to courts-martial. 

Perhaps they were opposed to “th e war.”

Some may have deserted or evaded to avoid prosecution. Following World 

War II, President Tru man’s Amnesty Board, the Roberts Board, found th at 

nearly half of the 15,805 dra ft evaders were men wanted for murder, robbery, 

desertion of their families and other serous crimes. Do those of us who support 

amnesty favor pardoning men who deserted or evaded to avoid prosecution and a 

possible jail sentence? Would these men even requ est amnesty if to do so would 

risk revealing their whereabouts to civil or military law enforcement a uthorities? 

As a brief aside with regard to those who may not desire amnesty, I don’t think 

we whould be concerned initially with their cases. At a later phase of the process, 

we could review the appeals of pare nts who may wish to clear their family name 

or their son’s name (in absentia).
768

Or do we fav or only gran ting amnesty to the man who was willing to serve 

his cou ntry but not to fight in a war he believed to be immoral? Wh atever the 

reason for deserting or evading, we cannot confuse the deserte r with the evader. 

The you ng men we are discussing, and most were very you ng when the y chose to 

evade, had been called to cont ribute that personal serv ice Georg e Washington 

referred to. Th ey chose not to serve— at that time. Would the y be willing to serve 

now? Would the armed services accept their service now?

Do those of us who oppose grantin g amn esty belie ve that dra ft evaders should 

be punished for deserting our cou ntry in its hour of peril? Did the y really evade 

the dra ft in our cou ntr y’s hour of peril? We had not been attack ed. War was not 

declared! Or did they choose not t o serve in its hour of need (as opposed to “ peril” )?

Clearly , while many classifications are possible and perhaps appropriate, a 

begin ning might be to divide the men into two basic groups: evaders and deserters. 

A second step of the procedure would be to discuss our classification scheme with 

the mi litary services and civil law agencies; there may be some type of amn esty 

candida te we have not identified. At any rate, following these discussions, a final 

classification scheme would be selected.

The nex t step invo lves research into the records of the mil itar y departments 

and those of local dra ft boards. The objec t of this step is to find out approximately 

how many men fall into each of our classification catego ries. Each group might be 

handled in a different wa y; the size of the groups would hav e an imp act on the 

procedure chosen.

Con currently with the abo ve steps, research must be cond ucted to evaluate the 

procedures used following pas t wars, perhaps going back as far as the American 

Civil War. Advan tage s and disa dvantages of each should be listed. Effo rts to 

determine the cost/man in dollars and time would be usefu l information. The outcome of this phase would be a series of recom mendations as to which procedure or 

combination of procedures would be the most effective for the Vietnam evaders 

and deserters. A different procedure could be recomm ended for each of the dif ­

fere nt categories of amnesty candidates. Cost of the process (or processes) recom ­

mended must be estim ated. Such estim ates should include dollars per man reviewed, the duration of the tot al process, source of funding and manpower and 

amo unt of suppo rt to be contributed by s tat e and federal govern ments.

Also concurre ntly, it would be possible to iden tify and list the potential results 

of appeals by different candidates. This process would prim arily inv olve negotia ­

tion with mil itary and civilian legal groups. For example, would the Air Force be 

willing to grant unconditional amn esty to a young man who had served honorably 

for 2)4 years but had deserted when his unit received orders to go to Vietn am? 

On the other hand, if an 18 ye ar old, just out of high school, had evaded on receiving his induction notice, would the Arm y accept two or three yea rs service tod ay 

as full res titution? According to the U .S. News and World Repor t (Ma rch 12, 1973), 

“ The mi lita ry services often hav e perm itted deserters to surrender voluntarily 

and serve out their comm itmen ts withou t prosecutio n.” The same source indicated 

that the “ . . . Justice Depar tment ’s policy on dra ft dodgers has been to allow a 

criminal charge to be dropped if the draftee agrees to a preinductio n physical 

examin atio n.” From the you ng man ’s viewpoint, now that the U.S . ground involvem ent in Vietn am has ended, mil itary duty in peacetime may prov ide a 

tem porary source of income while he “ finds himself” and decides what to do with 

the rest of his life. Alte rnative s to militar y service, such as V IS TA or Peace 

Corps kinds of service organizations, should be considered. Possibly a form ula 

can be derived that would combin e an incomplete service tour plus "x ” number 

of years in exile (or underground in the U.S.) and net this product t o an equivalent 

number of required years in a non- military gove rnment service organization.

At some poin t in the design procedure, we should try to assess the beneficial 

effects of returnin g the tens of thousands (underground in the U.S.) to useful, 

law-abidin g lives. How many of the 30,000 or so are now mak ing their livin gs by 

unla wful activities? How many will eventua lly be caug ht, tried and sent to serve 

jail sentences, all at a dollar cost to the American tax payer? At the same time, 

some tho ugh t should be given to the addition of these thousands to the welfare 

roles and/or ranks of unemployed.

The abo ve informatio n perhaps can be collected as part of the data collection 

phase. A data bank, with suitable guards against leaks or disclosure, would store 

information on names, ages, last-kno wn addresses, social secu rity number, military 

conduc t record (if any), criminal record (if any) or dra ft evaders, etc. Regional 

site directors would be responsible for collecting such dat a as would be availab le 

at local dra ft centers. The Washington, D. C. Site Dire ctor would gather the 

informatio n already ava ilab le to the armed services and F.B. I.
769

A similar data-co llecting and storing function relate s to determin ing local, 

sta te and regional opinion on a small number of major questions abo ut amn esty. 

Nat ional polling organizations (also polit ical parties and church groups) ma y 

hav e information which can be updated to show 1974-75 thin king by the general 

public.

A late r phase of the pro ject’s deve lopm ent of an amnesty procedure would 

inv estigate the metho d by which an evad er or deserter would con tac t the amnestygran ting board (committee, panel or wha tever). Should local neutral (interested 

laym en and attor neys) gioups advertise and request letters or phone calls which 

would generate the mailing of an application form to the evader/deserter? Should 

parents be queried as to their sons’ desires on the matter? Wh atever method (s) 

is used, once names sta rt coming in, should cases be handled on a “ first come-first 

served ” basis? Or should it be done alp hab etically (after a minimum number has 

been received) or in chronological order from the individu als havin g deserted or 

evad ed first?

Fin ally, if the overall process is to be completed in a reasonable amo unt of 

time, there must be a sizable publi city effort. It would r ely heavily on the results 

of the earlier opinion polls and would stress national and regional supp ort of the 

various steps being take n. Potential gains to amnesty candida tes (in terms of 

renewed: rights to vote, elig ibility to hold Civil Service positions and elig ibi lity 

for G.I. benefits) should be emph asized in order to qu ickly generate as ma ny 

candida tes as possible. In order to encourage a decision (to requ est amnesty or 

not reque st it) by the men involved , a deadline for requestin g consideration should 

be established. After tha t date, deserters would be sub ject to the standa rd UCM J 

prosecution and appeals machinery withou t benefit of the options ava ilab le from 

the amn esty procedure. The same applies to dra ft evaders. Obviously , due to the 

expense involved , the amn esty machine ry cannot remain is session perm anently .

The process can and should be handled in a fas t ye t fair, efficient manner. The 

sooner we get started on the actual review process, the sooner we can remove 

the uncertainty from the lives of these men and their families. And the sooner 

we can remo ve one more of the explo sive issues dividing this nation.

A final poin t refers bac k to my earlier comm ent abo ut the “ feelings” of people 

and their view poin ts of the rightn ess or wrongness of amnesty. And I believe 

this next comment is second in importance to the poin t on deciding who we are 

talkin g abou t. It m ay even be more importa nt. I refer to the “ mom ent of truth.” 

We cannot avoid the question of punishmen t and/or forgiveness versus the 

sacrifice of those who gav e their lives in the Vietnam ese War. In my opinion, 

neither President Nixon nor the Supreme Court nor even the Congress can 

forg ive those who chose not to serve. Forgiveness cannot be legislated or decreed 

by executive order. Only the Ame rican people— acting sing ly or as small groups 

or even as towns and cities— can make this judgment. Th ey must examine the ir 

own consciences and decide. The families of those who died, the thou sands of 

cripples in V.A. hospitals and the ma ny thou sands who risked their lives in the 

com bat zones— the y must decide w’ho will for give or not forg ive. Some will for give 

and in time forget. Others will never forg ive and will neve r forget. I believe 

tha t over the years the cons tant reminders— sometimes hastily averted glances 

and sometimes cuttin g remarks— from those who did not forgive and could not 

forget— will be worse punishmen t than the potential maximum five years in 

prison.

I feel perso nally that the degree of our involvement in Vietnam, Laos and 

Cam bod ia was a national mistake. It has been argue d that ma ny of the deserte rs 

and evaders came to tha t conclusion before the ma jority of Americans. At the 

same time, I thin k it could be said that deserting or evading was a personal error; 

it w’as the wrong answer to the rig ht question. I believe it is tim e to recogn ize 

the imperfect nature of our polit ical system and the fall ibi lity of men; it is tim e 

to get on w ith th e business of showing these young men our willingness to provide 

a wa y to “ balance the books” to the extent that is possible.

A C hristian Dec lara tio n on A mn esty— P ea ce Sectio n, M en no nite C en tr al

C ommitte e, A kron, Pa.

As a major chapter in the Indochina war ends, it is impo rtan t th at the suffe ring 

and tra gedy of the millions of war victim s in Southeast Asia and No rth Americ a 

not be forgotten. In a real sense everyone is a vic tim — those who prom oted 

misguided policies as well as those who suffer from the terror of bombs and nap alm
770

and the thousands of civilians still imprisioned in South V ietnamese jails. Another 

group which continues to be vict imized by the war, though the y courageo usly refused to participate in it, are the thousands of fugitives from compulsory milita ry 

service. It is for these persons tha t am nesty is needed.

I

Canada and the United Sta tes were once known by the nations of the world as 

lands of refuge for persons who opposed peacetime conscription or who refused 

to fight in wars. Amo ng those who came for such reasons were some of our Mennonite and Breth ren in Christ forebears. Ma ny came as fugitiv es from compulsory 

mil itary service. With the war in Indochina, this situation changed and the 

United Sta tes has now b ecome a land from which men are fleeing. Can ada, among 

other nations, has been the recipient of ma ny of these fu gitive s of conscience.

Ma ny Christia ns in Canada have rallied to aid those troubled, conscientious 

you ng men and their families; they hav e prov ided food, shelter and fellowship. 

Thes e ministrations of mercy grew out of a deep sense of Christian obligation to 

help “ the stranger within the gates.” It was also a repa yme nt, in ma ny cases, for 

the hospitali ty and friendship given to those who earlie r came to Can ada as 

refugee-immigrants. We tha nk God for these demonstrations of love and compassion.

II

As Menn onite and Breth ren in C hrist Christians, we oppose all wars and b elieve 

tha t the refusal to par ticipate in war is the Chr istian’ s duty. The Indo china war 

is no exception . Indeed this has been a particu larl y heinous war in the way it has 

been fought. It is our strong belief that Christ ’s message of peace and reconciliation is at the very heart of the gospel. From this pers pective and with this concern 

we speak for amnesty, an action which we believ e can help heal the wounds of the 

war.

Reco nciliatio n and the resto ration of civil rights can come through a general 

amnesty— an amn esty which will, as the word in its origin implies, forget the 

legal offenses because of a greater interest a t hand. For us in this situation , amn esty 

is the la w’s a bility to s et aside its own power to in dict and punish.

Ma ny not faced with the life and death decisions of the draftee or a person in 

militar y service, see amn esty eithe r as a generous act for you ths who made a 

mistake or as forgiveness for those who broke th e law. For A nabap tist Christians, 

the view is quite different. We join with many of these you ng men in believ ing 

that tak ing a stand against the imm orality of the Vietna m war needs no for giv eness. Th e “ premature awakening of conscience” should not cause the young men 

who ear ly opposed particip ation in this immoral war to continue to be considered criminals. Indeed are these not a par t of that crea tive minority who ha ve 

helped to change American opinion from supporting war to the recognition th at 

it was a fundamental mistake?

II I

Mo st Menn onite and Brethren in Christ young men have refused milita ry 

serv ice for conscientious reasons and hav e accep ted altern ative service assign ­

ments. For some from our churches, however, the decision to refuse milita ry 

serv ice also led to questioning the va lid ity of performing alte rna te service. Thi s 

decision was usua lly the resu lt of deep strugg les of conscience and a serious at tem pt 

to be a faithful Christian disciple. Thes e Mennonite you ng men, perha ps numberin g several dozen, are part of the larger group of potential amnesty recipients.

IV

Several hundred thousand men ma y be affected by a general amnesty. Some of 

these have never been in the mil itar y. A min ority of this group chose not to 

coopera te with Selective Service or the milita ry in any way. Mo st Mennonites 

who would be recip ients of amnes ty are in this group. A larger group of men, 

however , did attem pt wit hout success to gain conscientious obj ector classification. 

Des pite their opposition to all war, some of these were denied conscientious 

objector status, often because of adm inistrativ e mish andling by Selective Service. 

Othe rs were not recognized as conscientious obje ctor s because the y felt par ticipation in some wars ma y be right, even thou gh the y believed par ticipat ion in the 

Vietnam war was wrong. Thes e men acc ept the ju st war position which calls on 

persons to discriminate ind ivid ual ly between just and unjust wars. Most Christian churches tak e this position officially; it is not recognized legally , however.
771

These pot ential recipients of amnesty who were not in the milita ry generally 

find themselves in one of thre e situation s. First, the y may already be convicted 

of draft law violations and be in prison, on probation, or released after serving a 

sentence as a felon. Since 1964, 7,433 1

 have been prosecuted and convicted thu s 

losing some fundame ntal righ ts of citizenship. Another 17,200 2

 are awaiting 

prosecution. Second, they may be living in Canada or other countries to escape 

military service and prosecution. Between 30,000 and 40,000 * men are in this 

group. Third, the y may be living “undergro und” in the United States or its 

territories and be liable for prosecution. No firm stat istical evidence is available 

regarding the nu mber of men in this group, bu t it is commonly estimated t ha t this 

number is as large as th at of the group which migrated.

V

The largest group of potential amnesty recipients did not initially claim conscientious o bjection to war. They were drafted or enlisted in military service and 

then discovered th at the ir conscience would not perm it them to continue performing such service. As a result, these men find themselves in one of three 

situations.

Fir st there are those sentenced to military prisons after unsucessful att em pts 

to otain discharges. Second there are those who were less optimistic a bou t getting 

such discharges and deserted from the militar y; these men when apprehended 

are also subject to military prosecution for their actions. The third and largest 

group includes those who have received o ther tha n honorable military discharges 

for actions based on principled objection to war. These men face consequences 

somew hat less severe than a convicted felon, bu t carry a stigma as a result of the 

other-than-h onorable discharge th at may hinder future chances of employm ent 

or favorable cha racter references.

VI

Amnesty is in the best tradition of the United States; eleven presidents have 

granted amnesty following wars and rebellions. A general amnesty was granted 

to all following the United States Civil War—even to those found guilty of 

treason.

The time has come again to bind up the na tion ’s wounds, wounds resulting this 

time from the Vietnamese war. Amnesty will help reconcile the nation and a 

large group of its alienated sons.

VII

In light of the above considerations, the Peace Section of the Mennonite 

Central Committee:

1. Asks our congregations to welcome back those who because of conscience 

violated the Selective Service Act or Military Law to avoid military service.

2. Urges our Mennonite and Brethren in Christ bodies to support a 

universal amnesty which without being punitive would restore all civil r ights 

to those having refused military service for conscience sake.

3. Appeals to the United States Government to recognize the value of the 

witness of the men who opposed the war by restoring full civil rights with 

impu nity to these men.

4. Commends those governments such as Canada which adm itte d youn g 

men who chose to leave the United S tates rather tha n to fight in the Vietnam 

war.

This statem ent—A Christian Declaration on Amnesty—represents the consensus of the Peace Section of the Mennonite Central Committee. The document 

was prepared to generate honest discussion and to help to focus the moral and 

theological issues regarding amnesty.

Both within the Christian churches of North America and within the larger 

society, there is a broad diversity of thought concerning amnesty for those who 

would n ot participate in the Vietnam war. It is an issue which must be faced and 

ultim ately resolved. The Peace Section has atte mpted to sta te with clarity and 

precision the position which it feels is consonant with our Mennonite theology 

of peacemaking and reconciling.

Walton H ackman, 

Executive Secretary, Peace Section.

1

 Administrative Office of U.S. Courts.

* Department of Ju stice 1972 Draft Violators. Selective Service 1973 Dr aft Violators. 

’ National Interreligious Service Board for Conscientious Objectors.
A Preliminary Statement on A mnesty and R ace, Submitted by the A merican

Civil Liberties Union Foundation, Project on Amnesty

The United States Government’s war in Southeast Asia tore up the countries 

and peoples of Indochina for an entire decade. It wreaked enormous havoc also 

in our own country. The war divided our society, deepened our bitterness, aggravated our violence-prone disposition, diverted our attention and resources into 

destructive channels, and forced millions of young men to choose between either 

obedience to rhw law or their own sense that this was a useless war in which to 

kill others or to be killed. Most of the men who were of military age during the war in Vietnam dodged 

the draft and the war. Of the tens of millions who were of draft age, only about 

eight million, a small proportion, ever saw military service. The others had 

personal disabilities, exemptions, deferments, luck or courage. No more need be 

said here than that almost every young man whose father had the money to get 

him a college deferment was able to escape the draft and the war. Some hundreds 

of thousands directly refused participation in the war, even if that meant violating 

laws that the courts have upheld; they are the war resisters, whether convicted 

or underground or in exile. Among them, the proportion of blacks may be small, 

though a great many young men in the black community continue to be subject to 

federal prosecution for failing to register for the draft.

Of the eight million-or-so Vietnam-era veterans, about 11 % to 13% are thought 

to be black, or approximately a fair share. About 450,000 of these veterans have 

“ bad paper” (i.e. less-than-honorable discharges from the military), and the 

proportion of blacks among these is far more than a fair share. Some of the ways 

in which the draft boards and the military services (in their systems of justice, 

their assignments, and their discharge practices) massively discriminated against 

blacks and other minorities are reviewed in the attached memorandum.

Like virtually everything else that this society touches, the draft, the military, 

and the war imposed their burdens in greatly disproportionate measure upon the 

poor, the ill-educated, the blacks and other minorities. They were drafted in 

greater numbers, were assigned in greater numbers to the front-line fighting units 

and to unskilled and dead-end military jobs, they were wounded and killed in 

greater numbers, they were abused by the system of military justice, and they 

were finally ejected from the machinery in greater numbers with records that 

blight the rest of their lives. It is in this context that the issue of a universal and 

unconditional amnesty for all those who suffer disabilities from the draft and the 

military is of great and urgent importance to the black community of this country.

There are increasing efforts under way, locally and nationally, to provide 

discharge-upgrading services for Vietnam-era veterans. The tedious review process 

and the inevitable litigation will overcome some of the abuses of the recent past, 

and more aggressive class-action litigation in the federal courts has already begun 

to make some systematic inroads on the worst after-effects of military racism and 

discrimination with respect to discharges.

Ultim ately, however, only a small number of the men involved are likely to 

benefit from such an important but necessarily limited discharge-upgrading effort. 

What is needed is a change of social policy with respect to veterans and to the 

system of military discharges. Social policy, in this area, will be expressed in two 

ways: One is legislation that would eliminate administration discharges entirely 

and would end the military stigmatization of men who have displeased the military 

system of values. The other is a universal and unconditional amnesty, one that 

would remove all criminal and civil disabilities arising from the draft, the military, 

and the war, including the expunging of bad discharges and the issuance of a 

uniform certificate of military service which would not prejudice a veteran’s life 

after his military experience.

A startling proportion of the black prisoners in the jails and penitentiaries of 

this country are men with less-than-honorable discharges. The vicious circle of 

discrimination in the discharge process aggravates the drug-abuse problem in the 

ghetto communities, the problem of crime, of unemployment, of cynicism and 

mutual destructiveness. A universal and unconditional amnesty for the hundreds 

of thousands of men whom this country continues to victimize in the context of a 

catastrophic war that we have ended, will not only be an act of social decency and 

political justice but will also bring about direct and substantial benefits to the 

minority community of this country. The members of the Blac k Caucus in the 

Congress have recognized this. The voices of the leaders of the black community 

in this cause will be essential.
773

M em orandum— S u b je c t : R ac e an d t h e M il it a r y S e r v ic es

During the war in Vietnam, national leaders of the civil-rights movement p ersistently protested the devasta ting distortion of na tional priorities caused by ou r 

comm itmen t to th at war. As early as 1967, M artin Luther King, J r. said, “We are 

takin g the young black men who have been crippled by our society and sending 

them 8,000 miles away to guarantee liberties in Southeast Asia which they had 

not found in Southwest Georgia and East Harlem.” 1 In 1971, a natio nal survey 

showed t ha t, by a margin of two to one, black Americans felt th at their sons and 

relatives were fighting a disproportionate share of the war.2 This repo rt describes 

some of the ways in which the black soldier bore (and the black vete ran now bears) 

an unequa l share of the burdens imposed by the Vietnam war.

TH E S E L E C T IV E S ER V IC E SY ST EM

The inequities of the Selective Service System began with the composition of 

the local dra ft boards, which were made up almost entirely of white professionals 

and white salaried officials.3 In 1967, only 1.3% of all local d raft board members 

were black.4 Moreover, the black young men who were among the poor in our 

society faced a bias in two additional ways: they were no t as ap t to be eligible f or 

college deferm ent and they could not easily get into the Reserves. As a result, 

black men were drafted in far greate r proportion that whites.5 6

M IL IT A RY A SS IG N M EN TS AN D PR OM O TI O NS

Black servicemen were assigned, to a significantly high degree, to a few limited 

fields and to the lower pay grades. A serviceman’s score on the Armed Forces 

Qualifications Test (AFQT) determined the branch of service and the type of 

outfit to which he was assigned. The Departme nt of Defense has repo rted th at 

blfflcks receive “markedly lower” AFQT aptitude scores t han white soldiers.5 In 

all services, black servicemen were consistently placed in a less favorable “Mean 

Mental Category” tha n white servicemen on the same educational level, even 

though the DOD adm itted t ha t this was an exceptionally crude measure, based on 

the AFQT score.7 As a result, black soldiers wound up in disproportionately 

large num bers in active combat and were more likely to be killed in action.8 * Black 

servicemen were more often assigned to the so-called “soft-core” career fields 

(such as Food Service, Supply, Administration and Transportation) than to 

technical or “hard core” fields.’

In the Army generally as well as in Europe in particu lar, black servicemen 

were in sub stantially lower pay grade categories than white servicemen.10 The 

prom otional slots available at any given time, moreover, were few in “ soft” 

as compared to “ hard core” fields. T hus, the system was similar to the “ tracking 

system” employed by many school systems.11 A DOD Task Force rep ort acknowl1

 Q uoted in. The American M ilitar y, ed ited by M ar tin Op pe nh eimer, Aldin e Pub lish in g 

Co., 1971, “Black V et er an s R etu rn ,” by Ja m es Fen dr ic h an d Michael Pea rs on , p. 165.

’ Ib id ., p. 166.

a

 A Co nfl ict of Loy altie s, ed ited by Ja m es Fin n, Peg as us , New York, 1968, ‘‘The Selec tiv e 

Servi ce Sy ste m : A ct ual itie s an d A lt er nat iv es ,” by Ar no ld S. K au fm an , p. 241. Mr. K au fman ci te s th e Rep or t of th e N at io na l Adv iso ry Co mm ission on Se lective Service , Cha irm an , 

Bur ke M ar sh al l (U.S. Go ve rn men t P ri n ti n g Office, 19 67 ).

' 1 UlU.

B I n 1967, al th ou gh only 18% of w hi te s who qualified fo r se rvice wer e ac tu al ly dra ft ed , 

30 % of qu ali fie d blac ks w ere c om pelled to s erve. {I bid.)

6

 T he Se arch fo r M ilitar y Ju st ic e, R ep or t of an NAAC P In qui ry in to th e Pr ob le ms of 

th e Negro Se rvicem an in W es t German y, NA AC P Sp ecial C on trib ut io n Fun d, 197 1, p. 1.

Am ong Army men w ith 19 to 24 m on th s of service , ab ou t 23 % of th e w hi te s ha ve sco res 

of 30 or lo w er .c om pa re d to o ve r 72 % of black se rvicem en t w ith th e same sco res . (I bi d. )

7

 R ep or t of t he Tas k Force on th e A dm in is tr at io n of M ilitar y Ju st ic e in th e Armed Fo rc es , 

Volum e IV, D ep ar tm en t of De fense Publ ic at io n, p. 44.

8

 Th ou gh co mpr ising on ly 11% of th e po pu la tion du ri ng th e firs t 11 m on th s of 1966, 

22 .4% of Army men kille d in ac tion were black. (R ep or t of th e N at io na l Adv iso ry Co mmissio n on Se lective Servi ce, 1967. Ci ted by Arn old S. K au fm an in A Co nflic t of L oya ltie s, p.

» In th e Air Fo rce, 37 % of th e pe rson ne l as sign ed to Se rv ice an d Su pp ly unit s we re 

black , as of Ja nuary 197 1, as we re 25 % of th os e in A dm in is tr at io n. (T he Sea rc h fo r M ili ­

ta ry J ust ic e, p. 1) .

15 Amo ng non-high sch ool gra duat es who sc ored be tw een 31 an d 49 on th e AF QT an d 

wh o were as sign ed to th e In fa n tr y , 30 % of th e blac ks were a t pa y gr ad e of E -3 or lower 

co mpa red to only ab ou t 14 % of w hite so ld ie rs a t th a t pa y gr ad e level. Le ss th an 20 % of 

th e black so ldiers in th is gr ou p were at a pa y gr ad e of E—5 or hi gh er , co mpa red w ith 27 % 

of th e w hite soldiers. (T he S ea rch fo r M ilitar y Ju st ic e, p. 3) .

11 Ib id. p. 2.
774

edged th at the disparity between the two racial groups with respect to concentratio n of personnel in hard and soft core skill fields was a contributing factor 

to the “ grea ter proportion of jo b dissatisfaction complaints on the pa rt of black 

personnel, which in turn may have a bearing on the disciplinary action rat e of 

this m inority group.” 12

The need for more black officers was high on the list of recommendations 

of enlisted men for improving race relations within the military. There was a 

dearth of black officers in the services,13 and, for the most part, they wound 

up in Staff, as distinguished from Command, jobs. Black officers voiced dissatisfaction with the ir rat e of advanceme nt and the “ dead-end” assignments 

they drew.14

ADMINISTRATION OF MILITARY JUST ICE

According to the rep ort of an NAACP inquiry into the problems of the black 

servicemen in West Germany, “ there are two levels of military justic e—th e 

judicial and the nonjudicial—a nd neither is working properly.” 15

Judicial Action

Judicial action refers primarily to c ourt ma rtial procedure. A disproportionately 

large num ber of black prisoners served sentences in military correctional or 

confinement facilities as the resu lt of conviction and sentence by courts-m artial. 

In Jan uary 1971, two out of every five prisoners were black. Later th at mon th, 

the black perce ntage increased to 50% .18 Of the G.I.’s in confinement facilities 

surveyed by the Task Force, 37.8% were black, whereas in Jun e 1972, black 

soldiers made up only 11.5% of the armed forces.17

The average sentence was longer for black prisoners (3 years) tha n for whites 

(2.5 yea rs). 18 Blacks received a longer sentence to confinement at hard labo r 

(2.88 years to 1.91 years), and had a larger percentage of sentences which included 

total forfeitures of pay and allowances (84.7% to 76%), and punitive discharges 

(99% to 94.8 %). 19 Among the soldiers convicted of civilian type felonies, the 

average sentence to confinement was 3.02 years for blacks to 2.54 years for whites. 

More blacks received a pun itive discharge (98.25% to 90.32%) and total forfeitu re (86% to 74%) tha n whites.20

The Task Force, in profiles of black and white prisoners, gave data on geographical and family background, pre-service and prior service records, and 

observations by social workers and psychiatrists. Most white prisoners were 

raised in rural areas or towns of under 50,000 pupulation, whereas a majority of 

blacks spen t their childhood in large urba n centers.21 Black prisoners were more 

likely tha n whites to come from families with low incomes and from broken 

families.22 In the court-martial convictions which led to placement in the Air 

Force retra ining program, the most common offense was Absence W ithout Official 

Leave (AWOL), whites comm itting a higher percentage of AWOL and drugrelated offenses, blacks a higher percentage of offenses which tend to direc tly 

confront or challenge military autho rity or are equivale nt to civilian felony 

offenses.23 The NAACP team found th at more tha n three ou t of five soldiers 

convicted for the m ajor offense of willful disobedience were black.24

Nonjudicial Action

Nonjudicial action refers to the administration of discipline at the company 

command level, without due process procedural protection. The following facts 

pertaining to “Article 15’s” and pretrial confinement give further evidence th at 

the military system of justice bore down more heavily on the black serviceman.

Article 15's.—The Uniform Code of Military Justice sets forth, in Article 15, 

the autho rity of the Commanding Officer to impose nonjudicial punishment on 

enlisted men for infractions of regulations. Under th e Code, a soldier may choose 

to have a tria l by court-m artial instead of accepting Article 15 punishment. Yet 

there is a lack of black military-justice personnel available. In Europe in 1971,

u

 Ta sk Poce, p. 106.

13 Th e ave rag e ratio of officers to enliste d men in all the services as of June 1972 was 

1 : 5.9 fo r w hit e servicemen compared to 1 : 31.7 for black servicemen. (Task Force, p. 303).

14 The Search f or M ilitary Justic e, p. 4.

18 Ibi d., p. 5.

» Ib id .,p . 10.

17 Task Force, p. 103.

M Ibid., p. 57.

» Ibi d., p. 61.

» Ibid., p. 63.

» Ibid., p. 99. “ IMd.

» Ibid., p. 107.

24 The Sea rch for M ilitar y Justice, p. 10.
775

only one of forty part-time military judges was black. One of the six full-time 

judges was black. Yet these 46 judges trie d nearly all the special court-m artial 

cases. Among the 123 Judge Advocate General (JAG) Captains in Europe (excluding the two black judges), none was black. There were no black JAG officers 

in the European Command who were available to engage in defense work. No 

civilian lawyer giving legal counsel to military defendan ts was black.25 Because 

a black soldier was not likely to expect th e legal assistance provided by the military 

to be objective and appropriate,25 he usually accepted Article 15 punishm ent 

without consulting a lawyer about its implications, one of the most important 

being th at court-martial carries with it a right to appeal, whereas Article 15 does 

not.

It was widely held t hat some of the manifestation s of black awareness by black 

soldiers—Afro hair styles, power salutes, even talk ing with the NAACP interviewers—led to confrontations with white superior officers.27 In West Germany, 

blacks received punishment at double the r ate of whites for disrespect, disobedience, insubordination, “provoking gestures” and assaults.28 NAACP researchers 

were told by Army officials in Washington th at enlisted black soldiers received 

nonjudicial punishm ent at a higher rate tha n whites. The researchers were told 

to assume, moreover, th at units in West Germany with a high percentage of 

Article 15 proceedings contained a high percentage of black soldiers.28

Pretrial Confinement.—Army regulations specify that soldiers placed in confinement may be held up to 30 days with out charges being filed against them. The 

Regulations are explicit in describing the circumstances under which a soldier 

may be held in pretrial confinement. Yet, “the informality of nonjudicial action 

invites abuse,” 30 and Commanders often used pretrial confinement for purposes 

other than those set out in the Regulations. Nearly one-third of all releases from 

the stockade in 1970 were for the reason, “pretrial no t required.” 31

Half of the black soldiers in military jail in 1971 were held in pretrial confinement; sometimes more than three out of five b lack prisoners were being detained 

under this provision. 32 Just as in civilian penal experience, the soldier who had 

already been detained in pretrial confinement often became an object of harassment and suspicion and was likely to be returned to the stockade later for a more 

serious offense.33

Military Discharges

A discharge below th e category of honorable carries with i t a lifetime of social 

stigma, reduced employment opportu nity and diminished government benefits. 

Most black soldiers who spoke with the NAACP interviewers were convinced t ha t 

administrative discharges generally and unfitness discharges in particular were a 

form of punishment “inflicted on the black soldier exclusively.” 34 In all services, 

black soldiers received a lower percentage of honorable discharges and a higher 

percentage of general and undesirable discharges than whites of similar educ ational levels and aptitude.35 Black soldiers under the European Command in 1971 

received 45% of all discharges below the category of honorable.38 Although nonwhite, non-English speaking enlisted people m ade up 9 to 11 % of the composition 

of the Vietnam era armed forces, they received 24% of the other-tha n-honorable 

discharges.37 In recognition of the fact th at black veterans receive a disproprotionately high number of less-than-honorable discharges, a recent decision of the 

Equal Employment Opportunity Commission holds th at to require job applicants 

who are veterans to have an honorable discharge, in and of itself constitutes racial 

discrim ination.38

ni bi d. ,p . 13.

» Ibid., p. 14.

« Ibid., p. 1.

* Ibid., p. 6. “ In Berlin In 1971, black soldiers were some 15% of the tot al command but received 

one-third of th e Article 15’s. (The Search for Military Justice, p. 6)

» Ibid., p. 9.

« Ibid., p. 8.

In 1970, 3,272 people were released from the stockade; 912 (28% ) were released without charges of any kind filed against them. (The Search for Military Justice, p. 8)

33 Ibid. A chart drawn by the NAACP team showing confinement data for the second 

half of 1970 Indicates th at 50% of the prisoners held in pretria l confinement during th at 

period were black. (The Search for Military Justice, p. 9)

» Ibid., p. 10.

** Ibid., p. 15.

“ Task Force, p. 149.

» Ibid., p. 15. 87 Background s: Other-than-honorable Discharges— Problems, and Prosp ects for Change, 

Released by Vietnam Era Veterans' National Resource Project, Emergency Ministries Concerning the War, National Council of Churches, 1974.

® Decision 74-25, Sept. 10,1973.
776

Certain reasons for sepa ration are invoked more frequently against personnel 

of a particular race. In all services, drug abuse accounts for proportionately 

more of general and undesirable discharges for whites tha n for blacks of similar 

education and aptitude. 38 In all services, discreditable incidents accou nt for 

proportionately more of general and undesirable discharges for blacks tha n for 

whites of similar education and aptitu de.40 Thus, the reasons for adm inistrative 

discharges correspond to the reasons for court martial proceedings against 

personnel of a particu lar race.

There is a consistent disp arity in the type of discharge issued to servicemen of 

different races, whites receiving a higher percentage of honorable discharges 

than blacks for the same reason for separation.41 Moreover, the branches of 

service evidence no uniformity in the type of discharge th ey award for a pa rticular 

reason. “Such lack of uniform ity,” concludes the Task Force repo rt, “vitiates the 

ultimate classification of service as honorable, general, or undesirable.” 42

Faced with the possibility of an administrative discharge, a soldier was often 

igno rant of the alte rnatives in his situ ation. In many cases, a soldier wras told t ha t 

unless he signed a waiver that allowed an adm inistrative hearing to discharge 

him with a general or undesirable discharge, he was going to be trie d and convicted by a court-m artial.43 In accepting an adm inistrative discharge, a soldier 

often did so believing he could later get nis discharge upgraded.

Discharge Review.—Only 5% of requests for upgrading a discharge were granted 

in 1970.44 Moreover, data collected from the Discharge Review Boards in 1972 

reflect a higher incidence of relief granted to white than to black applicants. Of the 

1,217 cases heard by the Boards, 289 or 30.9% of the 936 white ap plicants obtained 

relief. Of the 269 black applicants, 55 or 20.4% obtained relief.45

Veterans who are able to make personal appearances before the Boards have a 

greater chance th at their applications for upgrading will be successful. Yet, since 

the Review Boards are located in the Pentagon, the chances of successful appeals 

are reduced for those veterans who cann ot afford to trav el to Washington, D.C

Continuing Penalties.— The penalties attach ed to militar y discharges lead 

many veterans to a hopeless track of unem ployment, drug addiction, poverty, 

crime and imprisonment. There are figures tn at indicate th at 20 to 35% of our 

prison population consists of Vietnam era veterans with other-tha n-honorable 

discharges.48 A Sept. 1973 study of the Essex County Jail in Newark, N.J. by a 

member of the Natio nal Frate rni ty of Veterans revealed that, of 518 people 

being held over for trial because of inab ility to afford bail, 35% were Vietnam era 

veterans. All bu t two of these vete rans were black and all had been arrested 

within a year of being discharged.47

SUMMARY

Black servicemen frequently were in the military as a las t resort. They were 

often not prepared by prior education or training for skilled in-service work. They 

were typically given “soft core” jobs or placed in active combat. They were more 

likely tha n at any other time in history to rebel against the manifestation s of 

white racism in the military. They were thus disproportionately, more liable to 

receive punishment by the military justice system an d now suffer its consequences 

more acutely in civilian life.

BIBL IOGR APHY

1. A Conflict of Loyalties, edited by James Finn, Pegasus, New York, 1968, 

“T he Selective Service System: Actualities and Alternatives,” by Arnold S. 

Kaufman, pp. 240-262.

2. Backgrounds: Other-than-honorable Discharges—Problems, and Prospects

for Change, Released by Vietnam War Veterans’ National Resource Project, 

Emergency Ministries Concerning the War, National Council of Churches, 1974.

3. Report of the Task Force on the Administration of Military Justice in the Armed

Forces, Department of Defense Publication, Volume IV, November 1, 1972.

38 Task Force, p. 157.

*° Ibid. . ,

41 Charts 23 of the DOD Task Force report show t h a t: In all the services, whites received a higher percentage of honorable discharges than blacks when separation Is effected for character or behavior disord ers ; In the Army and Navy, the same holds true for motiva­ tion al problems; In the Army, Navy and Air Force, the same disp arity holds tru e for 

separation for inaptitude. (Task Force, p. 183, 207, 232, and 255)

43 Ibid., p. 158.

43 Backgrounds, p. B /I—4.

44 The Search fo r Military Justice, p. 15.

48 Task Force, p. 288.

48 Backgrounds, p. B /I -ll .

« Ibid.
m

4. The American Military, edited by Martin Oppenheimer, Aldine Publishing 

Co., 1971, “ Black Veterans Re tur n,” by James Fendrich and Michael Pearson, 

p p .163-178.

5. The Search for Military Justice, Report of an NAACP Inquiry into the 

Problems of the Negro Serviceman in West Germany, NAACP Special Con tribution Fund, 1971.

T ro ubled P ea c e— A n E pil o g u e to Vie t n a m : T h e N ader R e p o r t on Vie tn a m

Vet er a n s an d t h e V et e r a n s Ad m in is tr a tio n

(By Paul Starr, with Jim Henry and Ray Bonner, introduc tion b y Ralph Nader)

To the soldiers who come home with drug problems and to the men who come 

back physically disabled must be added still ano ther group who carry with them 

the bitte r legacies of the Vietnam War—those who return marked dishonorable 

and unfit. From the Gulf of Tonkin Resolution in 1964 through the summer of 

1972, more tha n 175,000 soldiers were dismissed with less tha n honorable discharges.’ If the reception th at other veterans have received has been ambivalent, 

the homecoming these men have faced has been even more dismal.

Were the ir discharge papers the ir only handicap, the prospect for these veretans 

might not be th at serious, bu t typically a bad discharge is only the most recen t 

problem in a biography of misfortune. Often poor, almost always with limited 

education, disproportionately black, vete rans w ith less than honorable discharges 

have a series of strikes against them. Employers who have more tha n enough 

jobless veterans to choose from will consider these men last and usually n ot at all. 

Even if th ey had a job before being drafted, the character of their discharge precludes them from asserting legal rights to reemployment upon return.

It is generally assumed that less than honorable discharges also legally bar a 

veteran from receiving hospital care, educational allowances and other VA 

benefits. This is true, however, only for the relatively small prop ortion of such 

men who were dismissed through general court-martial. The vast majority of 

Vietnam veterans w ith bad discharges received them as a result of adm inistrative action by the military, and the decision to deny these men benefits belongs 

to the VA. These decisions are made entirely within the agency, withou t clear 

sta tut ory guidelines, with out a firm set of definitions and without any oppo rtunity 

to appeal to the courts. One might also add th at the decisions have been made 

without peer represen tation, without sympathy and w ithout an y sense of the larger 

social consequences of compounding the men’s problems.

In most discussions of military discharges and their ramifications, the role 

of the VA is given little atte ntio n. The focus primarily centers on the military 

justice system and discrim ination in civilian employment. Our concern here 

will be to look more closely at the adm inistrative discharge process and at the 

procedures used by the VA to deny benefits to adm inistratively discharged 

veterans. As will become evident, these adi. inistrative decisions affect a greater 

number of men tha n the rulings of the military judiciary and involve the most 

questionable practices.

THE DISCHARGE HIERARCHY

Up until now, we have spoken loosely of “dishonorably discharged” veterans 

or men with “bad discharges.” To understand the discharge system , however, a 

more precise use of term s is necessary.

Technically, there are five types of discharges the armed services grant to outgoing enlisted men: (1) Honorable; (2) General; (3) Undesirable; (4) Bad Conduct; 

and (5) Dishonorable. 2

 The names can be somewhat misleading to a civilian. 

For example, both Honorable and General Discharges are granted “un der honorable conditions.” Hence when a serviceman is said to have been discharged "under 

less tha n honorable conditions,” it means he received either an Undesirable, 

Bad Conduct, or Dishonorable Discharge. It is this group th at has numbered 

over 175,000 during the Vietnam War.

Military discharges are distinguished in a second way. The first three discharges 

(Honorable, General and Undesirable) are “administrative,” whereas the last 

two (Bad Conduct and Dishonorable) are considered “punitive” and can only 

be granted after court-martial. In other words, if the milita ry seeks to discharge a 

man “und er less than honorable conditions,” it must conduct a cou rt-m artial— 

except in the case of an Undesirable Discharge. To get a little bit ahe ad of ourselves, 

what has basically happened ever the past few years is th at as constitu tional 

protections have been introduced into the court-m artial system , the military 

has increasingly relied on Undesirable Discharges as a way of circum venting the 

legal process. Administrative action is much simpler and can be jus t as damaging 

to the veteran.

31-658 0 —74------ 51
778

The vast majority of discharges, over 90 percent in every year, are Honorable. 

If a soldier has performed “proficiently,” he is likely to receive an Honorable 

Discharge even if he has one or two minor violations of military discipline on his 

record. If, on the other hand, his record is neither “sufficiently meritorious to warran t an Honorable Discharge” nor sufficiently egregious to warrant a discharge 

“under less than honorable conditions,” the military then grants the man a 

General Discharge—which is honorable in the general sense of th e term though 

not Honorable in the s trict sense. Soldiers who receive General Discharges have 

no opp ortunity to object or appeal or answer whatever charges were privately 

made against them. The argument for denying the men these rights is t ha t they 

are still e ntitled to all th eir veterans’ benefits and therefore have no ad equate cause 

for complaint. Nevertheless, it should be noted t ha t General Discharges do ca rry 

some stigma in the labor marke t and consequently prob ably do interfere with 

smooth adjustment to civilian life.8 During the years of the Vietnam War, the 

military has given over 200,000 General Discharges, thre e percent of th e discharge 

tota l.

Bad Conduct and Dishonorable Discharges are much less common, never 

amounting to more than one perc ent of all discharges in any recent year. Dishonorables may only be imposed by a general court-martial (i.e., one convened by an 

officer the rank of a general) and are the most severe discharges soldiers can 

receive. They are rarely imposed and then only in the most serious cases, such as 

murder, violent assaults and extensive dealing in hard drugs. During th e Vietnam 

War, a yea rly average of only about three of every 10,000 men released were given 

Dishonorable Discharges. Bad Conduct Discharges averaged a bout te n times th at 

number during the same period. They are imposed not only by general courtmartial, but also by special court-martial, which can be convened by a middle 

ranking officer and does not require a formal preliminary investigation.

At the middle of the hierarchy of discharges stan ds the Undesirable. Like 

Honorable and General Discharges, it is “administrative” bu t like Bad Conduct 

and Dishonorable Discharges it carries heavy penalties in civilian life. It is given 

most often for drug abuse, freq uent acts of misconduct, homosexual acts and 

conviction by civil auth orities of an offense involving “moral tur pit ude” or 

imprisonm ent for more tha n one year. Although Undesirable Discharges are 

imposed without the formal protectio ns of a court-martial, they are every bit as 

punitive as the punitive discharges only courts-m artial are allowed to impose. 

In fact, to many civilians the term “U ndesirable” on a discharge paper suggests a 

deepseated personality problem, while “ Bad Conduct” sounds m uch less se ri ou slike the comment a school teacher might make on a repor t card. Pa rt of the han dicap of an Undesirable Discharge is th at it suggests more than i t proves, and this 

is precisely why it is so dear to the military, which often cann ot prove as much as 

it wishes to suggest.

O U T FL A N K IN G T H E LA W

The relative importance of Undesirable Discharges is at once apparent from 

military statistic s. During th e Vietnam War (fiscal years 1965 to 1972, inclusive), 

the armed services dismissed 148,194 men with Undesirable Discharges—or six 

out of every seven who received a discharge less than honorable. Thus to speak of 

bad discharges is primarily to speak of Undesirable Discharges; tc call into question the administrative discharge process is to cast do ubt on the legal st atu s of the 

vast majority of less than honorably discharged veterans.

Fu rth er inspection of the Defense Department’s d ata discloses significant increases in the number of Undesirable Discharges in the last years of the war— 

both absolutely and relative to the total number of discharges. Until 1969, Undesirable Discharges averaged 11,500 annually; in fiscal 1970, the y jumped to 

22,537 and in 1972 to 40,018. Whereas in 1969 Undesirables represented 1.08 

percent of a total of 1,028,951 discharges, in 1972 the y represented 4.49 percent 

of a total of 890,354 discharges. Thus in spite of a decrease in separations, the 

number of Undesirable Discharges went up.

This increase is especially surprising because of changes in the milita ry’s policy 

toward drug abuse. As mentioned earlier, in July 1971—the beginning of fiscal 

year 1972—the Defense Dep artm ent announced it would not impose Undesirable 

Discharges on men who were identified as drug users through urinalysis tests or 

who volunteered for tre atm ent under the amnesty program. If urinalysis testing 

and amnvsty have been successful and if the military has carried out its professions of good faith, there should have been a decline in Undesirable Discharges. 

In th at light the figure of 40,000 Undesirables for 1972 acquires even more significance.
779

Part of the increase may have been due to the widespread malaise within the 

military and the deterioration of discipline and morale. But a substantial proportion may be traced to increased legal protections extended to defendants in 

special courts-martial. Beginning in fiscal year 1970 (the year in which Undesirable Discharges first increased 100 percent over the previous year), no soldier 

could be given a Bad Conduct Discharge unless he was afforded the following 

rights, in addition to those already present in a court-martial:

A defense lawyer. Previously a defendant was entitled to a lawyer only if 

the prosecutor was a lawyer.

A lawyer sitting as the military judge. Previously there was no requirement 

that any member of a special court-martial panel be a lawyer.

A verbatim record of the trial. Previously a summarized record was 

sufficient.

These changes strengthened the defendant’s position in several ways. Lawyers 

in the military are rarely career soldiers; they identify less with the military as 

an institution than with the law as a profession. Consequently, as defendant’s 

counsel or as judge, they were more likely to adhere to the explicit dictates of the 

law than to follow the implicit wishes of a commanding officer. And if the judge 

did place the demands of the service above the demands of the law, there was 

always the automatic review procedure tha t would be more meaningful now th at 

a verbatim transcript was available.

To close some loopholes, however, was only to encourage the military to exploit 

others more thoroughly. As a result of the reforms in the judicial system, the 

unreformed administrative system was put into heavier service. It was, so to 

speak, a process of elimination. A commanding officer who wanted to get rid of a 

man would often send him to an administrative discharge board instead of to a 

court-martial, where his legal rights might protect him from being discharged. 

True, some punitive sanctions were sacrificed— the administrative discharge 

board could not send a malefactor to the stockades— but then, the right discharge 

was likely to come swift and certain.

Members of a discharge board, as the name suggests, do not have a variety of 

penalties available to them.4 They have a simple choice: either retain the soldier 

on active duty or discharge him with an Undesirable, General or Honorable 

Discharge. Even before the case begins, they know one thing for certain. The 

“old man” wants this particular troublemaker out cf the service. If he wanted 

any other punishment, he would have sent the soldier before a court-martial. 

Board members also have more than an inkling of what kind of discharge the 

“old man” would like them to impose. Honorable and General Discharges do not 

require hearings. If he favored one of those, he would have granted it himself. 

So even before a word is said at the hearing, the “ old man’s” verdict is in and 

since he happens to be the commanding officer of the members of the discharge 

board, he gets paid more attention than most old men usually do.

The board will ordinarily have no trouble doing what is expected of them. 

For the soldier facing discharge who attempts to defend himself does not have 

available many of the most significant rights and protections normally present 

in a judicial proceeding. He also has a certain incentive to accept the will of the 

military since a discharge, even an Undesirable, will at least get him out of the 

service. “ Copping” an Undesirable yields relief of an immediate problem at the 

cost of shame later in life. Like the tatoo picked up by a young sailor on leave in 

an exotic port, it will remain with him as a stigma with little chance of ever being 

effectively removed.

Soldiers to be brought before an administrative board receive notice that a 

hearing will be held and must be apprised of the charges against them. If they 

choose to resist an Undesirable Discharge, they have the right to be represented 

by a lawyer and to make a personal appearance at the hearing (unless they are 

confined on a civil charge, in which case they lose t hat opportunity).

The accused do not have the right to confront all witnesses against them, 

a right guaranteed by the Constitution in all criminal proceedings, including 

trial by court-martial. The case against them may be presented solely on the basis 

of documents. Moreover, the administrative board does not have subpoena power, 

which makes it all the more likely that witnesses will not appear in person. If, for 

example, the person who prepared the investigation— usually a military policeman— has left the service or been transferred and is no longer available, the 

defendant will have no opportunity to cross-examine him on the allegations he 

has made. Lacking the vehicle of cross-examination, the defense case is often 

critically weakened.
780

The defense is weakened in another regard as well. While at a court-martial the 

government must prove the defendant’s guilt “ beyond a reasonable doubt,” it 

only needs a “ preponderance of the evidence” at an administrative proceeding. 

This is a much easier standard for the government to meet. Standards of evidence 

are also reduced. The rules of evidence applicable at a court-marital are applied 

only as strictly as the senior member of an administrative board desires. Since he is 

not a lawyer, he is not required to rule on objections made to the admissibility of 

evidence; his only duty is to note any objections for the record. B ut the record is 

not verbatim and consequently the objection may never actually be reviewed.

A further problem is double jeopardy. If a commanding officer convenes a 

court-martial, which acquits the defendant on a legal technicality, or convicts 

him but does not impose a discharge, he may simply send the soldier before an 

administrative discharge board on the same charges. The Defense Department 

specifically authorizes this double shot:

“ No member will be administratively discharged under conditions other than 

honorable if the grounds for such discharge action are based wholly or in part 

upon acts or omissions for which the member has been previously tried by courtmartial resulting in acquittal or action having the effect thereof, except when such

acquittal or equivalent disposition is based on a legagal technicality not going into

the merits.” 5

Among the legal technicalities “ not going into the merits” are violations of 

Fourth Amendment protections against unreasonable search and seizure and 

violations of Fifth Amendment protections against forced confessions.

Many cases involving drug use hinge on the issue of whether evidence was 

obtained in violation of the constitutional guarantee against unreasonable search 

and seizure. Often a commanding officer sends a soldier accused of drug use 

before a court-martial even when the admissibility of the evidence is doubtful. 

If the court then decides the search was unconstitutional, the general can convene 

a discharge board that is more responsive to his wishes.

An actual case will illustrate how the system works.6

 Bill, a corporal in the 

Marine Corps who had served more than three years without any involvement 

of a discreditable nature, was charged with five counts of possession of marijuana. 

His case was referred to trial by a general court-martial, where the maximum 

sentence would have been 25 years in prison. The preliminary investigation 

indicated there was only enough admissible evidence to charge him on one of the 

counts, which involved the possession of such a small amount of marijuana that 

it was actually described in the official charge as “ debris.” The court found him 

guilty and imposed a sentence of two months’ confinement. Since he had served 

more than three years without any trouble, the court understandably did not 

order that he be discharged. By the time the trial concluded, Bill had less than 

two months remaining on his obligated service, at which time he would have 

received an Honorable Discharge. But the general was determined this would 

not happen. By law, he could not impose a greater sentence than the court had 

awarded. So he rushed Bill’s case before an administrative discharge board, 

which complied with his desires, snatched Bill’s Honorable Discharge from him 

and dismissed him as an Undesirable.

It was easier for the board to deprive Bill of his Honorable Discharge than it 

was for the court because the board had evidence of all five counts before it. 

Bill had been tried by the court-martial on only one count because the preliminary investigation had revealed that evidence on the other four had been obtained 

in violation of the Fourth Amendment. The board was able to hear this evidence, 

however, because such protections do not apply in administrative proceedings. 

Furthermore, the board had read to it the testimony of a confidential informant 

that the reason only debris had been found was because Bill had been forewarned 

that his foot locker was going to be searched. Had the government used this 

statement at the court-martial, it would have had to reveal the identity of the 

informant. Anonymous testimony was accepted, however, by the discharge 

board.

Other abuses of the administrative discharge process are more subtle. In 

Okinawa a few years ago, a soldier charged with three counts of selling marijuana 

was found guilty by a special court-martial and sentenced to six months in jail 

and a Bad Conduct Discharge. A review by the general’s legal staff, however, 

indicated that two of the charges were legally deficient. The general’s legal advisor 

doubted whether the court of military review (the first level of review outside of 

the defendant’s chain of command) would uphold the issuance of a Bad Conduct 

Discharge for the conviction of only one count of selling marijuana. Consequently 

the general disapproved the Bad Conduct Discharge, but approved the six
781

mon ths’ confinement. He then ordered the soldier before an adm inistrativ e 

board, which imposed an Undesirable Discharge. What the general could not 

accomplish legally he accom plished adm inistrativ ely.

The issue in these cases is not whether the par ticu lar in dividual inv olved should 

have received an Unde sirable Disharge. The issue is rath er the ease with which 

the system is manipulated and the lac k of prot ection the average soldier has in 

adm inistra tive proceedings.

A L IF E S E N T E N C E

Before a soldier receives an ad min istrative discharge, he is counselled by lawyers 

and others as to what obsta cles he ma y enco unter in civilian life. One Army 

form that he is required to sign before exercisin g or waivin g his right to a hear ing 

includes the following statement:

“ I understand tha t I ma y expect to enco unter sub stan tial prej udic e in civi lian 

life in the eve nt a general discharge under honorable conditions is issued to me. 

I furt her understand that as a resu lt of the issuance of an unde sirab le discharge 

under conditions other than honorable I may be ineligible for many or all benefits 

as a vete ran u nder both federal and sta te laws and th at I ma y exp ect to enco unter 

sub stantial prejudice in civilian life.” 7

And so he does. An Unde sirable Discharge, former Califor nia Congressman 

Cly de Doy le once observed, is “ not onl y a stig ma ” bu t “ a life sentence unless it 

is chan ged.” 8 It is a life sentence, one might add, given to men sometimes onl y 

19 or 20 years old. Youth s who drop out or are expelled from high school have 

some chance to return and redeem themselves. Youth s who are expelled from the 

arm y do not.

Very few discharges are changed afte r a soldier becomes a vete ran. Men are 

discou raged from appe aling because the process usu ally take s years and requires 

legal assistance beyond their means. Th ey hav e been told, moreover, that appe als 

are usually fruitless, and the records bear this out. During a six- year period from 

1966 to 1971 the Arm y Discharge Re vie w Boar d upgraded app roximately 14 

percent of the discharges of those persons who appealed to it .’ Since at the most 

only one out of eve ry five veterans who receives a bad discharge ever appeals, 

those who had their discharges upgraded probab ly represent no more than 3 

percent of the total.

The difficulties in the discharge review system have been nowhere more eviden t 

than in the cases involving drug use. In Aug ust 1971 the Defense De partm ent 

announced that since it was no longer imposing Undesirable Discharge s solely 

for use or possession of drugs, men who had prev iously received Undesirables on 

those grounds could hav e them upgra ded. Eig ht months late r the policy was 

expanded to include the review of drug-related discharges issued by courtsmartial. The major purpose of these reforms was to enable such men to qualif y 

for trea tment in VA drug programs.

There was, however, no assurance t ha t changes would be m ade in an y par ticu lar 

case, nor were their firm rules on which discharges would be upgrade d. During the 

first yea r of the policy , 1,893 applicatio ns were received from men who received 

Unde sirable Discharges for drug use. Only 909 were upgraded. Each mi lita ry 

service was app arently free to apply its own criteria in these decisions; at least 

tha t is what the statistic s suggest. While the N av y upgrade d 343 out of 385 

discharges, the Arm y was willing to change onl y 154 out of 911 .10

Furthermore, although the milita ry announced in two press releases that it 

would agree to review drug -related discharges, it never bothered to inform the 

men themselves. Ther e was neve r so much as a single letter sent to the veterans 

inform ing them that their discharges might now be changed. Some men heard 

abo ut the new poli cy through newspapers; many others probab ly never hav e. 

One reason the militar y ma y not be eager to inform the veterans is the work 

load it might impose on the revie w boards. Th ey creep along at the laziest of 

paces, usu ally with a long backlog of cases. Were the new poli cy on drug -rela ted 

discharges to be effective, not only would veterans hav e to be inform ed of their 

rights, but the numbers of boards would h ave to be increased or the w ork capa cit y 

of current boards expanded.

T H E IM PA SSIV E VA

Contr ary to widesp read belief, federal law does not bar the Vete rans Adm inistration from dispensing benefits to most less than hono rably disch arged veterans. 

Were the agency to change its own procedures, new legislation would, in fa ct, 

not be necessary to permit VA hospitals to offer drug treatm ent to men wit h less 

than honorable discharges. The VA is also in a position to exte nd educational
782

assistance to veterans who are perpetual unem ploym ent statistic s. Bu t because 

of the wa y the VA has applied the law and the wa y it interprets its social fun ctions, the agen cy has not made such assistance available .

According to the law, benefits are available to all veterans who receiv ed discharges “ under conditions other than dishonorable.” Anyone who received an 

Honorable or General Discharge is unam biguously entitled to benefits. Anyone 

who received a Dishonorable Discharg e is unambiguou sly excluded from benefits, 

as is someone issued a Bad Con duc t Disch arge by general court-martia l. Un de ­

sirable Discharges and Bad Con duct Discharges issued by special court-m artial 

cons titute the “ gray area.” If a vete ran has one of these— and more than six ou t 

of eve ry seven Vietnam veterans with bad discharges do— the V A makes an ind ependent determination whether or not it was issued under dishon orable conditions

The agency has adopted its own rules on this question. A discharge issued 

mutiny, spying or homosexual acts is autom atically considered to be under 

dishonorable conditions. Mu tin y and spying charges appear prim arily in war 

movies, bu t rare ly in real life. Homo sexual acts, on the other hand, neve r occur 

in war movies but do occur in real life. The categorical position the VA has taken 

on cases of homosex uality reflects a highly trad itional view of moral behavior. 

Whether it is also constitutio nally corr ect to deny benefits on grounds of extr alegal moral attitud es is another question.

In addition to these specific categories of discharges which the VA has determined 

to be under dishonorable condirions, the agency has adopted two rather broad 

and sub jective criteria in its elig ibility decisions. A discharge is considered to 

hav e been issued under dishonorable conditions if it stemm ed from an offense 

inv olving “ moral tur pitude” or was the result of “ persistent and willful miscon duct.” Wh at cons titutes “ moral turpitu de” or “ persistent and willful miscon duc t” ? Wha tever the person ruling on the reque st for benefits decides. No one 

that we inte rviewed in the VA , either in the natio nal or regional offices, could 

offer any definition. The determination is made on a case-by-ca se basis witho ut 

the assistance of any guidelines. An older VA employee in Mon tgom ery, Alabam a, 

ma y consider smoking marijuana an offense inv olving moral turpitude, while 

his younger coun terpart in San Francisco would merely be amused.

Indeed, the criteria ma y be applied differently within the same office. The 

onl y guidelines would appear to be an unwritten presumption that the services 

only impose bad discharges for acts of moral turp itud e or persisten t and wil lful 

misconduct, because the VA hardly ever comes to any other conclusion. A recent 

stu dy b y the agen cy indicated t ha t 93 percent of the veterans with bad discharges 

who apply for educa tional benefits are denied them. 11

A vete ran who seeks benefits from the VA applies to his local office where he 

will be asked for his discharges papers. If the applicant has a Bad Con duc t or 

Undesirable Discharge, the VA employee will advis e him that his application 

must be sent to the regional office for an eligibil ity determination. At the regiona l office for an eligibili ty determination. At the regional le vel an “ ad jud ica tor ” 

will examine the app lica nt’s entire file supplied by the militar y service inv olv ed 

and then rule wheth er the veter an engaged in moral turpitude or persisten t and 

willfu l misco nduct. The adju dica tor will base his decree not only on info rmation 

the mi lita ry has provided, but also upon any sta tem ents su bmitted b y the vetera n. 

Ra rel y, however, will stateme nts be submitted since the applicant is not nec essari ly notified that he can do so. The veteran will pro bab ly also be unaw are of 

all the milita ry reports the adjudicato r has before him. Although the applican t 

technically has a right to see his file, he is never advised that he has that righ t, 

nor are copies of his file made availab le to him if he wishes to see it. He must go 

to the regional office during a wee kda y and look at the file there.

If the adjudicator determines that th e individu al is not entitled to benefits, that 

determin ation must be appr oved by an “authorizer .” The applican t ma y then 

file a “ notice of disagreement,” in which eve nt the case will be reviewed again, 

this time by a senior claims examiner and an authorizer. If they agree wit h the 

decision of their colleagues, the app lica nt will again be notified that this r eque st for 

benefits has been denied; this time, howe ver, he will receive a state me nt explainin g 

why the y have been denied. He will also be advised of his righ t to appe al, and 

finally— after two determinations hav e been made to deny him bene fits— he will 

be advised t ha t he may submit e vidence on his own behalf.

His appe al will be heard by the board of vetera ns’ appeals, whi ch has never had 

any Vietnam veterans among its members. The board is not limited to reviewing 

the adjudicator’s decision, bu t can com pletely reexam ine the entire record. However, it also has no guidelines for decid ing what is moral turpitu de or persistent 

and willful misconduct.
783

The vete ran has a right to be represented before th e board by a lawyer, b ut it is 

doubtful that he will be unless a beneficent friend or someone in his family w ent to 

law school. Lawyers are limited by sta tute to receiving ten dollars for all services 

they render to a veteran applying for VA benefits. The agency argues th at the 

lawyer’s fees would come from the benefits award ed and consequently limit w hat 

the veteran receives. When it is suggested that some benefits may be bette r tha n 

none at all, they note th at th e various v eterans’ organizations provide represe ntation. This is true, but the American Legion and VFW have not exactly been in the 

vanguard of organizations defending such causes as the righ ts of homosexuals, 

political dissenters and drug users. Yet if veterans w ith bad discharges cannot get 

help from one of the associations, they are prett y much out of luck altogether. 

Furtherm ore, the long participation of the associations in the appeal board procedures has made them part of the VA inner family and made it unlikely the y 

will seize upon unpopular cases. VA officials note with pride th at 25 representatives 

of veterans’ organizations have rent-free offices in VA hea dqu arte rs on Vermont 

Avenue in Washington, D.C. Their role can probably be better understood in 

term s of the kinship networks of traditional societies tha n in term s of the adversary tr adition of Anglo-American law.

To ensure th at the VA family remains free of outside scrutin y or interference, 

sta tutes p rohibit appeal to the courts of any decision by th e VA granting or denying benefits. Benefits have the legal sta tus of gratuities. The VA can no more be 

legally compelled to bestow gifts on veterans tha n children can be compelled to 

give presents on M other’s Day.

All this contributes to a degree of in stitutio nal privac y th at one normally only 

finds in expensive priv ate men’s clubs. Both the adjudicato r and the board of 

appeals may issue their decisions without having their notions of morality examined 

in a public inquiry. The veterans’ righ ts may be unprotected, bu t the prejudices 

of agency officials are perfectly secure.

Ordinarily the VA keeps no statistical records on benefit applications from ve teran s with Undesirable and Bad Conduct Discharges. A stud y of a five-month 

period in 1972, however, noted th at only 1,305 applications for educa tional benefits were received from men with bad discharges. Of these, 91 were approved. 

During this same period more tha n 4,000 veterans with bad discharges applied 

for unemployment compensation. (Although the benefits are dispensed by the 

Labor Dep artm ent, eligibility decisions are made by the VA.) Of the 4,000 men 

who applied, 3,400 were found ineligible. Ninety-seven of the cases involved 

veterans with drug-related discharges; six of these were approved. As one VA 

official remarked after seeing these statistics, Undesirable and Bad Conduct Discharges are effectively the same as a Dishonorable Discharge in terms of eligibility for v eterans’ benefits.

There is some question whether this practice represen ts the i nte nt of Congress. 

A veteran, as defined in the law, is a person discharged "un der conditions other 

tha n dishonorable.” Strictly speaking, th at means all men who served in the armed 

forces except those who received Dishonorable Discharges. The VA has taken it 

upon itself to inte rpret the definition as excluding nearly all of the men who received Bad Conduct and Undesirable Discharges.

Given the impassive att itu de of the VA, very few ve terans w ith bad discharges 

ever seek to establish eligibility for benefits. The board of veteran s appeals 

received fewer t han 100 appeals during 1972 involving th e cha racter of discharge. 

One possible explan ation for this figure might be th at adjudicato rs were granting 

eligibility, bu t as we have seen, favorable decisions at th at level are extremely 

rare.

The infrequency with which the VA grants benefits to less t han honorably discharged vfeterans has left the impression th at it has no power to do so—an 

impression which further discourages men from making appeals. In fact, so 

widespread is the opinion th at the VA has no discretion in this area th at several 

military lawyers contacted answered “absolutely no t” when asked whether veterans with Undesirable and Bad Conduct Discharges migh t be entitled to VA 

benefits. In th at light it is hardly surprising why so few veterans ever appe al to 

the VA.

SIM PL IF IC A T IO N , R E V IE W AN D R EFO R M

Both the military and the VA have vigorously resisted any efforts to change 

their adm inistrative procedures for granting and evaluating discharges. The 

military insists the adm inistrativ e discharge process must remain as it is to 

maintain discipline and efficiency, while the VA says its administrative procedures 

protect v eterans more effectively tha n formal judicial processes. The first of these
784

claims is a cana rd; military discipline can be m aintaine d under a changed administrativ e discharge process. The VA’s argument is belied by its own data th at 

indic ate the vast majority of veteran s with bad discharges are denied benefits 

on appeal. But whatever the rationale offered sepa rately by each agency, the 

combined effect of the two administrative system s is to deny entitlem ent to 

benefits without basic constitutional protections along the way.

The hea rt of the legal problem is the Undesirable Discharge. To guarantee 

veterans’ their fundamental rights, a critical step would be to deny administrative 

boards the alte rnative of imposing Undesirable Discharges. If the military 

wishes to dismiss a man under “less than honorable conditions,” it should have 

to condu ct a cou rt-martial to prove its case. If it does not conduct a court-martial, 

it should not have the power to impose a discharge th at will exclude a veteran 

from receiving benefits he is entitled to by law. In other words, administrative 

boards would be restricted to Honorable and General Discharges. The rule on 

eligibility for benefits would then be unequivocal, leaving the VA no room for 

discretion and eliminating its entire procedure for evaluatin g discharges in the 

“gray area.” Any veteran who received an administrative discharge—including 

one who received an Undesirable Discharge in the past—should be eligible for 

benefits. Any vete ran who received a discharge under dishonorable conditions 

after court-martia l should not.

In addition to this change, the military services should facilitate the process 

for discharge review. This particularly applies to those veterans who were dismissed for drug-related causes prior to August 1971, when Defense Department 

policy in th at area changed. If someone who received a bad discharge under the 

old policy would have received a good discharge under the new policy, reclassification should be automatic. Others whose cases may be less clear should be 

notified of the opportu nity for review. To meet the increased work load these 

reviews will create, the Defense Department should establish additional review 

boards as needed, possibly on a regional basis so th at they are more accessible 

to veterans in areas far from Washington.

To raise the issue of discharge review is, of course, to enter upon a much larger 

ma tte r th at relates to the Vietnam War and the whole question of amnesty. 

Emotions on this subject are still intense, and prob ably only in a more distant 

and quiet time will the nation find th at spirit of charity which characterized 

Lincoln’s attitudes towards the South in a far more divided era tha n our own. 

We will have to ask ourselves then whether a reasonable man might not have 

been legitimately disaffected in the army during the Vietnam War and led to act 

in ways th at cost him a less tha n honorable discharge. And even if we rejec t t ha t 

possibility, we will still have to ask whether it is right to mark a man for life for 

crimes of youthful alienation or merely youthful exuberance. But these, of course, 

are questions for the distant future. It took us a decade to slip into Vietnam. 

Surely it will t ake us at least a decade to slip out.

J ewish War Veterans of the United States of America,

Washington, D.C., March 15, 1974-

Hon. R obert W. Kastenmeier,

House of Representatives,

Rayburn Building,

Washington, D.C.

Dear Mr. Chairman: Subm itted herewith, for insertion in the record of the 

hearin gs conducted by you on Amnesty proposals, is a policy statem ent adopted 

by the Jewish War Veterans of the United States of America by the Jewish War 

Veterans of the United States of America las t August at our 78th Annual Natio nal 

Convention.

The JWV position on Amnesty is the product of consideration, discussion and 

debate in our resolutions committees and national conventions during the past 

thre e years. It represents a desire to further national consideration of a problem 

th at troubles so many Americans. We believe th at a Commission for Natio nal 

Reconciliation representing the spectrum of opinion on the sub ject would provide 

a practical instrum ent for achieving the necessary consensus to obtain a significant 

measure of national unity on so divisive an issue.

Tha nk you for your consideration.

Respectfully,

Felix M. Putterman.

Enclosure.
785

N ati ona l C om m is si on fo r R eco n c il ia tio n

Not since the Civil War, over a century ago, has this nation suffered such 

internal turmoil over the consequences of participation in a military conflict. 

The fragile peace in Vietnam recently achieved has awakened hopes for international reconciliation. This blessed achievement presents now a significant 

opportu nity to reflect upon the domestic turmoil which emerged in the past decade 

as a result of the United States involvement in Vietnam as well as to enlist a broad 

spectrum of American leadership with the assigned mission to evolve new pathways 

for national reconciliation.

Who would dispute th at the cancer of segregation and racism which permeated 

our national life this p ast c entury could have been mitigated, if not averted, had 

Presidential leadership after the Civil War sought to heal the wounds th at divided 

this nation? Histo ry has recorded the tragic evolution of catastrophic even ts 

since 1865 which have undermined American unity.

The residue of unresolved public issues from the Vietnam conflict are patently 

manifest to most Americans. There is an obvious need to develop effective programs for the rehabilitation and reintegra tion of Vietnam vete rans in peaceful 

domestic life. There is the challenge to reestablish links and to tre at with moral 

justice those thousand s of young men who soug ht to avoid their full military 

obligations. The JWV proposes they be treate d with fairness but is opposed to a 

policy of general Amnesty. There is the crying problem of reaching a growing 

generation of cynical and disenchanted young people who seem to lack faith in the 

survival of a democratic America.

Only dynamic leadership from the P resident of th e U nited States who represents 

the collective judgment of the electorate can unite the divergent forces in this 

country to focus atte ntion on these crucial issues. Through the appointment of a 

National Commission for Reconciliation, represen tative of th e broadest spectru m 

of the American community, the process will be launched to heal the "wounds of 

the Vietnam War and to reach out for national purpose and unity.

Am nest y R eso lu tio n of P ly m ou th C o n g r essio n a l C h u r c h, M in n e a p o l is , 

M in n .

Whereas the United States has granted amnesty after every war in some form 

or degree, as well as after several insurrections, as have other nations from time 

immemorial; and

Whereas amnesty is a legal act, the law’s way of forgetting p ast differences and 

political offenses so th at the body politic may be given the chance to heal, and 

thereby strengthen our country; and

Whereas amnesty is not a rendering of moral judgment and, therefore, may for 

good and proper reasons, be supported by citizens w heth er or not they agree w ith 

those who would receive amnesty; and

Whereas citizens have engaged in acts of civil disobedience because of the ir 

fundame ntal disagreement with our governm ent’s policy on Indochina, the ir 

opposition to the dra ft and other military laws number in the hundred s of 

thousands; and

Whereas this natio n has been built on the fundamental principle of dive rsity 

of opinion and respect for conscience, and dare not abandon it: Therefore be it

Resolved, That we, the undersigned, urge the granting of a general and un ­

conditional am nesty by the Congress of the United States, and the P resident to all 

dra ft refusers, deserters, persons convicted by courts-m artial for military offenses 

not punishable under civilian law, veterans with less tha n honorable discharges, 

and civilian protesters and resisters to the war, thus allowing full restoration of 

all civil, political, property and other rights.

St a te m e n t on Am nes ty o f Stu a r t I n n e r st

My name is Stuart Inne rst. I reside at 5840 Camino de la Costa, La Jolla, 

California. I am a member of the Society of Friends (Quakers) and for many 

years have been associated with the Friends Committee on Natio nal Legislation, 

the American Friends Service Committee and other organizations in atte mp ting 

to end the war system and build a world founded on law and order.
786

I am te stifying on my own behalf as a concerned citizen, b ut I believe tha t what 

I have to say is shared by many Americans who now feel th at the public was 

deceived and misled (as th e Pentagon Papers amply show) into supp orting a war 

th at this country should never have fought, and th at th e young men who resisted 

the war should not now be punished for having done what the nation should have 

done. They refused to become involved in a civil war 10,000 miles from our shores 

with a little nation tha t posed no th reat to the United States and had n’t attack ed 

it. Therefore, the y deserve to be granted amnesty.

Amnesty means “a forgetting, a deliberate overlooking.” It is what President 

Nixon did when he went to Peking and Moscow in 1972. No one had condemned 

the actions of these two nations more vehem ently tha n he, bu t he made an 

about-face and gran ted them amnesty. He did “a forgetting” of their sins and 

drank toasts to their leaders. Later he granted amnesty to Hanoi and offered to 

rebuild its war-ravaged country. For this change of attitude toward former 

enemies the President is to be highly commended.

If President Nixon can suddenly overlook crimes he held against the Communists for years, why the unforgiving and unforgetting att itu de toward young 

Americans whose only “crime” is th at they refused to fight in what the y and 

many other Americans felt was a senseless war? When the President was asked 

at a press conference on Jan uar y 31, 1973, whether he had anything in mind 

to help heal the wounds of the war, particularly regarding amnesty, he replied: 

“Now amnesty means forgiveness. We cannot provide forgiveness for them. Those 

who served paid the price. Those who deserted must pay the price. The price 

is a criminal penalty for disobeying the laws of the United State s.”

The Presiden t’s position of demanding punishment is not only contrary to 

religious principles in general, and those of Friends in particula r, bu t also is a 

far cry from the Nurem berg trials in which this country took the leadership in 

putting to death men it condemned as “war criminals.” What was their crime? 

Precisely what the draft evaders and deserters refused to do. If it was criminal 

then for Germans to obey government orders rather tha n conscience, why is it 

now criminal for Americans to have done the opposite?

The young men the President would now punish are not an alien breed. They 

are America’s children, flesh of our flesh and blood of our blood. Most of them 

were not unpatriotic in rejecting the dra ft or deserting from the armed forces. 

They distinguished between love of coun try and obedience to a government 

engaged in waging a war with out a cause worthy of their devotion.

Something fine that home, school and church had put within them revo lted 

aga inst the lopsided conflict in Indochina. The wealthiest and mightiest nation 

on earth was unleashing the most ghastly weapons and the greatest fire power 

in the history of warfare against a small impoverished people who wanted to be 

free from colonial rule and western interference.

If amnesty is to be given fair consideration, it must be viewed against the 

background of the government’s Vietnam policy. What the government did was 

in a large measure responsible for wh at the war-resisters did. It was a war that 

“nobody wanted.” The war-resisters who had been expected to fight it, acted on 

the ir convictions and refused.

The nation embarked on a disastrous course in East Asia, as Walter Lippmann 

early poin ted out, because i t was “untrue to itself.” It repudiated the principles 

of the Declaration of Independence by supp orting the colonial w ar of the French 

aimed at denying Indochina its independence. It then violated its pledge to 

sup port the Geneva Accords by backing Ngo Dinh Diem; who disregarded the 

Accords; spurned the United Nations Cha rter by intervening unilaterally in 

Vietnam’s civil w ar; and violated the Constitution by waging the longest war in 

our history withou t declaring war.

While the government itself was actin g in what can accu rately be called a 

lawless manner, it was demanding th at its young men be law-abiding and risk 

their lives fighting an illegal war. The government was “un true to itself,” then 

asked young men to raise no questions abo ut conformity to its far from exemplary 

conduct. Th at millions of Americans protested the ir government’s systematic 

destruction of the land, the people and the culture of Indochina is in our finest 

trad ition.

Th at hund reds of thou sands of young Americans had no stomach for such a 

war is to their everlasting credit. To punish them for their resistence would be a 

further betrayal o'f th e highest values in America’s political, religious and moral
heritage . Instead of punishm ent, what is needed now is a new beginning for both 

the nation and the war resisters. Th at is wh at amnesty means.

It is argued th at gran ting amnesty will weaken the milita ry’s future defense 

capabilities. This is doubtful. The future will take care of itself if the government 

so conducts itself as to command respect and loyalty.

But is amn esty fair, someone asks, to th e men who fought and “paid the price” ? 

This implies th at the men who chose exile, deserted or went underground have 

not paid a price. Every counsellor of such men knows something of the mental 

agony they experienced. Who can measure the price of loneliness, alienation from 

family and friends, harassment, deprivation, insecurity, uncertainty regarding 

the future, the feeling of being scorned by the crowd and always pursued by the 

FBI? The tru th is that both those who fought a nd those who refused to fight are 

victims of th is war, and th at the natio n needs to act with compassion toward all 

of th e victims of Vietnam.

Other arguments in favor of amnesty include the American trad itio n of loyalty 

to “a moral power higher tha n the state” and the wrongness of forcing 18-yearolds to choose between limited options of fighting in an unjust, futile war, or going 

to jail, into exile or underground.

The most compelling reason for amnesty, however, is th at the country needs 

it for its own well-being. Amnesty would help to restore to American you th the 

confidence they have lost in their government. And it would bring back from 

exile tens of thousands of young people who can make valuable contributions to 

this country.

In his testimony at the Senate hearings on amnesty, Dr. Henry Steele Commager said: “M ay we not say th at the majority of those who deserted or went 

underground merely took ‘prematurely’ the position which the majority of 

Americans now take. . . . May not the deserters and evaders claim th at their 

error is to have been ahead of public opinion and of government policy, and that 

it should be easy to forgive the error?” Many of these young people—a nd many 

older ones too—understan dably feel, not they bu t the government needs 

forgiveness.

The sum of the ma tte r is this: The war in Vietnam was the outgrowth of a 

tragic mistake this country made at the end of World War II, when it took upon 

itself the duties of global policeman. Blinded by self-righteousness and misled 

by power it assumed th at it had the answer to the world’s problems and th at it 

was wise enough and good enough to shape the destiny of nations.

This country’s invasion of Cuba an d the Dominican Republic, and the meddling 

in Chile’s politics in recent years are but several of the many chapters in the sordid 

story this nation has written thro ugh the cloak and dagger o pera tion of its wellfinanced “ invisible governm ent” , th e CIA. If we are to be hone st with ourselves, 

we must adm it th at it is the story of a government tha t increasingly reveals itself 

to be morally bankrup t. Its alliance with petty, corrupt dictato rs througho ut the 

world is a complete betray al of the principles on which the nation was founded and 

to which it continues to give lip service.

If we are to observe in a meaningful manner the birth of the nation in 1976, 

nothing is more needed tha n to repe nt of th e imperialistic follies of re cent decades, 

to atone as far as possible for having waged at a terrible cost one of th e crud est 

and most unjus t wars of history, and to dedicate ourselves anew, as a nation, to 

the values embodied in the image of ourselves at our best.

Th at is why amnesty becomes an issue of param oun t importance. It would 

recognize th at “ the nation owes a deb t to the consciences of its citizens,” as Jo hn 

Benne tt poin ts out, and th at the men who conscientiously resisted the war have 

an importa nt moral and spiritual contribution to make to American society. 

Amnesty would reaffirm th at this indeed is America, and th at here we do not 

emulate the “ police state” in demanding universal conformity und er pain of 

punishm ent.

Amnesty has been w ritte n into the Constitu tion and has been granted at various 

times to those who not only opposed government policy, bu t actually fought 

against the government. Lingering hate and vindictiveness can serve no creative 

purpose. The nation needs the chastening and cleansing experience th at will 

spring from practicing Lincoln’s policy from an earlier b ut in many respects quite 

similar day in our history: “ With malice toward none, and cha rity for all.”
788

St a t e m e n t of E dw ar d J. D am ato— N a tio na l C o o r d in a to r, V ie tna m

V e t e r a n s A g a in st t h e W ar/W in t e r S o l d ie r Or g a n iz a tio n

My name is Ed Damato and I am a National Coordinator of Vietnam Veterans 

Against the War/Winter Soldier Organization. As you m ay know, our organization 

was formed by people who were veterans of this government’s illegal war of 

aggression against the peoples of Indochina. As such, we came to learn first hand 

the monstrous crime the US government was perpetrating there. We came to 

understand that it was not only our moral but our legal responsibility as well, to 

resist that war. An understanding that was based on the moral precepts of our 

society as well as the Nuremberg principles, the Geneva conventions and the US 

Constitution. Because we see resistance to the illegal was still being waged in 

Indochina by the US Government as our obligation and our duty, because we 

continue to urge others to do likewise, we are speaking to you today on the subject 

of universal and unconditional amnesty.

The WAW /W SO feels that amnesty for resistance to this war must be won by 

the American people. By amnesty, we mean no such thing as pardon or forgiveness. 

We firmly believe that those who resisted the war committed no crime. Precisely 

put, amnesty rather signifies tha t resistance to the war was legitimate, that it 

was legal and in fact demanded by the situation. Our nation must come to terms 

with the fact that the government’ s war in Indochina was, and is, totally wrong. 

If not, the lesson of what the war in Indochina means will be lost and we will 

inevitably find ourselves entangled in a similar war in the not-too-distant future. 

Achieving universal and unconditional amnesty is the best way we know of driving 

that point home, as well as ending the incredibly oppressive conditions affecting 

the hundreds of thousands of US citizens in need of an amnesty.

Attached to this statement is VVAW/W SO’s formal position paper on the 

amnesty issue. I t elaborates the subject with much greater clarity than I possibly 

can in this short period of time. It speaks to our demand for an unconditional 

amnesty; one that would entail no alternative service or other punitive measures, 

or case-by-case judgment. It also speaks to our demand for universal amnesty; 

one that would encompass all categories of resistance to the war and the racism 

and oppression of m ilitary life t hat was part and parcel of it. These categories are: 

1) the military resisters, (so called deserters), and draft resisters in exile or underground in the US, 2) all people who are or have been, in civilian and military 

prisons or those who are sought for prosecution because of their opposition to the 

war, including a clearing of their records, and, 3) finally the more than half million 

veternas with less-than-honorable discharges.

It is to this final category of resisters in need of amnesty that I would like to 

now address myself. While WAW /W SO is clearly seeking universal and unconditional amnesty for all the various categories of war resisters, special emphasis 

must be placed on the plight of the more than one half million veterans with lessthan-honorable discharges. Unfo rtuna tely badly discharged veterans, unquestionably the largest single category of war resisters, are rarely if ever viewed as being 

part of those in need of amnesty. Part of this is the result of thd national media— 

when discussing amnesty i t has consistently chosen to focus on the highly visible 

exile community in Canada and Europe, to the total exclusion of all other categories of resisters. Part of this is the result of the government’s own manipulation 

of the issue— when making statements on amnesty, government officials always 

seem to steer them aw ay from the subject of badly discharged veterans, away from 

an issue of extensive and direct importance throughout communities here in the 

US, to the distant safety of Canada or Sweden. The fact of the matter is that all 

too few people in this country are even aware tha t veterans with less-thanhonorable discharges are just as much in need of an amnesty as the exiles in 

Canada and Europe.

The military system of discharges is something most people, including GIs and 

veterans, poorly understand. A more unjust, racist institution would be hard to 

find. There are five types of discharges issued by the military: honorable, general, 

undesirable, bad conduct, and dishonorable discharges. Only two of these, bad 

conduct and dishonorable discharges, are given as a result of a court-martial. The 

rest are given by administrative procedure. Of the approximately one half million 

Vietnam era veterans with less-than-honorable discharges all but 33,000 were 

given administratively, with the individual receiving the discharge not being 

able to cross-examine witnesses, challenge affiidavits or appeal decisions in military 

courts.
789

Whether punitive or administrative, all less-than-honorable discharges play 

havoc with people’s lives. Badly discharged veterans are rarely eligible for the 

GI Bill or VA benefits. Many veterans wounded in combat in Indochina, who 

later received a less-than-honorable discharge from the military, now find the mselves ineligible for any medical care for problems stemm ing direc tly from their 

wounds. A more monstrous injustice is hard to imagine. Needless to say, all 

badly discharged veterans have a miserable time finding decent jobs. Repre sen tative Seiberling of Ohio conducted a survey th at found over one half of all companies 

polled adm itted job discrimination in hiring of less-than-honorably discharged 

vets. The problem is growing. Last year alone, the army issued over 50,000 lessthan-honorable discharges, or 16.4% of all discharges in 1973! (DOD figure for 

fiscal year 1973)

The problem facing these veterans is part of th e disaster caused the American 

people by the US government’s war in Indochina. This war has caused, to date, 

over six million Indochinese casualties and left the US with over 55,000 dead 

and 300,000 casualties. Bad discharges resulted from the resistance to the war 

and the racism and oppression of the military, (in 1972 th e DOD “noted ” th at 

Black GIs were twice as likely as White GIs to receive less-than-honorable 

discharges.)

Because the war was wrong, resistance was right. Just as we are now raising a 

demand for amnesty for those who resisted the war by going into exile, un de rground or prison, so we are raising the same demand for GIs who resisted the w ar 

and the military. These are the half million Vietnam era veterans who received 

less-than-honorable discharges. This amnesty m ust be universal and uncond itional.

Thank you.
790
791

AMNESTY STATEMENT OF DELEGATES OF EXIL ES, ACTIVEDUTY GI’s, AND VETERANS

PARIS, FEBRUARY 19-21, 1973

At a time when we are told the war is coming to an end, American troops, 

material and advisors still remain in Indochina and U.S. intervention in the affairs 

of the Indochinese peoples continues. We, w ar resisters in exile, active-duty GIs, 

and veterans demand that the U.S. government withdraw all its troops from Indochina and stric tly adhere to the January 27 agreement to end the war.

The American govemments’s illegal intervention in Southeast Asia has been 

opposed by a majo rity of the American People. Hundreds of thousands of men and 

women in the U.S. have suffered a loss of c ivil rights, liberty, and jobs because 

they have been in opposition to the war or subjected to the racism and oppression 

of the American military and draft systems. Contrary to Nixon’s deliberate 

distortion about the “ few hundred’’ anti-war exiles, there are in fact 60,000 to 

100,000 of them. But the m ajo rity of war resisters are inside the U.S. where an 

estimated 200,000 live underground. Thousands are behind bars; many have court 

records; and over 500,000 veterans have less than honorable discharges.

We demand universal, unconditional amnesty (with no alternative service or 

other punitive measures, or case-by-case judment) for:

1. A ll m ilita ry resisters (so called “ deserters’ ’ ) and draft resisters in exile or 

underground in the U.S.;

2. All people who are, or have been, in civilia n and milita ry prisons, or those who 

are sought for prosecution because of their opposition to the war - this includes a 

clearing of the ir records.

3. The more than half million veterans with less than honorable discharges.

War resisters are not criminals; the real criminals are the American Government leaders who have violated the U.S. Constitution and Inte rnational Law in 

waging this war. It is these people who are responsible for the death and 

destruction in Indochina and for the hundreds of thousands of Americans killed or 

wounded in combat.

The perpetration of this illegal war by the United States has violated the honor 

that should surround one’s service to one’s country. Only an amnesty which is 

universal and unconditional will tru ly mark an end to the U.S. government’s 

disastrous policy in Indochina and at the same time serve to prevent all such 

future wars.

(The following is a more detailed explanation of the national position of W AW - 

WSO on amnesty. This paper was written by representatives of RITA-ACT, the 

National Law yer’s Guild, Pacific Counseling Service, Campaign for Amnesty and 

Vietnam Veterans Against the War-Winter Soldier Organization. It was adopted as 

♦he official position of WAW-WSO at the National Steering Committee Meeting 

held in Placitas, New Mexico from Ap ril 19-23).
792

V ie tn am V ete ra n s A gain st th e W a r/W in te r S o ld ie r O rg an iz ati o n

P o sit io n P a p e r on A m nes ty

T ab le of C onte nts

A m est y S ta te m en t of D ele gate s of E x il e s, A cti v e-D u ty G .I . s

an d V e te ra n s .......................................................................................... p. i

B a c k g r o u n d .................................................................................................... p . 2

T ypes of R e s is ta n c e ..................................................................................... p. 2

R efu se d R e g is tr a ti o n o r In d u c ti o n .........................................................p . 2

L iv in g W ith in th e U .S ...................................................................................p . 2

L iv in g a s E x il e s ...............................................................................................P - 3

M il it a ry R e s i s t e r s ..........................................................................................p . 3

M il it a ry R e s is te r s A ft er V ie tn am D ut y................................................o. 4

R e sis ta n c e D is c h a r g e s .................................................................................p. 4

C iv il ia n P r o t e s t e r s ..................................................................................... P - 5

A m nesty S e n t i m e n t ..................................................................................... p . 5

G o v ern m en t's A n ti -A m n est y P o s i t i o n ................................................p. 6

E c o n o m ic s...........................................................................................................p . 6

O ur S t r a t e g y ....................................................................................................p. 7

D ef in itio ns . .......................................................................................... .... . p. 7

C a se -b y -C a se R ev ie w s.................................................................................P - 7

D is ch arg e U p -G ra d in g .................................................................................p. 7

U ni ty in D em an d fo r A m n e s t y . ..............................................................p . 8

A m nest y a s P a r t of th e A n ti -w a r M ovem en t..................................... P - 9

A m n esty a s P a r t of th e A n ti -im p e ria li s t M o v e m e n t................... P - 9

A m nest y an d th e V olu nte er A r m y .........................................................p . 10

D om est ic C o u n te r-i n su rg e n c y ...................................................................p. 10

A m nes ty an d D om es ti c O rg an iz in g .........................................................p . 11

Con cl ud in g T h o u g h ts ..................................................................................... p . 1 2
793

BACKGROUND

There are several basic starting points which are relevant to any discussion of 

the amn esty issue. First, U.S. intervention in Indochina has been by Presidentia l 

decree only, without the declaration of war by Congress. Therefore, it has always 

been an illegal war. In addition to illegal entry, the U.S. has violated the Geneva 

Accords of 1954 and 1962, the International Rules of War and the Nuremberg 

principles that it stated in the Nazi trials after World War II. The latter held that an 

individual is personally responsible for his or he r own acts, no matter what orders 

may have been given by a higher civilian or military authority. Resistance to 

fighting in that war, therefore, came from several conclusions about both the spirit 

and letter of domestic and international law. Additionally, there was the 

widespread feeling that the U.S., as a superpower, was interfering in the internal 

affairs of other countries for reasons that had nothing to do with national security 

or defense.

TYPES OF RESISTANCE-Hundreds of thousands of American men legally 

resisted the draft. They found ways to prevent their personal involvement in the 

Vietnam war. These ways include: CO status, staying in school, getting jobs which 

carried draft exemptions, finding medical excuses (often provided by anti-war and 

sympathetic doctors), etc. The common basis for all these types of actions was the 

financial ability and availability of information to essentially a middle-class 

group. These people ar e usually not counted among figures of resiste rs because 

their forms of resistance carried no penalty. But in fact, they form an enormous 

base of people who acted as they did because of anti-war sentiment; and they ou gh t

to realize that their actions were responsible for both the increase d anti-war 

sentim ent in the population at large, an d also for the necessity of other young men 

taking their place in the draft. This la st fact had particularly high consequences 

for the working class, poor and third world segment of society. We should look to 

this group of successful resisters for help in organizing local amnesty campaigns.

REFUSED REGISTRATION OR INDUCTION-The majority of those men who 

refused to regis ter or who refused induction a re still vulnerable to prosecution. It 

was these acts of resistance which focused public attention on anti-war resistance 

to the draft. Resistance has also resulted in a tremendous court backlog of cases. 

The courts are now moving to prosecute these cases after a slowdown of several 

years. It is clearly the hope of the Nixon administration tha t the ceasefire 

agreement has taken public attention away from these cases.

LIVING WITHIN THE U.S.-The government is currently paying par ticu lar attention to those resis ters who are politically conscious and active. While we may 

predict th at many resisters will be dealt with leniently, we also think tha t those 

who are active will be dealt with in an extremely harsh manner (i.e. mem bers of 

groups like the Puerto Rican Revolutionary Workers Organization, Rising Up 

Angry, et c.) Public silence around these trials will result in the division of visible 

politically conscious people from others, and we should not allow that division to 

2

31 -65 8 0 - 7 4 - 5 2
794

take place. For the most part, we can assum e tha t the men involved can be 

organized around their own defense.

LIVING AS EXILES-T here are presently about 200,000 men in America who are 

eithe r fugitives from the draft or military, awaiting tria l, or in prison. Canadian 

exiles number upwards of 60,000, including both the resiste rs and their families. 

There are also several thousand in other countries. These men have been forced to 

completely change their lives. They have left friends, family, and country to avoid 

compromising their political and moral beliefs. An economic analysis of this group 

would show that, for most, legal forms of resistan ce were not feasible. Resisters 

who were able to plan th eir exile in advance were better able to take ad vantage of 

Canadian immigration requirements; many have made new lives and have applied for Landed Imm igrant Status. Some of the dra ft resiste rs and almost all 

deserters do not have either the skills or the financial backing to attain such status. 

It is this latter group that Canada has recently begun to move against and will 

eventually deport. They ar e the most vulnerable of the exiles.

MILITARY RESISTERS-Men who left the military aft er induction ar e that group 

for whom alternatives were very few. They largely come from poor economic 

backgrounds. Many did not have information about the various forms of legal 

resistanc e which were available. They did not have information about the realities 

of the war itself and became awa re of its nature only after they were in the 

military. Many of them believed tha t the war was necessary in order to protect 

their country, and many were persuaded that it was their patriotic duty to defend 

us against communism.

This group has always been the “cannon fodder” of any war. They have 

traditionally reg arde d the military as a way out of their economic situation and as 

a mea ns to helping their families. Not only did this group always have difficulty in 

obtaining good jobs, but over a period of time they have been forced to be 

prim arily concerned with their own survival. Enterin g the military, either by draft 

or by enlistment, was always seen as one more way of survival among a dismal set 

of choices. Of this group, third world young men in particular believed military 

propaganda about opportunities; but by virtue of their duty assignments, they 

were relegated to that group which would be the most likely to be killed or wounded 

in action.

Figures about the size of this group are difficult to asce rtain. The military 

automatically classifies all AWOLs as deserte rs after 30 days. However, we can 

get some idea of the potential size of this group. In 1966, th ere were about 16,000 

AWOLs and de serters from the Army alone. In 1970, this figure increased to over 

65,000 AWOLs and deserte rs from the Army. Up until the last few years, the 

majority of exiles in Canada were draft resisters. However, during the last two 

years, 90 percent of the re sisters who went to Canada were m ilitary resisters. The 

majority of the exiles in Europe have always been military resisters.

3
795

MILITARY RESISTERS AFTER VIETNAM DUTY-There a re a sizeable number 

of deserte rs and AWOLs who left the military afte r their period of duty in Vietnam. 

This group reacted in a particularly strong way to their experiences in Vietnam. 

They came to hate and distru st the U.S. milita ry machine, based on their only too 

acute perceptions of what the Vietnam war was all about. With virtually no advance preparation, but understanding that they were being forced to take 

tremendous risks, this group deserted wherever they happened to be - in Western 

Europe, sometimes in Canada, or in the U.S. itself.

RESISTANCE DISCHARGES-Since 1963, 500,000 GIs have received discharges 

under less than honorable conditions. Thousands more are currently in stockades 

and brigs as a result of their resistance to the war while inside the military 

machine. Many of these ac ts took the form of direct actions ag ainst the racis m and 

oppression of the military.

The general breakdown of military morale, discipline, and credibility was the 

result of a growing awareness on the par t of GIs with rega rd to the responsibility of 

the military for the war and the manner in which it was waged. It was also a 

reflection of resistanc e to the oppression of the military, as well as a sign of the 

growing sense of unity with other young people whose values, life-styles and 

politics were in direct contradiction to those of the people in authority. The r eac ­

tion of those soldier who had fought in Vietnam was extremely bitter, and although 

most of them did not leave the military, they did engage in acts of protest, of 

outrage, and of frustration. For third world GIs, the racism exhibited by the officers and the military machine itself was even less tolerable after service in 

Vietnam than before. There was also a growing sense of unity with other 

resistance movements, i.e. the black movement at home. A black draft avoider in 

Canada voiced these sen timents: “I ’m not a draf t evader, I’m a runaway slave. I 

left because I was not going to fight white America ’s war.” In 1972, black soldiers 

received 20.7 percent of all Bad Conduct Discharges and 32.6 percent of all 

Dishonorable Discharges. This is an example of the disproportional numbers of 

less than honorable discharges given to third world people.

The attemp ts of the military to stem this wave of protest and rebellion caused 

even more problems. Discipline became har she r and the general climate of 

repression became stronger. These conditions produced even more individual acts 

of protest against the military. We should be prepared to understand and analyze 

these unconscious acts of resistanc e as atta cks on a system that was both the 

target of anti-war sentiment and the oppressive mach inery tha t had helped to 

crea te the problem.

This group of men cam e out of the military with less than honorable d ischarges 

and often with criminal records. They do not receive veterans’ benefits, have 

enormous difficulty in getting a job or education, and have larg ely been forgotten 

because they are easy to ignore. Any campaign for amnesty must, therefore, include a demand to upgrade these discha rges and clear these records, along with 

amnesty for civilian and military resisters.

4
796

CIVILIAN PROTESTERS-By the governm ent’s creation of an illegal war and a 

draft which was then also illegal, and by virtue of a monopoly of channels of information about the war and protest to this war, the s tate also created the need for 

“illegal” acts of protest which could break through that monopoly. Members of the 

U.S. m ilita ry were forced to brea k military law in order to protest the wa r, and 

civilian young men who did not have legal means of resistance open to them were 

forced to break civilian laws in order not to participate in tha t w ar. Also, there is a 

group of civilians who engaged in anti-war protests of differing kinds for purpose 

of gaining public attention and focusing it upon the n ature of U.S. involvement in 

Vietnam. While their milita ry counterparts serve time in brigs and stockades, the 

civilian men and women are serving tune in prisons and jails. Amnesty should 

include organizing around all those who were forced to break the government’s 

laws in order to resist and pro test U.S. actions in Indochina. Just as we are calling 

for the clearing of criminal records for those who resisted within the military , so 

we also include the sealing of criminal records, as well as the dropping of charges, 

for civilians.

AMNESTY SENTIMENT

A Gallup poll taken in February, 1973, on the subject of attitudes toward draft 

avoiders (no figures are available about attitudes toward amnesty for military 

resiste rs) shows that twenty-nine percent of the population alre ady favors unconditional amnesty. An additional ten percent feel tha t non-military service 

should be required, and another eighteen percent feel that a choice of either 

military or non-military service must be required. Eighteen percent more feel that 

military service must be required. Thus, seventy-five percent of those surveyed 

are sympathetic to some form of am nesty, conditional or unconditional, for draft 

avoiders. We feel th at these people a re educatable to a position of complete and 

unconditional amnesty for all war resisters and protesters. Particu larly when 

considering all forms of resistanc e together, we feel that people can come to 

support the upgrading of discharges as well.

Our analysis of feelings about amnesty on the pa rt of the general population is 

partially based on the Gallup Poll note that four times as many men as women 

think tha t draft avoiders should be given jail sentences (10 percent). Mrs. Pa tricia 

Simon, the mother of a son killed in Vietnam and a supporter of unconditional 

amnesty for all m ilitary and civilian resis ters noted: “I think that men like Nixon 

are more threaten ed than women by the idea of amnesty. F or them, masculinity is 

still identified with force and violence. It’s an ancient definition, but it still applies .” We think that Mrs. Simon’s statement explains th e Gallup Poll figures and 

concludes that women of all classes are apt to be m ore sympathetic than men to 

the position of amnesty. However, this should not be seen as a strategy for 

organizing which would s tres s classless appeals to a maternal sensitivity. We 

agree th at th ere is a dominant male stereotype in America which works against a 

position of support for amnesty. The realization that all women are less affected by 

a possibly destructive “MALE” method of thinking neither substitutes for, nor 

contradicts, the strategy of organizing among those people who are most directly 

affected by the issue because of their economic and social position in society.

5
797

GOVERNMENT’S ANTI-AMNESTY POSITION-It is possible to reach several 

conclusions about curre nt administration feelings on am nesty. Historically, there 

is no precedent in America for such a demand. It is true that Confederate soldiers 

did receive amnesty, but it was a political solution to the problem of reuniting the 

country a fter the Civil War. It is important to note that Union soldiers were being 

prosecuted for desertion up to ten years after the war ended. In addition to the lack 

of precedent, it is more important to realize that the Nixon administration faces, 

and is highly conscious of, a growing lack of credibility. Such thinking stem s 

directly from their analysis of what support for the governm ent means; if amnesty 

is gran ted, then the government might be seen as admitting tha t the war was 

wrong and the resistance was legitimate. The government has expended Indochinese and American lives and resources in order to prove tha t the war was 

right. There are no signs of change in that position.

A second way of analyzing government sentiment on amnesty is to look at the 

moral crusade that Nixon is wagin ': a basic return to reac tionary values, 

auth orita rianism, individualism, male stereotypes, unquestioned racism, and 

support for Am erica’s imperialist spirit. There is no place in such a crusade for a 

program of am nesty, and we should understand tha t a victory in the amne sty 

campaign would be a major defeat for the Nixon administration in terms of 

fostering an even m ore widespread distrust and questioning of these basic values.

ECONOMICS-The U.S. is faced with a crisis of unemployment which is more than 

just a question of the lack of jobs in certain are as for which train ing programs 

might be a cure. There is a lack of jobs across all levels, and there is an inability in 

our economic system to create more jobs. Therefore, the prospect of tens of 

thousands of young, employable, largely semi-skilled and unskilled men being 

thrown into the labor ma rket is not a desireable one. Additionally, these particular 

young men have already challenged the government once, and a realistic appraisal of them is that they are likely to do so again. The government can be expected to advocate jail sentences or military service as a way of breaking this 

spirit of militancy so that these men might return to the economic system as 

passive participants. The fact that many of them who have taken the greatest risks 

and hence, face the greatest penalties, are third world people does not make them 

desireable in a racist economy.

Less than honorable discharges (which pre vent men from being considered for 

most jobs and places an additional financial burden on the women in their 

families) puts the blame on the individual and allows the government to ma intain 

the cruel myth that if one doesn’t oppose the system, a good job is the rew ard. This 

is another reason why the government would be opposed to upgrading these 

discharges. Once the method by which these m en are labeled and dismissed as 

being unemployable is removed, a huge segment of the underem ployed or 

unemployed work force would themselves have, and would encourage others to 

have, a very different response to government propaganda about employment 

opportunities. An “individual” problem would clearly become the collective 

problem that it is, and public confidence in the U.S. economy would be undermined. The real cause of unemployment could then be focused upon.

6
798

OUR STRATEGY

DEFINITIONS-There has been some discussion of the appropriate terminology 

that we should use. Basically, we feel tha t we are not asking for forgiveness. We 

are committed to the position that all forms of resistanc e to the war were morally, 

politically and legally correct, and we support the brothers and sisters in all those 

actions - direct or indirect. If no crime was committed, then the state has no 

authority to forgive.

The ter m “ amnesty” legally fits our requirements because it means “ abolition 

of the crim e.” In other words, there is no penalty because th ere was no crime, the 

term “pardon” is legally used to mean the abolition of the sentence, while 

recognizing that a crime did occur. I t is true th at popular usage of the term amnesty carries the connotation of forgiveness which main tains tha t a crime did 

occur. We must weigh this public definition of the term aga inst two factors: first, 

tha t amnesty is legally distinguishable from pardon, and that secondly, the term 

amnesty is the one which most American people are using. The concept of unconditional amnesty does indeed signify what we want, provided tha t all the differing kinds of re isitance are included. Our analysis mea ns tha t we will educate 

people to the fact that no crime was committed; indeed, it will form the basis of our 

campaign. Since the term will be widely used in any event,we feel that we should 

attempt to make it our term, with our definition.

CASE-BY-CASE REVIEWS-We must be par ticularly careful to avoid the term of 

pardon, not only because it indicates that a crime was committed, but also because 

it carrie s with it the notion of a case-by-case review of each individual “offender.” 

We support unconditional amnesty for any group tha t is involved, and are opposed 

to individual reviews for several reasons. First, individual reviews of draft 

avoiders would allow the government to pick and choose among those who have 

desireable skills as opposed to those who do not. It would gra nt the state the opportunity to select its citizens from those in exile, and would mean that racist and 

class values would always prevail. Secondly, those men who left the military did so 

for the same reasons th at civilian men refused to enter the military. Both kinds of 

action s are specific forms of anti-war, resistance for which we want amnesty. 

Case-by-case reviews would allow the government to obscure tha t fact by employing civilian authority to make the decisions re garding civilians, and keeping 

military decision-making virtually invisible. Thirdly, our more general political 

goals involve the stressing of collective actions and collective responsibility. Pa rt 

of the educational work to be done in an amnesty campaign involves attacking the 

notion of individula separation, dase-by-case review would reinforce that tendency.

DISCHARGE UPGRADING-We feel tha t all military personnel should receive 

one type of discharge. Previously issued discharges under less than honorable

7
799

conditions should be upgraded to the one gen eral type of disch arge. Our concept of 

universal, unconditional amnesty means th at there will be no case-by-case review 

of these discharges. All of them reflect th e racism and oppression of the m ilita ry 

machine, and actions taken by GIs a re a stateme nt of protest and outrage. They 

are directly or indirectly a result of the Indochina war and the institutions that 

created it.

Some of these acts resulted in the criminal prosecution of GIs. Most should have 

been prosecuted in the civilian courts, and we hope that one of the results of the 

campaign for amnesty will be that the military ceases to prosecute its personnel 

for acts that are considered to be crim es by civilian laws. Obviously, GIs who were 

prosecuted by the military and who have been issued less than honorable 

disch arges as well, bear the burden of paying twice for the sam e crime. We advocate one type of discharge for the future, the upgrading of all previous 

discharges, and civilian jurisdiction over judicial m atters. For those who cha rges 

are still pending, we feel that amnesty should include having them dropped for 

both m ilita ry and civilian resisters.

UNITY IN DEMAND FOR AMNESTY

Our analysis of amnesty, therefore, brings us to the inescapable conclusion that 

all form s of resistance must be united. This is the best m ann er by which to make 

our political values clear, and it is also the most realistic way of uniting th at large 

body of American citizens who are personally involved in one or an other aspect of 

the issue. The government would undoubtedly prefer to individually bring back the 

desireable draft avoiders from abroad, to quietly t ry draft resisters at home, and 

to select penalties for them which reflect their own rac ist and class bias. The 

government would prefer to keep the workings of military “justice” as far from 

public view as possible; the military would like to be able to deal with its own 

dissenters according to its own stan dar ds of discipline as a way of maintaining 

absolute obedience. The broadest possible amnesty campaign is the best way to 

offset the go vernm ent’s preferences in these matters. A campaign which brings 

draft avoiders into the foreground at the expense of military resis ters is politically 

self-defeating; it reinforces the anti-working class bias of American society, and it 

reinforces the racist nature of oppression. Including the question of upgrading 

discharges means tha t the milita ry would be additionally faced with confronting 

its own racist machinery.

Our political analysis leads us to the position that the racist and class bias of 

American society not only struc ture s the form of the ruling class, but also attempts 

to s tructure the forms of dissent. Those who resisted legally were, for the most 

part, those who were able to do so; those who resisted illegally were forced to do 

so. The most vulnerable people have once again taken the grea test risks and are 

being asked to pay the greatest penalties.

A cam paign conducted from this perspective increases its educational . ..me; it 

prevents it from being only moralistic, and it unites the broad spec trum of the anti8
800

war movement. Historically, the draft re sistance orientation of the early anti-war 

people was based on a moral objection to participation in the Vietnam war or in 

war in general. This created an unfortunate separation between these resisters 

and those who were forced, directly or indirectly, into the military. With fewer 

options available, the people who went into the military resisted the war and-or 

racism and oppression by all means open to them. Fa r from being the “enemy,” as 

early civilian anti-war people viewed them, resiste rs in the military were in fact 

imme diate or potential allies. This division, which was antagonistic at times, 

played directly into the hands of the government. More clearly than the civilian 

anti-war movement, the government recognized the class nature of the difference 

between those who fought and those who did not. They sought to exploit that difference by calling attention to the backgrounds of most draf t “ dodgers.” They also 

trie d to get support for the war by appealing to working class resentment against 

those who were able to resist the d raft. Of course the government would now seek 

to maintain that gulf by appearing to reluctantly and quietly grant amnesty to a 

few draft re sisters while ignoring, if not directly attacking, milita ry resisters. Our 

amne sty campaign should prevent this from happening because our unity is based 

on complete support for all forms of resistance.

AMNESTY AS PART OF THE ANTI-WAR MOVEMENT-A white deserter from 

the Military Police now in Canada said: “I want amne sty because amne sty is the 

best way for America to confront what the Vietnam War was - if we don’t confront 

it, it will happen again.” He deserted in 1970, after the protests at Jackson and 

Kent State concerning the invasion of Cambodia. The issue of amnesty, therefore, 

speaks to the heart of the anti-war movement. It is recognition of the price that the 

American people have paid in order to oppose the war. Amnesty does not ignore 

the fact that thousands of American young men were killed or wounded in Indochina. It puts tha t fact into perspective regarding the price that the Indochinese 

people have paid. It also forces the realization that Americans should never have 

been sent to fight the Indochinese people in the first place.

Secondly, the issue of amnesty is of direct personal importance to hundreds of 

thousands of Americans whose sons, friends, and neighbors are exiles, fugitives, 

imprisoned, or umemployed because of the consequences of opposition to the war. 

It is perhaps the only anti-war issue that the government is powerless to quiet 

down with its propaganda regarding the war as being over. This is because the 

amnesty issue is ju st beginning to increase in momentum, and it is an issue which 

is crucial to millions of people.

Fourthly, it m akes the connection between the GI movem ent and the civilian 

movement clea r by recognizing the magnitude of the GI struggle. The attention 

and consciousness of the civilian movement to that struggle will help to point out 

possibilities for future united political work, and will be a clear step forward in the 

breakdown of class and race bias.

AMNESTY AS PART OF THE ANTI-IMPERIALIST MOVEMENT-Recognition 

of U.S. reasons for involvement in Vietnam meant, for many Americans, the 

beginnings of an understanding of U.S. imperialism. The job of public education

9
801

has only begun in tha t area, and we feel that the cam paign around am nesty should 

be regarded as essential to an understanding of the ways in which imperialism 

functions. We are inescapably led to the conclusion that imperialism abroad 

hinges on public acquiescence, if not support, a t home. Specifically in te rms of an 

imperial a rmy , it is crucial that the questions we have discussed about who fights 

in such arm ies be ra ised among the general population. An amnesty campaign 

supports the basic premise that no arm y has the right to force people to fight 

imperialist wars, through either indirect economic pre ssure or by direct mea ns of 

a draft or criminal prosecution of military resisters. Resistance to the Vietnam 

war, both inside and outside the milita ry, provides us with an important guide for 

future opposition to imperialist wars. If the essentially middle-class draft avoiders 

are focused on, it will mean that those politically conscious mem bers of the 

working c lass will not be recognized. The working class as a whole will then be 

perceived as an opponent, instead of as the class most directly affected and the 

strongest political ally. In addition to narrowing rathe r than broadening our base 

of support, it will also reinforce the racist and class bias of American society by 

distinguishing “ political” and “ moral” acts from “ crim inal” acts. The breakdown 

of the U.S. military was directly caused by the political consciousnesses of 

basically working-class young men and women. This is a crucial fact of our 

analysis in terms of opposition to future wars of U.S. aggression.

AMNESTY AND THE VOLUNTEER ARMY-The end to the draft was seen by the 

middle class as a victory for the anti-war movement. However, were must closely 

examine the implications of a professional (volunteer) army.

A fundamental reason for the transfo rmation into a volunteer arm y was a rapid 

technological development of weaponry and the resulting need for highly trained 

soldiers whose careers would be long-term. Related to this fact is the different 

stra tegic role which will be assigned to the arm y in the future. For example, 

ground forces for wars fought abroad will be provided by the governments who 

seek U.S. intervention. This is the meaning of the Nixon Doctrine or the “Vietnamization” of all third world countries. Another way of looking at the same 

strategy would state that, in the future, the people of the third world will be forced 

by their ruling classes to fight for U.S. interests. This does not mean that the U.S. 

will play a less imperialist or less vicious role in future wars. On the contrary, this 

means that the U.S. Air Force, Navy, and Special Forc es, as well as the entire 

technological appartus will intervene more quickly and forcefully in “suppo rt” of 

“indigenous” armies. “Vietnamization” was in some respects more brutal a 

policy than direc t U.S. intervention because it was even more manipulative of the 

people of Vietnam. Vietnamization also allowed government propaganda at home 

to increasingly ignore the fact tha t the U. S. was intervening. A professional 

military has the virtue, therefore, maintaining domestic ignorances of U.S. imperialist policies on the one hand, and perm itting a more ra pid and more skillful 

kind of military intervention on the other.

DOMESTIC COUNTER-INSURGENCY-At home, a professional arm y is supposed to play a vital role as a “law and ord er” force. It will be used in the s treets of

10
80 2

the U.S. as a counter-insurgency force in dealing with ghetto rebellions, strikes, 

demonstrations, etc. Essentially, the ruling class has transformed the ground 

forces of the U.S. military into a civil war army. Poor people, recruited by severe 

direct and indirect economic pressures, will be expected to give a life-time of 

service.

These expectations will have several effects on the lives of future soldiers. The 

U.S. milita ry is acutely conscious of the need for a tightening up of discipline and 

morale within an army which will be called on to fight its own people. Acts of 

desertion and refusal to obey orders are much more crucial in such a situation. 

Life in the army will have to be ever more isolated and sealed off from civilian life. 

Such life will also have to be isolated from movements for social change on the part 

of civilians. The army will have to be a “ state within a sta te” in order to perform 

well as a counter-insurgency force. This will make the influence of a civilian 

movement within the armed forces more difficult than it has been during the last 

few years. Organizing of soldiers by civilians will be extrem ely difficult. It is for 

these same reasons tha t the arm y is also making military life much more attrac tive and personally comfortable.

A broad-based amnesty campaign which stresses the correctness of individual 

responsibility for resisting criminal orders would help to brea k down the new 

ideals of the military machine. It should be seen as a way of opening the minds of 

new recruits for the volunteer a rmy to the possibility and necessity for refusing 

orders that they find objectionable on political and moral grounds.

AMNESTY AND DOMESTIC ORGANIZING-In term s of the organizing efforts of 

many different kinds of groups, a campaign for amnesty given unconditionally for 

all forms of anti-war resistance should be rega rded as highly useful. We regar d 

such a campaign as lasting between 4 and 6 years, and think tha t during that 

period of time, many issues will be rais ed which community groups would be able 

to include and use in their work. Most importantly, it points out the ways in which 

working class people, particularly third world, have paid a high price to oppose the 

war, and the penalties tha t they face as a consequence. The amnesty campaign 

represents the real interests of both working and middle class families whose sons 

rebelled, and such families are beginning to be organized into active participation 

in such a campaign. It will be perhaps the first time th at the working class, both 

white and third world, can have a direct and visible m eans of participation in the 

anti-war movement. Therefore, amnesty is a good way in which to unite large 

numbers of people around an issue tha t is important to the larg est segment of the 

population.

11
80 3

CONCLUDING THOUGHTS

An amnesty campaign which pre sents the class analysis that we have spoken of 

should fit in very well with the attem pts of people to point out ways in which class 

structuring operates in America. It should help those who engage in educational 

and agitational work in efforts to combat U.S. imperialism . It will be possible to 

use amnesty campaign material in work tha t may have to be done around the 

courtmartials of anti-war P.O.W.s, as well as in the work which will be done 

around the P.O.W. issue in general. Educational work concerning the people of 

Indochina may take into account the fact that millions of American people over the 

last ten ye ars cam e to rega rd the Indochinese as our friends, rathe r than as our 

enemies. That beginning sense of friendship is certa inly part of the reason for 

refusal to partic ipate in th e Vietnam war, and as such, is another part of a campaign for amnesty.

The issue of amnesty, then, belongs to those who resisted, opposed, and 

organized against the war. Amnesty applies to those who refused to fight from the 

beginning; refused to support a military machine; or those who, as veteran s of the 

Vietnam war, brought the meaning of it home to America in ways that others were 

never able to do. Perha ps the feelings of the exiles and the ve terans are the most 

important for the American people to understand. They are both the victims of 

U.S. intervention in Indochina, and it is significant that there is agreeme nt among 

those who refused to fight and those who did fight. It is the U.S. government who 

ought to be asking for pardon, not amnesty, from those whom it caused to be killed 

or wounded, to kill or wound others, to resist those a lternatives by destroying their 

own lives, or to live in a society which imposes life-long penalties on them. The 

history of the anti-war movement is the history of decisions and actions that are 

among the most fundamentally decent and righteous actions that women and men 

have ever taken.

For those of us who came to understand the true nature of the war, we ar e indebted to the work and courage of these military and civilian resisters. Through 

resistance, we have come to realize that the war was white America ’s war, the war 

of the ruling class and the defense industry, the war of the rich, the racist, and the 

imperialist. There could be no more progressive a step in our work than to demand 

universal and unconditional amnesty. Our work goes on. We demand that there is 

never again a U.S. government which violates the basic spirit of its own people or 

of the people of the world.

UNITY-STRUGGLE-VICTORY

1 2

805

Vietnam veterans 

against 

the war

winter soldier 

organization
806

Veterans of World War I„ USA, Inc.,

Department of Oklahoma, 

Shawnee, Okla., February 21, 1974.

Resolution

Whereas a number of individuals, groups, and organizations have asserted 

themselves as in favor of amnesty for those of our young men now in exile in 

foreign countries; and

Whereas the Veterans of World War 1 has always opposed those who did not 

see fit to serve their country when called upon to do so; and

Whereas 142,381 U.S. Citizens were granted Landed Immigrant Status in 

Canada in Fiscal Years 1965 through 1971 (Canada Department of Manpower 

and Immigration); and

Whereas five to twenty thousand young U.S. Males were in Canada Illegally 

or as “Visitors”. (Estimated by the Canadian Council of Churches and aid groups 

in Canada); and

Whereas these Deserters now want to come back to the U nited States and live 

in peace, the peace made possible by our Vietnam Veterans; Now be it

Resolved, Tha t our Department of Justice refuse them entry and declare them 

guilty of Treason; and be it further

Resolved, A copy of this Resolution be given to the Press, a copy to Department 

Headquarters and a copy sent to National Headquarters of the Veterans of 

World War 1.

Adopted this 21st day of February 1974 by the Board of Administration of the 

Department of Oklahoma of the Verterans of World War 1.

Attest:

Harlow W. Foueks,

Department Adjutant.

J ames J. -------- .

Department Commander.

Conference of Major Superiors of Men, U.S.A.

A Religious Call for Amnesty

Aware of the need to speak to value issues in American society, and mindful of 

our role as religious leaders within the Catholic community, we members of the 

National Executive Board of the Conference of Major Superiors of Men address 

ourselves to the critical question of amnesty.

We consider amnesty to be a positive act of compassion directed to our fellow 

citizens who are in prison or in exile because of their response to laws relating to 

military service. I t is a proclamation t hat these persons are free to return to their 

families and homes, exempt from all legal prosecution for whatever actions they 

may have felt obliged to take regarding participation in the Vietnam war. It restores them to their full legal s tatus of living and working in the United States 

as free and useful members of society.

Amnesty does not mean “ forgiving”; it is not a judgment of condemnation, 

nor an act of condonation. It is simply an act of “ forgetting,” a wiping clean of 

the slate, an overlooking of any past legal transgression.

A. W H Y AM N ES TY NOW ?

We feel tha t the most urgent need facing the United States at this moment is 

the need for reconciliation. After a decade of bitter dispute over the Vietnam war, 

we Americans need to be brought together, to bind up our wounds, to unite in a 

common purpose to promote peace and justice.

Thousands of young men are currently in prison or in exile from the U.S. 

because of the positions which they took on the Vietnam war. Their status is both 

a symbol and a cause of division in our country. Amnesty would be a healing and 

reconciling measure designed to overlook the past and move a united nation into 

the future. It would restore confidence in the ability of our government and its 

people to foster a sense of renewed purpose, especially as we approach the 1976 

Bicentennial Celebration.
807

B. W H A T K IN D OK A M N ESTY ?

We feel th at the criterion to be used in deciding w hat kind of amnesty is chosen 

is clear: what be st promotes the goal of reconciliation? We believe tha t a universal and unconditional amnesty will do the most a t this time to prom ote reconciliation.

1. It should apply to all individuals who have broken laws regarding conscription 

into military service or who have withdrawn from participation in milita ry service. 

This will affect those who have avoided the dra ft through going underground or 

leaving the country, those who have been imprisoned because of non-cooperation 

or forms of conscientious objection not recognized by our courts, and those who 

have left military service or have been imprisoned because of refusal to tak e pa rt 

in combat. (We are not speaking here of criminal offenses unre lated to the dra ft 

and the war.)

2. If it is to be a true forgetting, the amnesty must not impose any penalizing 

conditions, such as alte rnative service or recording the facts of the case in public 

records. Any penalizing conditions would not heal division nor restore harm ony 

to the nation.

C. CALL FO R AM N ES TY

As American Catholic religious leaders committed to justice and peace, we 

call upon the President and the Congress to ta ke the necessary steps to gra nt such 

an immediate universal and unconditional amnesty.

We are aware of the political difficulties involved in such an action and of t he 

heated debate to which the issue of amne sty gives rise. There are certa inly honest 

differences of opinion abo ut the desirability, feasibility, and consequences of such 

action. However, it is our considered opinion th at the amnesty we call for is the 

surest p ath to the promotion of reconciliation in our nation.

D. P L E G E FO R A CTIO N

In order to commit ourselves to the task of reconciliation, we are taking the 

following actions:

1. We are sending a copy of our Call to all of the members of the Conference of Major Superiors of Men, inviting them to share this statem ent w ith 

their own communities, to thereby stir up discussion and reaction, and to 

send their response to us.

2. We are communicating our position directly to President Nixon and to 

all the members of the Congress.

3. We are inviting members of th e Conference of Major Superiors of Men 

to join their signatures to ours in support of this statem ent on amn esty at 

the Annual Assembly in June, 1973.

4. We are asking the American Catholic Theological Society to commission a task force on the theological dimensions of amn esty in order to 

deepen the understanding and further acceptance of this act of reconciliation by Americans.

M EM BERS O F TH E CM SM N A TIO N A L E X E C U T IV E BO AR D

Rev. Paul M. Boyle, C.P., President, Conference of Major Superiors of Men, 

Chicago, Ill.

Rev. Alan McCoy, O.F.M ., Oakland, Calif.

Rev. Joseph Francis, S.V.D., Los Angeles, Calif.

Brother Leonard Voegtle, F.M.S., Roslyn, N.Y.

Rev. Flavian Dougherty, C.P., Union City, N .J.

Rev. Thomas Stransky, C.S.P., Scarsdale, N.Y.

Rt. Rev. Jerome J. Tremel, O.Praem, St. Norbert Abbey, De Pere, Wis.

Rev. Charles Hughes, Cincinnati, Ohio.

Rev. William G. Guindon, S.J., Boston, Mass.

Rev. Michael F. Daniel, S.A., Chappaqua, N.Y.

Rev. Donald Ehr, S.V.D., Washington, D.C.

Brother Francis Beck, F.S.C., L afayette, La.

Rev. Justin Ryska, O.S.M., Berwyn, Ill.

Rev. Stephen M. Ryan, O.S.M., Buena Park, Calif.
808

Statement on Amnesty, Submitted by the Fellowship of Reconciliation, 

Nyack, N.Y.'

Whereas there are many thou sands of Americans in this country or overseas 

who have resisted or otherwise refused pa rticipation in the dra ft or milita ry service 

in the war in Indo china or in earlier wars, or who have engaged in other acts of 

resistance, and have therefore been convicted of or are subject to prosecution for 

offenses against the government; an d

Whereas their offense is political, not involving violence against persons, and is 

unlikely to be repe ated because it relates to a war th at is past ; and

Whereas many of these persons are on principle opposed to violence and will 

encourage respe ct both for persons and for nonviolent processes of change; and

Whereas it is desirable to heal the divisions of war and end the alien ation of 

citizens from the ir government: Therefore, be it

Resolved, Th at those who face or have suffered criminal or administrative pe nalties for acts of evasion of or resistance to the draft or military service or war, 

involving violations of laws and regulations, including the Selective Service Law 

and the U niform Code of M ilita ry Justice, prior to the ac tual ending of the war in 

Vietnam should be grante d a full, broad and unconditional amnesty.

Adopted by Executive Committe e of Fellowship of Reconciliation F ebruary 12, 

1973.

Reconciliation and Amnesty—An Address by Rev. R obert V. Moss, 

President, United Church of Christ, February 5, 1973, Chicago, II I.

Two recent events point up the crisis of confidence between young people and 

America’s institutions today. On the first of January of this year, thousands of 

eighteen-year-olds in New Jersey stood in line to get into bars, legally open to 

them for the first time.

Two mon ths before that, when first they had the right to vote, those same 

eighteen-year-olds significantly failed to stand in line in any great numbers. Per ­

haps their acceptance of the ins titu tion of drinking, coupled with their rejection 

of the in stitution of voting, tells us som ething of th e mood of young people toda y.

The generation now reach ing its majority seems to have lost faith in its institutions. This is no t a bomb throwing, or even a marc hing generation. Its mood is 

not a pathe tic—it might be more accu rately term ed quiescent—ominously so.

The fac t th at these young sters can look forward to college, a job and a future 

free of th e threa t of th e d raf t should n ot lead us to conclude th at they are unaw are. 

I believe they are acutely aware of th e grievous wrongs committed in the name of 

America in the past decade. They are aware of the near destruction of the tiny 

cou ntry of Vietnam and its people. They are aware of the tremendous burden 

shouldered by the ir older brothers and uncles who foug ht in V ietnam . They are 

aware of the violation of their own moral values committed in the name of “ peace 

with honor. ’’And I believe they long for reconciliation in America today.

Now th at the hostilities have ceased in Vietnam and the way is open for peace 

in Southeast Asia, I wan t to speak of th e need for reconciliation at home, and to 

suggest ways of achieving it. To heal America’s wounds in the wake of the Vietnam war we dare not try to hide our differences; r ath er we must recognize those 

differences and face them squarely. It is in this context th at we speak of reconciliation.

I want particularly to speak abo ut amnesty for those who have resisted this 

war. Bu t resisters are only one of a number of groups who have been damaged 

by the war.

There are first the men who have died in this war, and their families. The 

wives, th e p aren ts and the children of those who gave their lives wan t despera tely 

to believe that their sons and husbands have not died in vain. What can we say 

to these people, to ease their deep grief? C ertainly there is no glib answer. They 

did die in the service of their country. For many this m ay be enough. But for those 

who believe t ha t the war was u nju st this may not be an adeq uate understanding. 

I know th at among those whose sons will never come home there are parents 

who say their sons did not die in vain . . . because they died in a war that was 

so despised th at there may never be another. I can only pray th at t ha t is so. Bu t 

I suggest th at it is the responsibility of the religious comm unity to wrestle with 

the question of the meaning of the sacrifice which these men have made. It may 

very well be th at we shall not find th at meaning until we consider their sacrifice 

in the context of th at which Vietnamese young men made in devotion to their 

own native land. We are dealing not jus t with a natio nal tragedy bu t a human 

tragedy with world dimensions.
809

Othe r victims of the war include the men who have been taken prisoner and 

their families. Than k God they are now on the way home. It is clear th at the 

military and the government recognize our special responsibility to them.

Then there are the more tha n six million veterans of the Vietnam era. One in 

four of these veterans hasn’t even a high school diploma. Yet, only abo ut fifteen 

percent of the non-graduates make use of the G.I. Bill to further their education. 

The rest have little to offer the job market.

Why aren’t Vietnam era veterans using the G.I. Bill, as did the veterans of 

World War II and Korea? Possibly because the present bill offers too little help. 

Another reason, according to R ichard Killmer of the National Council of Churches, 

is tha t colleges and universities have been slow in responding to the special needs 

of veterans. Until recently, few institu tions had developed preparatory programs 

or changed admissions requirements, set up counselling programs or hired tutors 

for the veterans.

Reflecting their mis trust of government and other established institutions, 

veterans have made far less use of the Veterans Administration tha n did those of 

past wars. The Veterans Administration is looked upon as more of the same old 

“arm y game,” and they have had their fill of games.

Until 1972 the unemployment rate for Vietnam veterans was subs tantially 

higher than for non-veterans of the same age. But as a result of efforts made by 

the Federal government, the states and business and industry, the jobless rate 

among veterans has fallen subs tantially and is now below th at of non-veterans 

of the same age. But for blacks and other mino rity veterans the problem persists, 

with unemployment greater tha n th at of non-veterans of the same age gruos.

Estimates of the number of Vietnam era veterans addicted to heroin range from 

60,000 to as high as 100,000. Most of these men were n ot using drugs before the y 

went to Vietnam. Some tu rne d to heroin to fight boredom. Others used it to blot 

out the agony of war. Now it is the major factor in their daily lives.

Most Federal agencies have not dealt with the problem s of v eterans on drugs. 

Senator Cranston and other Congressmen have accused the Veterans Administrat ion and other agencies of dealing inad equa tely with the addicted veterans. 

There are waiting lists for methadon e treatm ent at Veteran Administration hospitals in New York City, with only some 50 beds available.

But drug abuse is only the symptom of the vetera n’s problem. Psychia trists 

working with veterans have identified what is now called the “post Vietnam 

syndrome”—which includes guilt feelings; frustra tion at having been made a 

scapegoat for the cou ntry’s failures; rage at having been duped and man ipulate d; 

a feeling of having been brutalized by combat; alienation from oneself and from 

society; an inability to thin k well of oneself, and thu s to love othe rs and accept 

love in return.

The veteran cann ot understand why he is rejected by the society he though t he 

was fighting for. Even worse, rathe r tha n expressing ou trig ht hostility toward the 

veteran, our society is even more prone simply to ignore him.

One problem of course, is th at a high proportion of veterans are black, Puerto 

Rican, Chicano, or from ano ther minority. Some of these men actually though t 

they could win freedom and respect by going to Vietnam. Imagine their rage and 

frustration upon their return home to nothing bu t apathy, rejection and 

unemployment.

If we are really to meet their needs we are going to have to return to our domestic priorities. We have lost the vision of the great society and we need badly 

to recover i t and to move toward it. Essentially the responsibility is going to lie 

with the President and the Congress, bu t particularly with the President and 

much will depend upon the kind of leadership th at he offers during the n ext four 

years. I hope he will give us a reconciling kind of leadership as we face the future 

perils and problems.

But in addition to the men who have died in combat, those taken prisoner, and 

the millions of discharged veterans, othe rs have been victimized by this w’ar. 

They include the dra ft resisters who have fled into exile, those who have gone 

underground, and those who have deserted the armed forces. The Seventh 

General Synod of the United Church of Christ, meeting in Boston in th e summer of 

1969, recognized the plight of these men when it urged th e President to grant “a t 

the earliest possible opportu nity, amnesty and pardon for those who, for actions 

witnessing to their beliefs, have been incarcerated, deprived of the rights of 

citizenship, or led by their conscience into exile. . . .We urge these bold actions 

because this nation needs, and is s tron g enough to embrace, both those who have 

engaged in the Vietnam conflict and those who have opposed it.

31 -658 0 — 74 >3
810

As a result of this action, I was asked in the fall of 1969 to serve on th e team of 

church leaders who, representing the N ation al Council of Churches, met in Windsor, Ontario, with represen tative of the Canadian Council of Churches, and with 

represen tatives of the dra ft exile community there, to d eterm ine what ministry the 

churches could perform. We rep orted to the Assembly of the National Council in 

December, 1969, recommending th at th e Canadian Council of Churches engage in 

a ministry to the deserters and dra ft exiles in Canada, and th at the Nation al 

Council in this country concentrate on a m inistry to the families of those men.

I was able to do this without question, largely because of the action taken by 

our General Synod. It fell to me as executive officer to move forward, carrying 

out th at resolution in ways th at seemed appropriate.

And, of course, the United Church of Christ was not alone. Strong pleas for 

amnesty have been made by the General Assembly of the United Presbyterian 

Church in the USA; by the United States Catholic Conference; the Natio nal 

Council of Catholic Bishops; the American Baptist Convention; the United 

Methodist General Conference; the Lutheran Council in the USA and others. 

The National Council of Churches, through its General Board, recommended 

in December, 1972, am nesty for:

dra ft resisters and dese rters who have exiled themselves to other countries; 

those currently in prison or military stockades, those on probation, those 

who have served their sentences, and those who are subject to prosecution 

for violations of the dra ft or military law;

dra ft resisters and deserters who have gone underground to avoid 

prosecution;

Vietnam era vete rans w ith less tha n honorable discharges; and those who 

have comm itted civilian acts of resistance to the war or are being prosecuted 

upon allegations of the same.

One of the most moving pleas for amnesty came from Cardinal Cushing of 

Boston, in his Eas ter message of 1970; “Would it be too much,” he asked, “to 

suggest that we empty our jails of all the protesters—th e guilty and the innocent—witho ut judging them, call back over the border and around the world 

the young men who are called deserters, drop the cases th at are still awaiting 

judgment on our college youth? . . . Could we not do all this in the name of 

life, a nd with life, hope . . .?”

In my denomination questions were raised, of course, by people who felt these 

men were trai tors. But in trying to answer the questions, we were able to establish a dialogue within the church. Out of tha t dialogue came the realization that 

many families in our churches, particularly in Ohio and Pennsylvania, would 

not be in the United States if their gran dparents had not fled Germany in the 

ninetee nth century, at a time when conscription was imposed on themen. Many 

of the exiles themselves recognized t ha t they were carryin g on a family tradition.

After the events of the Spring of 1970, I proposed tha t some of the same people 

who had been in Windsor, Ontario, go to Vietnam. Dr. Robert J. Marshall, 

president of th e Lutheran Church in America, Dr. William P. Thompson, sta ted 

clerk of the United Presbyterian Church in the USA and I were finally able to 

get clearance through the Chiefs of Chaplains, and we spent a week in Vietnam, 

talk ing to over 200 chaplains.

The p oint we tried to make in those two visits—one to Canada, one to Vietnam— 

was th at the church mu st be concerned for all hum an beings, regardless of the 

positions they may have taken. Although we may not be able to sympathize 

with, or even understand their positions or actions, we recognize th at they are 

children of God and created in his image. The church provides a chaplain for 

men in prision, even—or especially—for convicted criminals. On that basis we 

were able to convince some of our people of the need for a ministry to resisters, 

deserters and exiles. But the time has come to move beyond m inistry to amnesty.

Amnesty, of course, does not mean forgiveness. Its root word is related to 

amnesia, and it means “to forget.” Amnesty concerns the law’s ability to undo 

what it has done in the past. To forgive a violation is to pardon. But amnesty is 

to forget, to erase, to blot out in recognition of a grea ter interest—in this case the 

reconciliation of the nation.

Forgiveness implies guilt, and this is highly offensive to all potential recipients 

of am nesty. They adm it to illegal acts, bu t not to immoral acts. Amnesty has to 

do with the legality of the act. One of the points th at impressed me in our discussions in Windsor was a statem ent of one of the exiles, who said, “We’re not 

particularly intereste d in amnesty—we’re really inte rested in adequate dra ft
811

counselling. We worry abo ut our younger broth ers and oth ers who will go th rough 

this. Many of us would not have been here if we had known all the alternative s 

open to us.”

Many of the Canadian exiles have become landed immigrants, some have become Canadian citizens. But even they wan t the right to trav el back and forth 

to their homeland.

I am reminded th at in ancient Israel the year of jubilee was celebrated every 

50 years. On t ha t occasion all Hebrew slaves were given their freedom. The poor 

were restored to their ancestral homes which they may have been forced to sell. 

The land was perm itted to lie fallow. It marked a blotting out of th e past and a 

new beginning for the whole natio n. I believe th at we should view amnesty in 

th at same sp irit: as a fresh s ta rt and a step into the future.

The histo ry of amnesty is illuminating. During and after the Rev olutionary 

War, some 80,000 Loyalists fled the country, mainly to Can ada. Some eventually 

returned, bu t public opinion and oppressive laws kept the vast majority in exile. 

Yet deserters were not punished, and shortly after the new' republic was founded 

President Washington proclaimed amnesty for par ticipan ts in the Whiskey 

Rebellion. Thu s was the trad itio n of amnesty established. In the Civil War, 

desertion ran to more tha n ten percent, while dra ft evasion was ram pan t. No 

action was taken against eithe r deserters or dra ft evad ers in the No rth after the 

war. And President Lincoln proclaimed a series of amnesties for Confederate 

soldiers throughout the war. Afterward, no rebel leaders were executed, no one 

was brou ght to trial for treaso n, there were no mass arrests, and no one was 

deprived of pro perty or forced into exile by government policy.

Presidents Harding and Coolidge granted amnesties after World War I, and 

President Truman appointed a commission which reviewed individual cases and 

granted pardons for some of the deserters of World War II.

In this war, a total of from 350,000 to 400,000 need some sort of amnesty. 

Such a large group could not be de alt with on a case-by-case basis. What is needed 

is a class action th at would include everyone mentioned in the National Council 

of Churches policy statem ent th at I quoted before. That statem ent recognizes 

th at “genuine reconciliation demands th at amnesty be granted to all who are in 

legal jeopardy because of th e war in Indo chin a.”

Many of these men are suffering in one way or another for having adopted too 

soon, positions which a great number of Americans have since adopted. The na ­

tion’s self inte rest requires th at they be granted amnesty in the name of reconciliation.

For the issue of amnesty will be w ith us—dividing us—until it is resolved. Amnesty has been an issue after every other war, and will be more of an issue after 

this war, simply because this war has been the most divisive the nation has fou ght. 

The churches and the synagogues have a role to play in this reconciliation. Unless 

the religious comm unity takes the lead, it will be delayed and may fester in the 

nation’s soul indefinitely. For understandable resaons both Congress and the 

President are relu ctant to take leadership on this issue. And so I belive the religious groups of this natio n are called to create the climate for amnesty. We owe 

our country and ourselves no less.

T es tim o ny by t h e W ar R e s is t e r s L ea g u e on Am nest y, N ew Y o r k, N .Y .

I am Irm a Zigas, Chairwoman of th e War Resisters League. For fifty years the 

League has been striving, nonviolently, to remove the causes of war.

The membership of the War Resisters League contains a higher proportion of 

felons than almost any other organizations in America. U nder these c ircumstances 

it is almost unnecessary for us to issue a statem ent in support of unconditional 

amnesty for war resisters, and yet it is particularly appropriate.

There are four general categories th at would be affected by various amnesty 

proposals now under consideration. The first consists of men who refused military 

service and were imprisoned or are now under indictment, or those men and 

women who, finding themselves already in the service and increasingly opposed to 

the war, deserted, were placed in milita ry prison or were given less than honorable 

discharges for resistance. The second group involves all those who actively resisted 

the war through counseling resistance, by raids on dr aft board files, by destruction 

of war related government materials, or by the release of secret government
812

documents. The third group consists of those who left this cou ntry for Can ada or 

elsewhere rather than serve in a war they deeply opposed. And the fourth, the less 

than honorab ly discharged V ietnam era veteran s.

Some of those who might be affected by an amnesty are guilty of techn ical vio ­

lati ons of the law, bu t the far more basic violations of law have occurred through 

the actions of government, milita ry and corporate officials.

Un ilaterally and withou t cause, in viola tion of our own Con stitutio n and of 

international accords and agreements, the gove rnm ent of the U.S. made war 

upon the whole people of Vietnam , of Laos and of Cambodia. Under the decisions 

of the Nuremb urg Tribunal these constitute crimes of war and those who con ­

spired to comm it these crimes could be tried by an inter national court of law. 

Nor can one limit responsibility to the Exe cutive and Legisla tive branches of 

government. The highest officials of the military hav e known the nature of the 

war and have sought to tran sfer respon sibility from the higher ranks to the lower, 

so tha t, for example, Lt. Ca lley alone was found gu ilty of the My Lai massacre.

In addition, certain major corporations hav e designed and manufact ured for 

their own profit weapons the principle use o f which is a gain st civilian population s. 

It is not possible for corporate exec utives to plead ignorance of the uses to which 

these devices hav e been put. Weighing the “ crimes” committed by war resisters 

aga inst the crimes committed by war-makers it would seem to us t ha t the amn esty 

question has been stood on its head. Thos e now imprisoned in this cou ntry or 

living in exile do not need forgiveness. Th ey stand honored before histo ry. For 

those who have been in service and hav e been less than hon orab ly discharged, 

amnesty must not be forgiveness but the full and immediat e restoration of the ir 

civil rights. Where the y are in jai l the y should be released at once. Where the y 

are beyond our natio nal borders, the y should be welcomed bac k into the rank s 

of American soci ety witho ut penalty .

The Leagu e, hav ing long opposed prison as ineffectiv e in changing beh avior 

and hav ing argued that it serve d litt le purpose other than to inflict soc iety’ s 

vengeance on those who could not afford a good lawyer, has grave doubts th at 

war crimes trials would solve anythin g. Th at men such as Nixon, Laird, Haig, 

Colby, McNam ara, Westm orelan d, Hum phrey, Rostow, Rusk, Bun dy, etc. are 

gu ilty of war crimes seems obvious— bu t it is very dou btfu l that, even if tried 

and found guilty, prison would rehabilitate them. For all the years of their liv es 

the men who plotted this war will be imprisoned by the know ledge tha t 55,000 

Americans died, hundreds of thousands have been wounded, ove r a million Ind ochinese hav e been killed, their wounded are countless, the ir refugees number in 

the millions, vast numbers of cities, towns, and hamlets have been destroyed and 

huge areas of the land itself subjected to merciless environm ental attack . Th e 

horror of these realities would drive sensitive people to nightmares from which 

no amnesty could grant surcease.

Fin ally , if M y Lai was a reflection of the milita ry syste m, so the war itself is a 

reflection of the American syste m as now organized. This war has been transparen tly evil, obviously an act of aggression, and so it has been fairly easy for 

ma ny Americans to stand against it. But the ravaged lands and displaced people 

of Indo china prov ide tragic testimony that not only were the Americans the 

enemy, bu t violence itself. No war can finally be ju st, for in the end war imp licates 

everyone on all sides in the commission of crimes against the innocent. We must 

continue to search for methods of achieving revolutio n withou t violence, of 

resisting evil with out killin g our neighbors.

Sta te me nt of John F. H eil ma n, Assist an t Nat iona l D ire cto r of L eg is lation, D isab le d Americ an Vet er an s

Mr. Chairman and members of the subcomm ittee, in behalf of the Disabled 

American Veterans, may I express our appr eciation for this opp ortuni ty to 

present our view s on the sub ject of Am nesty and its application to those persons 

who, during the Vie tnam-Era Conflict, illegally evad ed or fled mil itary serv ice 

in the Armed Forces of the Unit ed States.

Before stating our position, I feel it would be of service to those Members of 

the Subcommittee who ma y not be fam iliar with our organization to briefly 

ide ntify the Disab led American Veterans.

The DAV was founded in 1920 by a group of disabled World War I veterans 

for the express purpose of “ advancing the interests and betterm ent of all 

wounded, gassed, injured, and disabled veter ans, as well as their dependents,
813

widows, and orphans” . As a Congressionally chartered non-profit veterans 

organization, the DAV has remained steadfast to this original premise during its 

54 years of existence. Through the varied activities of our local chapters across 

the country, and through the service, employment, and legislative programs 

administered by our National organization, the DAV has compiled an impressive 

record of assistance to America’s disabled veterans. Our membership, which toda y 

numbers 450,000, is composed solely of honorably discharged veterans who incurred a wound, injury or disability as a result of their active military service 

during a time of national emergency or war.

This thumbnail sketch of our organization’s credentials is offered in the hope 

that the Subcommittee will better understand the basis for DAV interest in the 

subject of today’s •hearings.

Mr. Chairman, the various Amnesty bills presently pending before this Subcommittee can be broken down into three categories:

CATE GO RY I

General unconditional amnesty to all personnel who evaded or deserted a ctive 

military service during the Vietnam-Era Conflict. This would include not only 

those whose actions were related to an opposition to U.S. military/political 

policy in Southeast Asia, but also to those whose actions include nonpolitical, 

criminal conduct as well.

CA TE G O RY II

Limited amnesty via Presidential proclamation or through special amnesty 

review boards or commissions. Distinctions would be made in regard to the 

particular offenses committed, i.e., desertion, AWOL, failure to register or report 

for induction under the Military Selective Service Act, etc. The motivation for 

the offense, as well as the existence or nonexistence of violence, personal injury 

and property damage, would also come to bear. Judgments rendered could include 

the immediate granting of amnesty or amnesty after the performance of two to 

three years equivalent service performed in various Federal agencies such as the 

Armed Forces, Public Health Service and VA Hospitals, Volunteers in Service 

to America (VISTA), etc.

CA TE G O RY III

No amnesty whatsoever, with all cases being handled through existing military 

and civil judicial systems.

Addressing the third category of amnesty legislation, may I say that the DAV 

is aware that those who chose to illegally avoid or escape military service in the 

Armed Forces did so for a varie ty of reasons. We recognize that these reasons range 

from honestly held moral convictions against participating in any war and/or the 

taking of a human life, to a complete lack of any sense of moral responsibility at all. 

It quite naturally follows that true justice would mete out varying degrees of 

punishment to these offenders. The primary concern of the DAV is that justice be 

served, and we therefore make no vindictive demands for a “ pound of flesh” .

Mr. Chairman, in regard to Category I, the DAV is unalterably opposed to the 

granting of any unconditional blanket amnesty that would sweepingly and completely pardon those who fled or refused to serve in our Armed Forces. Initially, 

may we point out that despite implications to the contrary from the proponents 

of blanket amnesty, never in the history of the United States has a complete 

general amnesty, without penalty, been offered to those who violated our Nation’ s 

draft laws. To do so now would, in our opinion, set a precedent both dangerous and 

unwarranted.

The proponents of blanket amnesty argue that this would be a step in binding 

the wounds of divisiveness which rent our National fabric during the decadelong Vietnam-Era Conflict. We do not argue with the goal of National reconciliation, but we do take issue with the method that the advocates of blanket amnesty 

propose to achieve it. In this instance, to forgive completely would be synonomous 

with condoning completely, and it passes beyond our understanding to see how the 

countenance of law-violating actions can do anything but serve our country ill. 

We are a Nation of men equal under the law. Justice is a two-sided coin in that 

while i t exonerates the innocent, it also punishes the guilty. If it is reasonable to 

assume that the granting of amnesty may be deserved in some cases, then it also 

holds true that in some cases amnesty may not be deserved at all.
814

This brings us to the legislation as contained in Categ ory II, which falls most 

in line with the DAV’s position on amnesty, with one exception. In no instance 

do we favor the so-called “punishment” of equivalent service in civil Federal 

agencies. Notwith standing the requirements of lowest pay grade and nonaccrual 

of employee benefits, government em ployment can hardly be considered a punishment for a criminal offense. In our opinion, this proposal could even be considered 

insulting, in view of th e fa ct t ha t the prese nt unemployment rate for veteran s who 

incurred wounds, injuries, or diseases as a result of the ir military service is in excess 

of 14 percent. If there is governm ent employment to be had, let us offer it to our 

unemployed disabled veterans!

Mr. Chairman, I have dealt at some length on the amnesty positions we do not 

support so as to give credence to our position which can be stated briefly.

It is the opinion of th e DAV, as m andated by the delegates to our most recent 

National Convention, th at if amnesty is to be considered, it should be done on 

an individual basis upon the petitio n of each person to a special Amnesty Review 

Board, appo inted by the President. If after considering all factors, it is the 

opinion of the Board th at amnesty is warranted, then so be it. If an adverse 

decision is rendered, then the punishment should be commensurate with the 

seriousness of the offense involved.

Mr. Chairman, we feel our position on the sub ject of amnesty is objective, just, 

and equitable, and that it best serves the interests of our country and its lawabiding citizens. It is in this spirit that we have presented our views today, and 

may we again thank you for this opportu nity of doing so.

Toronto, Ontario, Canada,

February 21, 1974.

Hon. R obert Kastenmeier,

Judiciary Subcommittee on Courts, Civil Liberties, and the Administration of Justice,

House of Representatives, Washington, D.C.

Dear Representative Kasten meier: I have heard th at your subcom mittee

is to hold hearings on a n umber of am nesty bills now before Congress, and I would 

like to su bmit the following sta tem ent for inclusion in the record.

As an associate of Amex magazine and an exile of almost four years, I would 

like to call your atte ntion to an article in our forthcoming issue th at deals with 

the psychological stress experienced by exiles. I will summarize here the conclusions of the article, which is based in p art on interviews with Dr. Saul Levine 

(psychiatrist) and Dr. Angus MacDonald (psychologist), both of whom have 

worked with American exiles over an extended period of time.

Following the signing of the Jan uar y 1973 Paris Accords, and the nominal 

ending of the war, there was widespread discussion of am nesty in the mass media. 

American exiles who had made considerable progress in adapting themselves to 

Canadian life suddenly found themselves facing questions they though t had been 

settled.

The sociology of migration describes the adaptation process as one of desocialization and resocialization. Although certain factors vary according to whether or not 

the migration is a forced one, the general pattern is the same. The forced migration of American war resisters to Cana da began to decline in 1970. It seems safe 

to assume th at the majority of exiles have been in Cana da for well over three 

years. To the extent th at ada ptation is a ma tter of time, most exiles should be 

well into the resocialization process. All information available to us, in fact, 

indicates th at a large majority of American exiles who have completed the fiveyear residency requirement are now taking out Canadian citizenship.

An example of th e psychological stress experienced by exiles is provided in the 

case of a young professional who completed his train ing in Toronto, married a 

Canadian, and had no doubts about spending the rest of his life in Canada. With 

the increased discussion of amnesty, he faced mounting pressure from family, 

friends, and colleagues in the U.S. to get his case fixed by whatever means necessary. The moral worth of his original decision to enter exile was thus bro ugh t 

into question, and a near-collapse of his marriage was one of the effects of his 

uncerta inty.

Those of us with some range of acquaintance in the American exile community 

could multiply examples such as the foregoing. Long-standing friendships have 

been broken, business associations dissolved, and established pattern s of life 

forsaken. Of course, the passage of time since the outbu rst of amnesty discussion 

has seen the reestablishment of some equilibrium. But the main point is th at 

every delay in the granting of amnesty is exacting a human toll.
815

Having outlined the psychological stress created among exiles by the ambivalence of their situation, I would like to indicate why conditional amn esty is 

equivale nt to no amnesty. At the peak of migration, it was commonly estimated 

th at there were 70-100,000 American war resisters in Canada. Our curre nt 

estimate is th at at least 15,000 exiles have remained in Canada. This figure is 

based on Canadian government immigration statistics and the number of war 

resisters who applied for landed immigrant sta tus during the recent 60-day 

“grace period” (see Amex-Canada, Vol 4, No. 5, Nov-Dec 1973, p. 24). Those 

of us who remain in Cana da are those who for various reasons have been able to 

sustain our original comm itment over a long period of time.

I suspect th at the majority of exiles would refuse any amnesty th at entails 

punitive conditions such as alte rna te service. In addition to ideological reasons, 

there is a much simpler reason for supposing th at conditional amnesty would 

mean little to American exiles in Canada. Having a way of life (with a circle 

of friends, a sense of place, and a job) here in Canada, many exiles could now benefit from amnesty only as it offers th e possibility of visiting the U.S., and no one 

would perform alte rna te service merely for th at right.

To add a personal note. In 1970 I was accepted for Peace Corps service, and 

was prepared to serve until the age of 26. In a presidential decree of April 1970, 

Richard Nixon said th at deferment would no longer be granted, only “postp onement of indu ction.” I was willing to do four years of a lternate service then. Bu t 

th at was four years ago. Most exiles, in their mid and late twenties, and even 

early thirties, are not likely at this stage to spend several years of their lives in 

some menial and punitive employment.

I could focused on the situation of American exiles in Canada, because th at is 

what I am best acqu ainte d with. A far more serious problem, however, is posed 

by the more tha n half a million Vietnam-era veterans with less-than-honorable 

discharges. I hesitate to estim ate the social and human cost of their being una ble 

to receive veteran s’ benefits or to hold good jobs.

Yours for universal and unconditional amnesty,

J oseph C. J ones.

W. Medway, Mass.,

February 26, 1974.

Mr. William Dixon,

Counsel, Judiciary Committee,

Rayburn House Office Building,

Washington, D.C.

Dear Mr. Dixo n: We, as parents of Lawrence Graham Leigh, Jr. wish to 

express our feelings about amnesty for the boys who chose n ot to “serve” in th e 

war, to kill, or be killed. If there was a choice to be made we feel th at it should 

have been to help the under-developed Asian countries some other way, tha n the 

pretense of “fighting Communism.”

We know now, the horror tha t our country has wrought in those Asian co untries, 

and we would not wish the blame pu t on any man t ha t our g overnment sent over 

there. We note the pleas for help, for the torture d, wounded, maimed persons in 

Viet Nam alone. We are sick with the thought of our boy having to make the 

choice of staying out of the uniform, for thre e years, and then being murdered 

in that country which he would rather have done something else for.

We have all his letters in the less tha n four months th at he spen t there in 

Phu Bai and Dong Ha in 1967-68, as a Marine. He didn’t like what he saw 

happening to those poor peasants in the fields. He d idn’t like what was happening 

to his “buddies,” around him. His C.O. wrote th at he was a “brave soldier,” 

bu t his buddies wrote after his death, th at Larry was still argumenta tive when he 

felt something was wrong around him.

We feel th at it is “sick” to expect boys to get in th at uniform, and sudd enly, 

we are supposed to be “proud .” There are so many more ways for a paren t to 

be proud of th eir children tha n as military people.

There are so m any more ways for us all to be “strong,” so m any more tal en ts 

to be used, to help underdeveloped countries other than using the weapons our 

leaders choose.

Amnesty for those boys who exposed their feelings, and hearts and chose no t 

to kill or be killed.

Our only peace of mind lies in knowing our Larry supposedly died alm ost 

instantly of his wounds. He did not linger, maimed somewhere.

Mr. and Mrs. Lawrence G. Leigh.
816

Sta te m e n t fo r t h e H ouse J udic ia ry S ubcom m it te e H ea r in g s on Am ne st y

S u b m it ted by J im M cC lella n , N a tio na l C am pa ig n C o ordin ator fo r

D r. B en ja m in Spo c k’s 1972 P r e s id e n t ia l C ampa ig n an d fo r t h e P e o p l e’s

P ar ty

Discussion of amn esty for those who refused to fight in South east Asia misses 

the point. Th ey killed no one. In fact, the y caused no harm at all. Th ey did not 

abandon their families and homes in the face of an enem y att ack . Their coun try 

was never in peril. Th ey merely clung to the vision of what this cou ntry stands 

for, while their polit ical leaders lost the vision completely. And their resistance 

to a gove rnment gone mad was purely passive. If there is to be a discussion of 

forgiveness, those who resisted the war and were forced into jail or exile as a 

result will have to be the forgivers, not the forgiv en.

Most Americans b y now agree that the war was a trag ic mistake, that it should 

never have been started, that it was waged for reasons that have blemished this 

cou ntr y’s image perhaps irretrievab ly. Even those who still hold to the belief 

that American interference in the war was justifiab le disagree with the manner 

in which it was conducted. And few can be pleased with the fruits of American 

inte rven tion — a dictatorial regime in Saigon which suppresses the very freedoms 

American servicemen were told their sacrifices were helping to win for the Vie tna ­

mese people.

The longer the war dragged on, the more the American people grew weary and 

disillusioned by it. In the war ’s early years most Americans accepted the flimsy 

ratio nale for inter vention offered by the Kennedy and Johnson Administrations, 

if not with enthusiasm, at least with a sense of dut y. As time passed, however, 

those who were aware of what was rea lly happening in Indo china raised growing 

doubts in the public mind. In the war’s final years the established press came to 

realize it had been hoodwinked by government press releases, optimistic bod y 

counts, and smilin g reassurances from Administration officials, and the American 

people began to get their first real look at the nauseous mess their government 

had involved them in: the destruction of Vietn amese villages, massive removal 

of civilians from their ancestral lands, invasions into neigh borin g neutral countries, 

search and destroy operations, wide use of napalm, comp uterized bombing from 

aircraft so high the civilian population seldom saw them, M y Lai sty le massacres, 

herbicides and defoliates, the intentional bombing of dikes and Ba ch Mai hospital, 

destruction of rice crops, tyr an ny and corruption in Saigon. B y the war ’s final 

day s disenchantmen t was so pervasive the Nixon Adm inistration was down to 

its last effective defense of continued intervention. Ironica lly, our obj ective in 

fighting the war was to win the release of those Americans captured while fighting 

it.

If the American people had known in 1960 what the y know now, the y would 

not have sanctioned the inter vention in Vietnamese affairs. Thos e who refused 

to fight knew sooner than most citizens that the war was wrong. Should the y be 

punished for arriving early at a position millions now hold?

Throu gho ut the public deba te over amn esty gove rnment officials have warned 

abo ut the effect such an act might hav e on their abi lity to wage future wars. 

Ther e can be litt le doub t that it would make it more difficult for the government 

to raise an army. Bu t the difficulty of raising an army would offer a needed check 

on the pro clivity of governments to go to war. Fut ure administr ations would be 

more relu ctant to comm it the nation to a war the American people neither 

supp orted nor fully understood. And afte r all, if people don’ t want a war the 

gove rnm ent which supposedly represents them has no business for cing them into it.

The resistance to the war in Indo china is a hea lthy sign. It shows tha t the 

democratic ideal is co ntinuing to m ature and develop amon g the American people. 

There was a time when the whole population would have dropped eve rythin g and 

marched off just because their leaders told them the nation al inte rest demanded 

it. Now, people are thin king for themselves, questioning what their elected officials 

say and do, and acting on their informed judgments. This kind of independent 

thin king should be encouraged, not punished, for it mark s the eclipse of government by the people over gove rnment by the government.

Likew ise, people should not feel anim osity towa rd those who cannot support 

the course taken by their government. The righ t to obe y conscience is the essence 

of freedom. It is a righ t that should be respected.

Ma ny of our ancestors came to this country to escape tyr anny and to avoid 

par ticipating in wars the y considered unjust. Th ey came here because the y know 

this was a place where people of conscience could find refuge.

To punish those who resisted the Indochina war or to force them into exile is to 

renounce an impo rtant part of the American heritage. Instead we should show tha t 

America is still a sanctuary for people of conscience.
817

Amnesty is for those who have comm itted crimes. It is something to be considered for those who waged w*ar illegally, who lied to the American people and 

manipulated public opinion, and who ordered the unnecessary deaths of hundreds 

of thousands of Americans and Vietnamese, not for those who refused out of 

conscience to assist them. Those now serving prison terms for refusing to serve or 

refusing to fight should be released and they, along with the war resisters who 

have already completed sentences, should be compensated for the disruption of 

their lives. Those who went into hiding and those who left the coun try because 

of their opposition to the war should be unconditionally invited to return home.

Duncannon, Pa., March IS, 197^.

Rep rese ntative R obert W. Kastenm eiek,

House Judiciary Subcommittee on Civil Liberties and the Administration of Justice.

Dear Representative Kaste nmier: I wish to sub mit the following views 

for the record on the subject of amnesty. For the past thre e years I have been 

State Director of Selective Service for the Commonwealth of Pennsylvania and 

the youngest draft direc tor in the natio n. I have submitte d my resignatio n to the 

President effective Marc h 12, 1974.

The very title of your Subcommittee, Civil Liberties and the Adm inistratio n 

of Justice, compels me to register the strongest possible opposition to unconditional amnesty for Selective Service violators.

I consider amnesty to be a question of law and I base my opposition on the 

principle th at we are a natio n of laws, not of men. The Selective Service laws 

were written by our elected officials and, of course, subject always to judicia l 

review.

No young man in this natio n was compelled to serve in the Armed Forces a nd 

subsequently no one was forced to go to Vietnam. All men ordered for indu ction 

had the alternativ e of refusing induction and prese nting their defense in a cou rt 

of law. Many of them did.

Even Ghandi and Thoreau recognized th at those who would disobey the law 

must be willing to face the penalties, as a consequence of their action, and as a 

dem onstratio n of th eir beliefs.

Those who refused induction or deserted military units and subsequently fled 

our country or otherwise made themselves unavailab le to the due process of law, 

have faced neither their obligation to their country nor their obligation to the ir 

conscience.

When I was appointed Pennsylvania Director of Selective Service I s tat ed tha t 

I was opposed to the draft; not as a means of procuring soldiers, bu t because of the 

many deferm ents th at prevente d an equitable application of the one law in our 

natio n t ha t could eventually result in the loss of life on ea rth for those who obeyed.

However one views conscription into the armed forces, the single concern of 

all citizens must be th at each man be tre ate d equally under this law.

We have never lived under a form of government whereby we did not have th e 

power to change any law and even amen d the oldest Con stitution now existing 

in the world. Each of our communities may choose a t the voting poll the person 

to represen t their views in Washington.

There may never be a law written in the Congress t ha t is not opposed by various 

of our neighbors for various of reasons. This is the exact purpose for which you 

are now listening to both sides of this issue.

As our elected representatives you must decide upon the final law in our behalf 

and as citizens we m ust be prepared to comply with the existing law and, if we 

so believe, work within the system to bring abou t any changes.

Therefore, I urge you to consider the am nesty issue as a m atter of law and recognize th at the inherent danger of allowing individuals to choose which of our 

laws they will adhere to is in direct proportion to our will to remain a free society. 

Sincerely,

R obert D. Ford.

Statement on Amnesty Submitted by Center of Concern, Washington, D.C.

Two hundred years of American history demonstrate t ha t the quest for justice 

is a constan t and painful struggle. For freedom to fluorish and law and government to serve a pluralistic society, expediency, justic e a nd unde rstanding must be 

brou ght into balance within a dynamic tension. It comes as no surprise, therefore, 

that the current age should have to grapple with issues of justice. The Watergate
818

scandal, racial equality, and the problems arising from the energy crisis and the 

national economy are examples of such issues. Everywhere they are debated. All 

three branches of government are concerned with them.

Another question, however, looms large and substantially neglected: amne sty 

for the exiles, deserters, and prisoners of the Viet Nam War. The problem is p art 

of the legacy of the longest war in American history and of a period of bitter 

internal dissent. It raises the same fundamental questions as other, more visible 

issues. It deals with people, with justice, with understanding and forgiveness; 

but it is in danger of being dropped or ignored amid the other concerns which 

press us. Th at would be unfortu nate , for to drop it would be to add in the future 

another group of voices to those victims of the national will who already call us 

to account: Indians, minority groups, small and weak nations. If acted upon, it 

can become a powerful sign of our natio nal determination to stand symbolically 

and really comm itted to the principles of liberty and justice upon which we all 

will ultimately rise or fall.

With this in mind, the Center of Concern strongly supports action for a full 

and unconditional amnesty for all exiles, deserters and political prisoners of the 

Vietnamese War period. The effort, it should be noted, is for amnesty, a confident 

nation’s legal way of healing national wounds, when reconciliation offers greater 

promise tha n punishment. It offers reconciliation, avoiding moral judgments 

about the legal violation. By refusing to judge those who would retu rn to our 

land or be freed from our prisons, it permits the emotions raised by the war to 

cool slowly and affords the opportunity for a constructive reunification of our 

fractured American society. Since am nesty sets up a neu tral situation in the law, 

it gives breathing space to all of us who have strong opinions abo ut the war. 

Without taking away the force of those persuasions, it provides the only practical 

way to look to the futu re by freeing us from the necessity of carry ing forward, 

year afte r year, the pain of th e war years.

As a means to u nity in the inte rest of progress, amnesty will affect most directly 

several segments of American society. On one side stand those who have served 

in the military, supporting the war at great personal sacrifice. T hey ask appre ciation for the course of action they have taken. Rein tegration into civilian life has 

been frustrating for many of these men. The war’s unpopularity and the national 

desire to forget have mitigated the traditional welcome afforded veterans by a 

grateful nation. Instead, they are having difficulty obtaining jobs, particula rly 

where the arbitra ry and questionable coding system for discharges has worked 

to their disadvantage. Having risked everything in the defense of national policies, 

they now are stunned to find that few seem to care. Amnesty and reconciliation, 

by their very nature, presuppose fair and just treatm ent for these men. On the 

other side stand those who have left military service without permission or have 

gone into exile and prison, also a t a personal sacrifice. T hey ask for understa nding 

and a chance to offer their talents in the nation’s service.

Both sides ask vindication for the role they have played. But the war was 

controversial. Its rightness and necessity will be debated for years to come. 

Neither side, therefore, can expect more tha n mutual forgiveness and forgetting. 

For, when the claims of justice stand in opposition to each other, only the motivatio n of a greater good will lead the sides to lay aside the ir disagreement.

Who would be eligible for amnesty? The first group includes all those who fell 

victim to the fact tha t, despite the intent of the selective service laws and the 

efforts of adm inistrators to enforce their spirit, the dra ft did no t fall upon all 

Americans equally. Those with less education and low’er economic st atus inevitably 

bore the bru nt of the suffering and learned the historical trut h th at wars are 

often a poor man’s fight. Often inexperienced, less educated, and inarticula te, 

they were drafted in the weakness which springs from lack of knowledge. Too 

late some found themselves caug ht up in a war in which they wanted no part 

and deliberately and conscientiously left the military service. Officially termed 

deserters, many of them hardly deserve the onerous conn otations which the 

epithet carries: cowardice, irresponsibility, disloyalty. For many of them, it was a 

free and courageous act, performed from conscientious conviction at a high personal cost.. Who will prolong the bitterness and skepticism among these little people 

by pointing the accusing finger at them? Have they done a greater wrong tha n 

the injustice which society imposed upon them in the first place?

A second group of the war’s victims are those who are now in exile or otherwise 

being punished for dissenting from the war before the selective service legislation 

was changed midway through the war.

They suffer from the effects of legislation which has subsequently been altered. 

Their crime, it seems, is not their personal beliefs and the action which they took
819

upon them, bu t the date of their birth and dra ft notice. Who, now th at the war 

is ended, will sta nd between them an d their free re -entry into a society which has 

already conceded the point for which they have fought and suffered?

The third group which would be eligible for an unconditional amnesty are 

those who accepted prison or exile on account of their conscientious opposition 

to this par ticu lar war. No one denies th at the morality of the Viet Nam War 

was questionable. Division over it racked American society for years a nd created 

dissonances which still echo to the far corners of the land. The rhetoric of the 

truce has not quieted the mixed judgments and disagreements. Yet, in the prosecution of the war, only male dissenters who fell w ithin a certain age span were 

forced to chose penalties as their means of reacting. Many chose th em freely and 

painfully and are still paying the price. It amounts to a perpetuation of the internal 

conflict, this prolongation of the punishment of the segment of society which, 

necessarily, voted against the w ar with its feet. Who among us can afford this 

self-indulgent bitterne ss which continues the divisiveness? Depending on the 

point of view, amnesty for these men is a matt er of justice or forgiveness. Either 

way, it allows the disagreements of the past to drop away like stones into the 

water, rather tha n forcing us to bear their weight in our society unnecessarily 

for years to come.

The last group to benefit from amnesty would be those who refused to serve 

out of a personal sense of fear. This is th e most difficult group of all to deal withl 

individual motivatio n is impossible to determine, and the idea of being mercifu: 

to “cowards” is repu gnant to most people. Yet this group of people touches us 

at the very hea rt of our social existence. Precisely because motivation cann ot 

be determ ined, or the amount of fear measured in a balance against the proportion of conscientious dissent, it prev ents us from posing as each oth er’s judges. 

To th at extent, we are called upon to forgive what is necessary and to work together for the greater good. Forgiveness, after all, is the sine qua non of every 

effective life and every vib ran t society. For which of us can sta nd before his 

peers as a ju st man, and what society enjoys a histo ry free of injury to people 

within and outside its boundaries? In the face of an uncertain future, the carrying 

of grudges and indulgence in self-righteousness are luxuries which the United 

States cannot afford. Amnesty, in this case, is a matt er of forgiveness—an act 

both generous and u ndertaken for the common good.

What is the futu re of amnesty? The President has already sta ted his strong 

opposition to any grant of amnesty during his adm inistration. We believe th at 

his judg men t is mistaken and unfortu nate. Under the circumstances we look to 

the Congress to assume the leadership in this neglected bu t vital area. It is a 

ma tte r of justice, of forgiveness, of forgetting, of common sense. Challenged by 

their leaders to respond generously in this situation, we believe th at m ost Americans will respond as favorably as they always have. Beset on all sides by crisis 

in government and natio nal disunity, confronted with monumental and unprecedented problems, the time is opportune for America to lay aside her bitte rness 

and give up the preoccupation with the wounds of the past. Amnesty can free 

us of some of these burdens and enable more of us to work togethe r for the common 

good. T hat is our best hope for the future, and tha t, we firmly believe, is the best 

affirmation of the ideals which two hundred years ago first beckoned the coun try 

into existence.

Air Force Sergeants Association,

Washington, D.C., March 13, 1974.

Mr. Robert F. Kastenmeier,

Chairman, House Judiciary Committee,

U.S. House of Representatives, Washington, D.C.

Dear Chairman Kasten meier: On behalf of the thousand s of enlisted men 

and women of our association, it is essential to forward to you and the other 

distinguished members of your committee, our position on the very controversial 

and emotional issue “Amnesty” .

Enclosed is a copy of the Congressional Record conta ining the Honorable 

F. Edward Hebert’s statem ent on the floor of the House of Representatives 

regarding our resolution on “Amnesty” .

From time immemorial, Americans have had to first fight to win the ir freedom 

in this land and then trav el to foreign lands to help preserve th at freedom. We 

could all philosophy as to the prudence of such action, yet in order for all people 

to live in peace and enjoy certain freedoms, we often utilize the following: “For
820

every right—there is a corresponding responsibility; for every privilege—there 

is a corresponding obligation.” We deem these statem ents to be the basis for our 

stand on the issue of “A mnesty” .

We would ask th at this letter, along with the copy ex trac ted from the Congressional Record of Janu ary 31, 1973, be entered into the official record of hearings 

on “Amnesty”.

Your response to this requ est will be deeply apprecia ted by all members of 

our association who have faithfully served this grea t nation and those who are 

currently serving in our United States Air Force.

Yours in dedication and service,

Donald L. Harlow, CMSA F (Ret.),

Director of Legislation.

Enclosure: Extract of Congressional Record.

[From the Congressional Record, Feb. 1,1973]

Air Force Sergeants Association Opposes General Amnesty—Address of

Hon. F. Edward H ubert, of Louisiana, in the House of R epresenta tives, 

Wednesday, January 31, 1973

Mr. Hubert. Mr. Speaker, I take this occasion to bring to the attention of the

House a resolution adopted by the delegates at the most recen t convention of 

the Air Force Sergeants Association held in Sacramento, Calif., this past fall.

The resolution concerns the question of granting amnesty to dra ft dodgers and 

deserters who have fled the coun try to avoid serving in the Armed Forces during 

the Vietnam war. Because it s tates the case against a general amnesty so well and 

because it is so timely in its message on the subject, I am going to ask th at the 

resolution be printed in the Record in its entirety, so th at all Members of Congress 

will have an opp ortu nity to read it:

O PPO SES G EN E R A L AM N ES TY

Whereas, approximately 55,000 Americans have died from all causes during the 

course of the war in Indo china an d scores of thou sands have been wounded, many 

seriously; and,

Whereas, over 1,600 Americans are either prisoners or war or are unaccounted 

for by th e enemy are still carried as missing in action; and,

Whereas, the President of th e United States has s tat ed tha t he would n ot gra nt 

any form of “ Amnesty” while American Servicemen were fighting in Vietnam nor 

while prisoners of war were being held in North Vietnam; and,

Whereas, nearly 5,400 Americans are, as members of the immediate families of 

our POW /MIA’s, tragically touched by the inhumanness of our Comm unist foes;

Be it resolved: the Af s A recommends th at no form of general or selective amnesty be granted to all or any of the dra ft dodgers or deserters until the U.S. 

Combat role in Indochina has drawn completely to a close, and our prisoners have 

been retu rned to our shores, with a valid accounting of our missing in actio n; and,

Be it further resolved, th at when the foregoing conditions have been fully met, 

then and only then, should a deliberate case by case review' be und ertaken by 

those who, having turned their backs on their country in her hour of need, nowseek the full rights of citizenship when boastfully they chose to evade its accompanying responsibilities.

[From the Miami News, Mar. 6, 1974]

Congress Should Offer Amnesty

Members of the House Judiciary Comm ittee will take time off from the impeach ment proceedings to begin hearings tomorrow on gran ting amnesty to 

Vietnam war dra ft resisters and deserters.

The hearings mark the beginning of a serious national deba te on the fate of an 

estim ated 70,000 young men who went to jail, fled the country or went underground 

rather than participate in the now-discredited war.

Deserters are a separate problem because they accepted the military role and 

then took off. Their cases deserve individual, bu t charitable, evalu ation. Those 

w’ho refused to serve at all should have b lanket amnesty.

The President, whose administration needs more than a little amnesty for itself, 

consistently has opposed the idea of le tting these other prisoners of war off with 

less than the full punishment provided by World War II vintage laws.
821

President Nixon ordered special tre atm ent for Lt. William Calley and says he 

doesn’t want to hit convicted felon Spiro Agnew “while he’s down,” bu t is more 

than willing to impose jail sentences on men who have alrea dy lost y ears of their 

lives.

The crooked former vice president and the convicted murderer of 22 civilians 

walk free on American streets while 70,000 earnest young men suffer.

These men harmed no one, cheated no one and violated no one’s civil rights. 

Their only crime is th at they dared to say “N o” to an insane policy th at divided 

the nation almost to the point of destruction.

Resolution on Amnesty From Canadian Council of Churches

The Executive Committee of the Cana dian Council of Churches met in Toro nto, 

March 21, 1972. The Committee passed the following resolution and directed 

that it be released to the press:

“ (a) Th at the Cana dian Counil of Churches fully recognizes t ha t the granting 

of amne sty by th e United States Government to its citizens who have gone abroad 

in opposition to the Southeast Asia War is a m atter which must finally be decided 

solely within the United States.

“ (6) Th at the Cana dian Council of Churches, however, having assumed a 

ministry to war resisters who have immigrated to Canada, has a deep pas toral 

concern for these young men, and in particula r, a concern t ha t their civil rights as 

U.S. citizens be fully protected and th at maximum possible choices be open to 

them in planning their futures.

“ (c) That, therfore, the Canadian Council of Churches expresses the hope th at 

the people an d government of the United S tates of America will provide a general, 

non-punitive amnesty to young Americans in Canada who, in resistance to the 

Southeast Asia War, have broken civil or military law.

“ (d) That, furthermore, we hope th at many of these young Americans, to 

whom our borders have been properly open, will choose to make their future in 

Canada when the day arrives when they m ay r etu rn to the United State s without 

jeop ardy.”

Statement of J ohn W. Piercey for the Subcommittee on Amnesty of the

House Judiciary Committee

My name is John W. Piercey. I live in Vienna, Virginia. I am a retir ed Foreign 

Service Officer. In 1966-67 I was a member of the Public Affairs Sub-Committee 

of the Viet-N am Task Force in the State Dep artm ent.

My son, Bruce, is a “ deserter”. He dep arte d Fort Leonard Wood early in 1968, 

left the country and has resided in Norway since th at time. Bruce’s act was totally 

an individual decision—made against the advice of his parents. Bruce has joined 

no groups, has never denounced his country, its leaders, its policies nor has he 

ever praised our enemies or hoped for the defeat of his country or its allies. Bruce 

had a hard time getting a job initially bu t soon was fully self-supporting doing 

industrial research, then medical research as pa rt of internationally-recognized 

cancer research team (he is a cytologist) where he was at first a volunteer and 

then a salaried member and for the last year a computer technician. He married 

the daughter of a UN official (a Norwegian) and has a two year old daughter. 

The Norwegian Government has issued him working papers and a passport. He 

has expressed no desire to return to the United States bu t of course woold like 

to have his name cleared and to have the right to visit, or if he should decided 

eventually to do so, retu rn to the U.S. He has never asked me to intercede for 

him in any way. He has remained from the beginning a close a nd valued mem ber 

of our large family and we hav e visited a number of times in Can ada and Europe.

I make this s tatement because some people, including some congressmen, have 

a stereotyped view of “the deserter” and place him apart from o thers who refused 

to participate in the war—such as dra ft evaders (and of course the much larger 

number who evaded in legal ways—CO’s those who hid out in college, those who 

feigned illness or used othe r devious ways to avoid service.)

Bruce did not intend to avoid his m ilitary service. He doubted the value of the 

war, deplored its horrors and being a kind and gentle person found participation in 

it distasteful. Yet, probably in part persuaded by my own view’s, decided not to 

continue into grad uate school with his medical studies and became subject to the 

dra ft in the fall of 1967. He hoped, indeed, th at his doub ts about the war would 

be dispelled by the training he would receive.
822

The reality was tha t the three months of basic train ing distressed, discouraged 

and repelled him to the point th at he felt psychologically unable to stay with it. 

Maybe it was his gentle nature, his innate dignity, his sense of decency and fairplay 

that kept him from accepting as training what some military men call necessary 

“harassmen t”. Maybe Bruce is a person who is just incompatible with military 

methods. I think th at is only pa rt true. Bruce is no softie, no sissy. He is tough, 

wiry—6 foot 3 inches tall (and wrote me th at in the toughest field train ing only 3 

of the 60 in his group usually finished.) In other words it wasn’t the physical— 

it was th e psychological a tmosphere which repelled him.

Bruce found th e discipline childish and petty. He arrived at the camp sick from 

a cold and later had the flu but refused to ask for sick leave or hospitalization because all who did were ridiculed, threaten ed and insulted for malingering (perhaps 

some were). After hours in the field in the coldest winter for years, and after 

exhaustion they were denied the right to sit on their beds and forced to sit on the 

cement floor. If caug ht reading a newspaper, they were punished or penalized. 

Contests were held, then the results were doctored. Funds were collected for causes, 

and then the funds used to buy beer. Threats made bu t often not carried out. 

And so on.

One series of incidents on one particu lar day illustrate why my son found the 

“tra inin g” disgusting. One morning when they were to go out for their 5 a.m. 

field training, he found th at someone had stolen his cap. Suffering from a cold 

and a severe headache, he as a last resort put on a baseball cap. This enraged the 

officers two of whom struck him on the head with their hands. When a third 

started to do so, Bruce fended him off with a blow of the bu tt of his gun. That 

evening his squad leader m ade a talk to the group—complimenting some criticizing others. He walked over to Bruce and proceeded to twist his nose. Bruce told 

me th at he had seen others cringe under this treatm ent and decided it was 

not going to happen to him. He slapped away the man’s hand. Thereupon the 

group was dismissed and Bruce ordered into the back room. The squad leader, 

who was drunk, then pounced on Bruce to give him a beating. He swung Bruce 

into the wall and cut a gash in his head. (When he came home for Christmas, I 

took a picture of Bruce playing the piano and this gash is clearly visible on the 

side.) Bruce decided to defend himself. He wrestled the squad leade r to the floor 

and simply s at on him for about 20 minutes, when, humiliated, he begged Bruce 

to le t him go.

Bruce was so weak from flue and cold th at when the Christma s leave came, 

he managed only to get up to Lawrence, Kansas and then stay ed in bed for four 

days before he had the stre ngth to come home to Virginia. He told me th at he 

began to feel like a human being again when he opened the door. As distressed 

as he was by these experiences, he was determined to see it through and even returned a day or so early to cam p. But in the next two or thre e weeks he had made 

his decision. He just didn’t want to make over his personality to fit into a system 

he found detestable, to be under the command of people he found contemptible. 

I think he was so depressed and disturbed by these experiences th at he felt he 

would lose his sanity if he stayed . I asked him why he did not make charges again st 

those who had used violence on him. He responded th at he really did not w ant to 

hu rt the squa d leader who was alread y in trouble and who badly needed a promotion. It ju st wasn’t in his cha racter to try to accuse people and anyway it appea red 

it was all pa rt of th e accepted system at the camp. (I wrote the CO about these 

events later and in reply an officer showed some alarm and said such things 

were “no t condoned” .)

In sh ort, a young man who entered the service with good intentions was simply 

driven away by stupid, perhaps illegal, training methods. Here is a case of a young 

man with exemplary character, a fine school record, a fine record of public service, universally respected by his friends and associates. I don’t think he “deserted”— I think the military deserted him. He even told me th at he had hoped 

to be fully convinced and enthused about the war effort.

Neither Bruce or his family have suffered greatly over this. He has adjusted 

and we have adjusted. But the record ought to be cleared and such young men, 

if they wish, should have an opportu nity to live in or visit the United States.

Bruce would not thin k of return ing if it m eant trials or possible imprisonm ent. 

Why should he?

My point in writing this statem ent is to show th at violations of the military 

rules are not necessarily the fault, or only the fault, of those who left.

I would suggest th at in such cases these young men be permitted to make 

depositions abroad which might clear them—or be permitted to return for hearings and if they do not want to accept the result be perm itted to go into exile
823

again. This latte r is suggested in the very intelligent article by Rober t Delaney 

in the Septem ber 1, 1973 issue of A MER ICA. Finally, I would argue that this country ough t to be very lenient of violators for they refused to participate in a war that even the majority of the Foreign Relations Committee of the U.S. Senate repeatedly denounced (as well as swarms of intellectuals, ministers, professors etc.) Anything less tha n amnesty under 

these conditions seems to me pure hypocrisy.

St a te m e n t of G u nnard L a n d er s, F all C r e e k , W is ., to t h e C o n g r essio n a l

S u bcom m it tee on Am nest y

First some credentials: I served in Vietnam 1968-69 as a rifle platoon leade r in a relatively secure area. In six months field du ty I only had fifteen men wounded 

and one killed, out of an average platoon stre ngth of 24 men. My actions and the actions of every American who served in Veitnam were either honorable on the basis of their own merit, or they were a sham in th at we took any action at all. Irregardless of the viewpoint, to show compassion for deserters and dra ft evaders will no t and c annot make our pervious actions honorable or dishonorable. And th at goes for the dead soldiers also. If any citizen feels we will be dishonoring th ose who died by gran ting amnesty then the acts of those who died could not have been honorable in the first place.

Exile is spiritual castration—Solzhenitsyn. Should deserters and evaders perform an act of contrition for displaying morale courage, for speaking up for human life, for failing to respond to a war th at was never quite declared, th at for years was based upon a fabricated incident in wrhich 

the most dangerous enemy act was one of our own destroyers almo st opening fire on ano ther destroyer? No free amnesty? Those who fled have not suffered? Have they been able to begin careers, be with their families? When does the 

self-delusionment of this game end? The Vietnamese, North and South, have suffered over 4 million casualties. 

And the war still goes on. What has anyone gained? Freedom? They never knew what it was. They still don’t. Freedom from communism? Th at’s a big, powerful, hate producing word. It means just as much 

as freedom to the average Vietnamese. It’s all crap. Some people have testified we don ’t want to set a preceden t for the next war by gran ting amnesty. Laws arc made to be obeyed or else we will have lawlessness. The constitu tion grants congress, and only congress, the right to declare war. The congress shirk s its duty, fails to properly investigate and und erstan d the Gulf of Tonkin incident (the two destroyers for you unenlightened) and in the secret hea t of patriotic fervor passes their duty, indeed the ir constitutional responsibility to the President, who further makes excuses with the law to conduct 

this undeclared war. Talk abo ut setting a precedent. A body from the hinterlands sees a grea t deal of destruction and killing going on, ostensibly to stop the communists (th at scare word again) and give the poor souls of Vietnam, (of whom the average American still doesn’t know anything abo ut and doesn’t wa nt to know a nythin g abou t) a chance at freedom, something they have no histo ry of, and were expected to learn abo ut during the war. The law says go a nd kill. Some follow, (Blindly?) others resist the law, some tacitly, through loopholes, knowing people, money, get married, and drop a kid, etc. (you’d be surprised). Others want to stand up, speak their mind. They take a 

more obvious route, they openly break the law7

. They must pay. Anyone genius 

enough to discover a loophole is free. You see it doesn’t ma tte r if justice is served or not, all we w ant is the appearance of obeying the law. Hence our illusions of being a great and righteous people can live. Punish the evaders and deserters. The prior violations of their basic constitutional righ t to have the ir congressman 

vote for or against the war means nothing. They broke the law. But to get back to the point of se tting a precedent. Does not the fact th at the congress is willing to shirk its duty, th at the President is allowed to circumvent the constitu tion and send any of us off to war, in effect with out our sayso. Does 

th at not constitute a precedent for future administrations to follow? But of course fighting that is a storm y course, the tough course calling for men of courage, men of leadership. I’m confident it will remain untouched until at some later year it is much too late. Tis much easier to talk abo ut a bunch of crummy dra ft dodgers, to w’orry abo ut the possibilities of the ir evading the 

dra ft or protesting when we plunge into our next undeclared war.
824

Incidently, I am aware of the war powers bill, which has clearly legalized the 

Preside nt’s right to begin a 90 day war. Which means of course th at once we 

star t something our honor will again be at stake, patriotism will rule, rational 

decision making will no t count.

I’d talk abo ut the hundreds of thousands of dead in Vietnam, bu t I’ve found 

out th at nobody really gives a damn. The point came many years ago when our 

honor, not necessarily the real thing, just the pretense of honor, became much 

more important tha n human lives. A blind following seemed better tha n harsh, 

painful though t, tha n ever adm ittin g to a wrong, or more imp orta ntly, by our 

top “leaders” , ever imagining they could be in error.

How sad a person, a country, th at cann ot admit a wrong. How sad a person, 

a country, especially a rich one, th at continually r ants abo ut its greatness rathe r 

tha n to demonstrate its humility. It’s easy to be ashamed.

I ’m not proud of what we did in Vietnam. I’d have to purge my mind of all 

th at I saw and learned, I’d have to again stra p on the blinders of patriotism in 

order to say any of what we did was truly right.

But the saddest thing of all is we are th at much the worse for what happened. 

We didn’t learn. We jus t pu t it behind us, errors and all. The few men of 

courage were pushed to the wayside. Our constitutio nal rights were stolen and 

men of congress turn ed their heads, (in shame I hope)

Calley is free, a hero to some. And over three hundred villagers at My Lai are 

dead. Wh at’s the lesson here? Should have I, a platoon leader like Calley, con ­

ducted myself the same?

We have an opportu nity to show compassion with the draft evaders, people 

who wanted to see the killing stop, who wanted to be involved in our government, 

who wanted the precepts of our constitution upheld.

Do we have the leaders who will stand up? Will we act?

I dou bt it. After all the resisters are only human beings. Who cares?

Statement on Amnesty by Charles T. Smit, Cook County J ail, Chicago, III .

Amnesty, as defined by the New Merriam-Webster Pocket Dictionary, is “an 

act gran ting a pardon to a group of individuals.” A rough beginning, to be sure, 

bu t one we can use for our purposes as a basic p oint to build from. First, I notice 

th at it is not an act of any p articular person or persons, therefore, anyone has the 

power to gra nt amnesty to anyone else. This is a fundam enta l assumption upon 

which I will base all my discussion. Now, one must ask, if I were to g ran t am nesty, 

who would I grant it to and for what actions? Further clar ity on this is gained 

by consulting the same dictionary for a definition of pardon. It says a pard on is 

“excuse of an offense without pen alty : Forgiveness; especially: an official release 

from legal punishm ent.” This gives us more clarity, for now we have need of 

someone in office with the power to dispense with legal punishments. Of course, 

I immediately think of a governor or a president, bu t I don ’t wish to narrow too 

rapidly the possible associations I can relate this power to. A broader approach to 

amnesty would, therefore, seek a broad interpreta tion of the word “official” . In 

a democratic context, the broa dest level of officialdom is the voting public, the 

citizen. Let us assume, therefore, th at this is the official we seek—the sovereign 

people of this nation. Now, who is most in need of amnesty from the people of this 

country?

My contention is tha t the people who m ost urgently require an amnesty from 

the people are those elected officials who secretly engineered public opinion in 

such a way as to further a conspiracy to bomb, kidnap, rob an d m urder the people 

of these United States of America. Of those now in office, this would include 

Mr. Nixon, his cabinet members and advisers during the period of direct U.S. 

involvem ent in the Indochina conflict, those members of the House of Representatives an d th e Senate who voted in approval of the Departme nt of Defense bu dgets 

during th at conflict, and those members of the Federal bench who used their 

position to repressively prosecute the n atu ral leadership which developed within 

the ran k and file citizens of th is nation. Therefore, as prim ary people in need of 

amnesty, I would cite Mr. Nixon, Mr. Agnew, Mr. Laird, Mr. Kissinger, 

Mr. Colby, Mi. Humphrey, Mr. McN amara, Mr. Rogers, Mr. Mitchell, Mr. R usk, 

Mr. Helms, Mr. Schlesinger, and other top level adm inistrators including the 

Joint Chiefs of Staff, all Senators and Represe ntatives wrho voted in favo r of the 

Gulf of Tonkin resolution and subsequent D.O.D. budgets, all members of the 

Federal bench who convicted war resisters, all presiding officers a t courts martial 

in cases stemming from war protests among members of the armed forces, etc.
825

It is m y assertion that all of these peop le are gu ilty of war crimes in time of undeclared and unconstitutional war in South East Asia. It would not be stretch ing 

the truth to asser t that such a con spirac y amo unts to high treason, therefore, 

amn esty should most cer tain ly be desired by thes e war criminals. In addition 

to these officials, of course, one would hav e to includ e all corporatio n executives 

and employees in “ Defe nse” con tractin g industry, all troops, marshalls, mil itary 

police, and other mil itary and civilian enforcem ent agencies who carried out the 

commands of their superiors when war crimes and/or repression of the peace 

movem ent was invo lved . Finally , afte r so ma ny yea rs of deceptive bombing, 

announced invasions after the fact, thou sand s upon thousands of casua lties, the 

American people have begun to use our power in way s that have direct ly and 

concretely impaired this jug gernaut’s war-making potential. We must now press 

even further, and grant these war criminals amnes ty o nly under specific co nditions:

(1) Th at all U.S. troops cease immediately all participation in any hostilities whatsoever . This includes all air force and nav al aviators involved in 

bombing missions anyw here on the fac e of the eart h; it includes all combat 

advisors still part icipating in m ilitary maneuvers in the field, be it Indochina, 

the Middle East, the Phillipines, Bra zil, Angola, Mozambiq ue, Ethiopia, or 

where ever they ma y be.

(2) Next we plan etary people demand a unilateral withdraw al of all U.S. 

troops from foreign soil, and,

(3) a halt to any and all arms sales by the U.S . government abroad.

(4) We further insist on the progressive disarmamen t of all nuclear weaponry and

(5) the termination of all research and developm ent of new weaponry, 

wha teve r its nature.

(6) Finally , we require the imm ediat e cessation of any and all “ Defe nse” 

cont racting production, and

(7) the conversion of these facilities to peacetime production as rap idly as 

humanly possible.

If the above stipulations are met, we will be satisfied in the good fait h and 

peaceful intentions of the abov e mentioned war criminal conspirators, and will 

organize a general amnesty to secure the lives of these mass murderers from the 

hostile rage of an awakened people. Without such essentially peaceful indications 

of sincere change and rehabilitation, however, these abov e named war criminals 

can only exp ect an awakened people to rev olt and to devo te our complete energies 

to the forced disarmament of sa id viole nt parties, for their own good and the good 

of the world’s people. Such is the amn esty we, the people, now offer.

Ma y Peace Consume You.

Sta t e m e n t on A m ne st y by t h e W o m en’s I n ter n a tio n a l L ea g ue fo r P ea ce

an d F r eedo m , W a sh in g t o n, D .C .

Genuine reconciliation demands that general unconditional amn esty be granted 

to all who are in legal jeop ard y because of the war in Indoch ina. The onl y exception would be for those who have com mitted acts of violen ce against persons, and 

even these person ’s cases should be reviewed individ ually to determ ine if amn esty 

is a ppropriate. Such general amn esty would include:

(а) Dra ft resisters and deserters who have exiled themselves to other 

countries.

(б) Those curr ently in prison or militar y stockades, those on probation, 

those who have served their sentences, those who are sub ject to prosecution 

for violation of the draft or militar y laws.

(c) Dra ft resisters and deserters who have gone underground to avoid 

prosecution.

(rf) Viet Nam era veter ans with less-than-honorable discharges.

(e) Those who have committed civilian acts of resistance to the war or 

are being prosecuted upon allegations of the same.

Approve d by the United States Section of the Women’s Internat iona l Leag ue 

for Peace and Freedom , in Biennial Mee ting in Boston , Mass., June 14-18, 1973.

Sta t e m e n t o f th e B rookly n D io ces an C om m is si on fo r W or ld J u st ic e an d

P ea c e, Ad opted M ay 24, 19 73

As we set our sigh ts on peace, the tra gedy of a war that divided Americ ans for 

yea rs would be magnified if it is a llowed to remain a source of division amo ng us. 

31-658 — 74— — 54
826

The same bitte rn es s th a t m ar ked th e co nd uc t of th e w ar now ch ar ac te rize s th e 

discussio n of am ne sty for th os e who chose not to par ti ci pat e in it or who ac tiv ely 

op po sed official polic y. For som e, th e refusal to serve was sel f-s erv ing . Others re ­

je cte d m ilitar y service be ca us e th ey rega rd ed U .S . part ic ip at io n in th e Vietnam 

W ar as wr on g b oth f or them se lv es a nd fo r th eir c ountr y. Be ca use of an affirm ativ e 

a c t of consc ien ce, th ey liv e in th e U nited S ta te s as fu gi tive s from th e law o r th ey 

ar e self-exiled fro m fam ily a n d co m m un ity. M an y wh o ha d ac ce pt ed m ilitar y 

serv ice ha d no op tion b u t to bre ak ra nks to re si st th e or de rs of su pe rior officers. 

The y to o ar e pa yi ng a hi gh p ri ce for t heir conscien ces.

The tim e ha s co me to co ns id er u nc on ditio nal am nes ty fo r all th os e now in leg al 

je op ar dy or othe rw ise pr ej ud ic ed wh ose pro te st ag ai nst par tici pa tion wa s m otiva ted by sinc ere consc ien ce. A fte r a lon g an d divi sive wa r, we feel th a t th e na tional 

in te re st w ould be b est serv ed by policie s of reco nc ili ation. We do no t ac ce pt th e no ­

tion t h a t r ec on ci liatio n no w di sh on or s th os e who fo ug ht in V ietn am . C ur de ad w ho 

fo ught in good co nscie nce ar e not ho no re d by re tr ib uti on ag ai ns t th es e wh o in 

good conscie nce chose n o t to fig ht. In ad ditio n, we rec og nize th e sa cred re sp on sibility of ea ch pe rson to fol low his co ns cien ce ev en in th e face of co nflic tin g law s. 

We recogn ize th is d uty a s d id the U .S . Bisho ps in th eir st ate m ent of 1968 (rep ea te d 

in 1971) defin ing th e m or al ri ght of se lectiv e co ns cien tio us ob jection an d ur gi ng 

am nes ty for t ho se w ho had e xe rc ised it. M or eo ve r, we wo uld like to a ss oc iate o ursel ves w ith th e se ntim en ts of B ost on’s C ar din al Cus hi ng as ex pressed in his 1970 

E ast er me ssage, th e la st be fo re his d eath :

“ W ou ld it be too m uc h to sug ge st th a t we e m pty ou r j ai ls of a ll th e pro te st er s— 

th e g ui lty a nd the inno ce nt— w ithout ju dgin g t he m , call ba ck o vc r th e b ord er a nd 

ar ou nd th e w'orld th e y ou ng m en wh o are ca lle d de se rter s, dr op th e cases th a t ar e 

sti ll aw ai ting ju dgm ent on o ur college y outh ? Cou ld w e no t do a ll th is in th e n am e 

of life, an d w ith life, ho pe . . . ?”

Afte r th e Ci vil W ar , Pre si de nt Li nc oln be gg ed fo r a po lic y of re co nc ili atio n, li e 

di d not rec eive i t an d as a co ns eq ue nc e we st ill suffe r th e d ivisiven ess of th e af te rm ath of th a t war. Let us n o t pay th e pr ic e ag ain for fa ili ng to he al th e n ati o n ’s 

wou nd s. More im port antl y, le t us n o t allow th e po litica l im pl ic at io ns of th is is sue 

to ob sc ur e th e b as ic m or al iss ue to which th e U.S. Bish op s ca lle d att en ti o n . An d, 

as Chr istia ns , th e love of C htist de m an ds th a t we fulf ill His co m m an dm en ts : 

to reco nc ile m an to Go d a nd m an to man .

T he Amn esty Qu estio n: A R ef le ct io n— Sta te m en t of C om missi on for

W’orld J us tice and P eace, Dio ce se of Bro ok ly n, N .Y .

Afte r th e long an d divisive Vietnam war, it see ms st ra nge th a t few' po lit ical 

fig ures a re tak in g a ny co nc re te a ct io ns t o he al th e bit te rn es s ca us ed b y it. Per ha ps 

th ey be lie ve th a t tim e is th e bes t he al er an d th a t mor e of it ne ed elap se before 

iss ues lik e am ne st y ar c ad dr es se d in an y sy st em at ic way .

The n ati o n ’s relig ious lead ers, ho wev er, ha ve ta ken a de fin iti ve st and on th e 

iss ue an d in te re st in gl y, th ey lin e up al m ost ov erwhe lm ingl y on th e “ p ro ” sid e. 

In th e co urse of th e la st seve ral ye ar s, vir tu all y ev er y m aj or rel igious grou p ha s 

issu ed a de cl ar at io n ca lling fo r am nes ty fo r th os e in leg al je op ar dy wh ose p ro te st 

ag ai nst p art ic ip ati on in th e Viet na m war wa s m oti vate d by consc ien ce.

The N at io na l Co nferen ce of C atho lic B ish op s, fo r ex am ple in N ov em be r of 1971, 

ex pressed “ past ora l co nc er n” fo r th os e wh o in conscie nce resisted th e w ar. “ Ih e y 

to o,” th e Bi sh op s ar gu ed , “ m ust be re in te gra te d as fu lly as po ssible in to ou r 

so ciety an d in vited to sh ar e th e opp ort unitie s an d re sp on sibi lit ies of bu ildi ng a 

b ett er n ati o n .”

For so me , th e r ef us al t o s er ve could ha ve bee n self- serving. B ut oth er s ce rtai nly 

re je ct ed m ilitar y service be ca us e th ey re ga rd ed par ticip ati on in th e \ ie tn am \\ ar 

as wr on g both f or them se lv es an d fo r th ei r co untr y. Bec au se o f an affirm ativ e act 

of consc ien ce, th ey co nt in ue to liv e eit her in th e U nited S ta te s as fu gi tiv es fro m 

th e law' or elsewh ere in exile fro m f am ily a nd c om m un ity. M an y w ho h ad acc ep te d 

m ilitar y serv ice ca me to be lie ve th ey had no op tio n but to br ea k ra nks to re si st 

th e o rd er s of su pe rior officers. T he y t oo are pa yin g a h igh p ric e fo r th eir consc ien ces.

Th os e wh o ar gu e fo r am nes ty b eli ev e th a t t he war i tself wa s a nat io na l m ista ke 

an d th a t m an y yo un g pe op le wh o refu se d in du ct io n, or wh o la te r de se rted , reco gnize d it as su ch lo ng be fore th e re st of th e nat io n. Thi s re co gn iti on , th ey say, 

cont ri but ed ultim at el y to a national po lic y of dise ng ag em en t. M or eo ve r, th ey 

ar gu e th a t th e essence of de moc ra cy is th e righ t to di ss en t an d th a t aft er a long 

and div isi ve war th e nat io n wo uld be be st se rv ed by a polic y of re co nc ili atio n.
Those who oppose amnesty believe tha t those who broke th e law must pay th e 

price. They argue th at citizens cann ot pick and choose those laws they will obey 

and ignore those they find morally objectionable. They ask: wh"t happens to a 

society of law under such circumstances? This, we note, is precisely the question 

put to Bishop John Wesley Lord of the United Methodist Church and Bishop 

Bernard Flanagan of the Diocese of Worcester, Massachu setts, a t Senate hearings 

in early 1972. Bishop Flanagan answered this way:

“* * * in the ultimate, a man’s conscience has to be the criterion by which he 

makes his moral judgments. He is obliged, of course, to form th at conscience on 

the basis of reflection, consideration of all the various viewpoints, the issues involved, but when he does come to tha t decision even though it might be against the 

civil law at the time, then it seems to be tha t we as Christians—and I’m speaking 

now of the Gospel—must accept his decision as one which is correct for him.” 

Bishop Lord followed: “* * * the only way we get good laws or better laws is in 

determining what laws no longer serve a good and useful purpose, and must be 

changed, and the only way to change some of those laws is to stand in defiance of 

those laws, tak ing the penalty th at such disobedience requires a t the moment, but 

with the hope th at new laws will become a pa rt of th e government * * * Law is 

constantly in the process of change, and without this priceless ingredient of 

conscience and determination to examine law, t o reexamine it, to find out why it 

is, we would be unable to establish a new and more satisfactory code.”

Another argument against amnesty is that reconciliation now dishonors those 

who fought in Vietnam. But, we must also ask ourselves, can the dead speak, and 

advise us? Does anyone presume to speak for them? Are th e dead who fought in 

good conscience honored by retribution against those who in equally good conscience chose not to fight.

In assessing the arguments on both sides of the issue, it is important to keep in 

mind jus t what amnesty is and what it is not. The root meaning of the word is 

to forgive—the law would decline to indict. Amnesty does not involve forgiving, 

but simply getting on with the business of life, with the reconstruction of the 

spirit of the natio n with all participating—not jus t those who were able to agree 

with the national leadership or those whose opposition cost them nothing. For 

many, including the late Cardinal Cushing, the issue was a simple one. “ Would 

it be too much to suggest” he asked in his 1970 E aste r message, “ that we empty 

our jails of all the protesters—the guilty and the innocent—w ithout judging 

them, call back over the border and around the world the young men who are 

called deserters, drop the cases that are still awaiting judgment on our college 

youth? . . . Could we not do all this in the name of life, and with life, hope. .. .?”

After the Civil War, President Lincoln begged for a policy of reconciliation. He 

did not receive i t and as a consequence we as a nation still suffer the divisiveness 

of the aftermath of that war. We should really ask now if we wish to pay the price 

again for failing to heal the nation’s wounds. More imp orta ntly, it seems clear 

that we ought not to allow the political implications of this issue to obscure the 

basic moral issue of th e right of conscience to which the U.S. Bishops and other 

religious leaders have called atte ntion.

Madison, Wis., March 6, 1974-

Hon. R obert Kastenmeier,

House of Representatives,

Washington, D.C.

Dear Mr. Kasten meier: I wish to subm it the following statem ent to the 

committee hearing on Amnesty.

A Universal and unconditional amnesty is urgently required for all U.S. 

citizens who have been or are now subject to pena lty for actions in violation of laws 

rela ted to the conduct of U.S. military pursuits in Southeast Asia. The U.S. 

involvement in Southeast Asia has raised basic questions of justice and morality 

for the American people, to such a extent th at no political or legal resolution 

of these questions seems possible. Indeed, the very idea of our constitutional 

government is threate ned by the present struggle between the legislative and 

executive branches of our government. The impending possibility of impeachment 

of the president is feared by many, since th e process itself suggests a fundamental 

weakness in our form of government. How could so m any people be deceived or 

mista ken in their selection of the president. Impeachm ent is a political act, expressive of a fundam ental error of judgment in the people— the honest failure of a 

people to secure honest and integral leadership.
828

Be ginn ing w ith th e ea rly 1950’s th e Am eri can ch ar ac te r ha s be en victim ized by an hy ster ical reac tio n to Co mmun ism . Anti-c om mun ism ha s become a su r­ ro ga te for pa tr io tism an d re ac tion ar y policie s ha ve repl ac ed th e re vo lu tion ar y sp ir it of ou r forebe arers. No won de r th a t ou r pr es en t hi stor ical pe rio d is de scrib ed va riou sly as th e age of aliena tio n, with a c redi bi lity gap an d a crisis of confi dence. W itho ut th e t ru st an d fid eli ty of its citiz en ry go ve rn m en ts m ust rely o n de ce pt ion and co erc ion to ap pe ar to go ve rn. Rhe to ric replac es ho ne st deb at e an d cy nicism become s th e ph ilo soph ic te m per o f the tim es. When cy nicism become s th e ide alism of th e yo un g, we, th e ol de r ge ne ra tion ha ve ro bb ed th em of th eir pat ri m ony. We m ust begin to en ge nd er a sen se of hope for ou r fu tu re , aw ay from th e re ac tion ar y pol icies wh ich cr ea te d th e de ba cle of Viet-Nam , and rega in our histor ical sen se of freedo m, re pr es en te d in ou r ow n re vo lu tio n. A mne sty is a po litica l be ginn in g of su ch ho pe . U ni ve rs al an d un co nd itio na l am nes ty m ust be th e chara cte r of th a t hope. We m ust not a tt e m p t to pe na liz e th os e wh o resisted ou r co lle ctive mad ne ss, no r sh ou ld we fu rt h er pe na liz e thos e who ha ve al re ad y su ffered im pr ison m en t, exile or oth er loss of civil libe rty. All reco rd s sh ou ld be wiped clea n, all citiz en ri ghts sh ou ld be re stor ed , all pas t, pr es en t an d anti cip ate d in dic tm en ts sh ou ld be ex pu ng ed from leg al reco rd . Violat ions of Se lective Se rvice Laws, of IR S law s in so far as th es e ar e pro te st s, less th an ho no ra bl e disc ha rg es fro m th e ar m ed serv ices,— all sh ou ld be co ve red 

under an am ne st y. T he po lit ical sig nific an ce of am nes ty is th a t we ar e tu rn in g our faces to th e fu tu re . We ca nn ot igno re th e p ast b u t we m ust lega lly fo rg et ou r cy nica l ne ed to av en ge ou r pa st , fo r th a t is to perp etu ate w hat is unbea ra ble . 55,00 0 de ad ; m an y th ou sa nd s mor e mai m ed in bo dy an d sp ir it; th ousa nds in exile an d under gro und ; m an y in pr ison s— an d billi on s of do lla rs of hu m an en ergy w as ted. And ev en mor e trag ic al ly , th e crue l and in hum an was ting of th e hum anit y of th e VietN am es e 

pe op le. . .

The re is no way hum an ly po ssible to adm in is te r a se lectiv e or co nd itio na l am ne st y th a t wo uld gen er at e th e sen se of ho pe th a t we ne ed as a pe op le, ll ow sh all we m ea su re t he a m ount or d eg ree of ato nem ent or e xp ia tion of gu ilt r eq ui re d fo r th e ac tion s of our m ilitar y in South ea st Asia? How m an y les s th an ho no ra bl e disc ha rg es we re ca used by th e ph ys ic al an d ps yc ho logica l in ab ility of yo un g me n to cope w ith a war th e American pe op le co uld not unders ta nd? Ho w wo uld we selec t am on g th em ? W hat of th e th ou sa nd s of ta x pro te st ors who ha ve gone u n ­ pe na liz ed ? Who s ha ll ad m in is te r th eir debt to so ci ety? W ha t of th e W hi te Hou se St af f an d ot he rs in go ve rn m en t wh o ac te d out of a sen se of “ N at io nal S ecu ri ty ” ? Su re ly th ey will be am ne stied! Who wo uld tr u s t th e po lit ic s of cr ea ting su ch a v ast b ur ea uc ra cy to ad m in is te r a s elec tiv e or co nd itio na l am ne st y? I as k yo u, lad ies an d ge ntle m en of th e co m m itte e, to pu rs ue th e po lic y of un iv er sa l an d un co nd itio na l am ne st y. It is a po litica l act of ho pe fo r th e fu tu re , in th e co nv ictio n th a t anyth in g less will perp etu ate a p ast we ca nnot ad m in is te r ac co rd in g to an y hum an e sen se of ju stic e. Let us tu rn ou r faces to th e fu tu re an d re st or e t o our yo un g t hei r p ro pe r p at ri m ony— a sense of ide alism in their fellowman

R es pe ct fu lly su bm itte d, D a n ie l J. G u il f o l l, 

Professor of Philosophy.

A m nest y an d R ec o n c il ia tio n C o a lit io n of W est e r n N ew Y o r k,

Kenmore, N .Y ., March 11, 1974-

M r. W il lia m P. D ix o n ,

Counsel, Subcommittee on Courts, Civil Liberties and The Adm inistration of Jus tice, Judic iar y Committee, U.S . House of Representatives, Washington, D.C.

D ea r M r . D ix o n : You r le tt er of M ar ch 7, 1974 to M r. K en net h E . S he rm an of th e W es tern Ne w York Pe ac e C en te r in vi te d me t o su bm it a w ritten st ate m ent to th e su bc om m itte e in ves tigat in g am nes ty legislation. M y st ate m en t is as follo ws : As C ha irm an of th e Am ne sty an d Rec on cilia tio n Coa lit io n of W es tern New York, I urge th e Co ng ress to adopt a ge ne rous am nes ty po lic y. A RC su ppo rt s un co nd itio na l am ne st y fo r dra ft re sisters, de se rter s, an d vet er an s with le ss -tha n- ho no ra bl e discha rges. W’e a lso e nd or se a clea ra nc e of th e reco rd s fo r all wh o ha ve suffe red im pr ison m en t be ca us e of th eir o pp os iti on to th e Vietnam W ar. The va st m aj ori ty of American s now co ns ider th e V ie tn am W ar a trag ic mis­ ta ke. M an y yo un g men ha d to m ak e th eir cr uc ia l decis ion on th e war w hen some go ve rn m en t an d rel igious lead er s we re al re ad y co nd em ni ng it, b u t be fore th e nat io n as a wh ole re pudia te d it . To pu ni sh th es e men wou ld on ly co m po un d th e 

trag ed ie s of th e In doc hin a conflic t.
829

Conditional amnesty, as some propose, is not genuine amn esty. I t is punishment, 

based on th e presum ption that the criminal action was not the war, b ut the refusal 

to participate in the war. War resisters have already endured the pains of exile, 

the stigma of prison, the anxieties of underground. They have suffered enough.

Amnesty for Vietnam war resisters is not a signal to future generations to refuse 

the legitim ate defense of our natio n. If anything, it is a signal to future presidents 

to think twice before plunging us into a nother Vietnam. It serves notice that future 

wars should be waged only with just cause and by declaration of the Congress as 

decreed by the Constitu tion.

The scars from Vietnam go far beyond the cemeteries of Indochina, the paraplegic wards of America and the enclaves of exiles in Canada. Almost half a million 

veterans have retu rned to civilian life und er the heavy pall of less-than-honorable 

discharges. Many have served in the front line of service in Vietnam. But their 

discharges, lifetime sentences in effect, weigh heavily against them in the job 

market, and disqualify many for civil service and veteran s’ benefits. I urge our 

government to wipe clean the slate for these men.

There is nothing the Congress can do a bout most of the victims of the Vietnam 

War. You cann ot restore life to the dead nor health to the disabled. But in the 

vast area under the amnesty question, you can restore legal and social health to 

hundreds of thousands scarred by the Vietnam tragedy.

The war was filled with cruel irony. Those who planned the war did not suffer. 

Those who suffered did not plan. Will we be remembered as the generation who 

readily forgave leaders who recklessly made war, bu t couldn’t forgive young 

rebels who made peace?

In recent weeks, Americans of all persuasions have heralded the courageous 

rebellion of Russian auth or, Alexander Solzhenitsyn, against the arrogance of 

power wielded by the Soviet Union. To many citizens, our own government 

misused its military power in Vietnam. Are we to cheer rebels who challenge the 

arrogance of power in other countries while condemning rebels who challenged 

the abuse of power by our own government?

I hope the Congress will move decisively in the coming months to repair, in 

so far as it can, th e ravages of war thr ough a generous policy of amnesty.

Sincerely,

E dw ar d C udd y, C h air m a n .

S ta te m e n t of N ati o na l C o u n c il for U n iv e r sa l an d U n c o n d it io n a l A m nest y

S u b m it ted by M r . J er e l W. Ol s e n , C oord in ator

The National Council for Universal and Unconditional Amnesty (NCUUA) 

acts on behalf of sixty organizations actively working toward the achievement of a 

just amnesty. A list of affiliates and the NCU UA Statem ent of Purpose endorsed 

by each is provided in testimony of Mr. Henry Schwarzschild of the American 

Civil Liberties Union, Project on Amnesty. The present hearings have little 

direct testimony from those who would be affected by an amnesty. Several groups 

within NCUUA are composed of these individuals. We criticize the fact that they 

have not been requested to testify. We will a dvocate their views, as well as the 

views of other affiliates, herein.

This submission provides a cursory overview of the issue of amnesty. It briefly 

discusses the following points: amnesty in the larger context of the yet unended 

war in Southeast Asia; preceden t for present-day amnesty measures; how many 

and what individuals would be affected: and an outline of what a just amnesty is. 

This submission leaves detailed discussion of these and other points to others 

who have submitted testim ony. (Among this testimony are oral presentations by 

three members of the NCUUA National Steering Committee— Mr. Rober t 

Musil, CCCO/An Agency for Military and Draft Counseling, Mr. Henrv Schwarzschild, American Civil Liberties Union Project on Amnesty, and Ms. Trudi 

Young, Clergy and Laity Concerned—as well as Ms. Patricia Simon of the 

NCU UA affiliate. Gold Sta r P aren ts for Amnesty.)

Perhaps the most emotional question for the American people since the retu rn 

of the POW ’s following United States troop involvement in South Vietnam, 

amnesty affects hundreds of thousands of Americans—some say more than one 

million. Yet the war goes on even today, supp orted by American dollars, equipment, bodies and minds. The war is very much alive for more than 200,000 political 

prisoners still incarcerated in South Vietnam, in violation of the peace accords. 

They must be released. Aid to the Thieu dictatorship must be stopped. Free 

elections must be held. Bu t the war is still very real to Americans as well. It is
830

real for the veteran who must live with nightmares of atrocities experienced while 

lighting in an unwanted war thousands of miles from home. It is real for the 

returned POW, perhaps imprisoned for years. And it is real for the individual 

in need of amnesty.

The current President has asserted tha t "Amnesty means forgiveness.” Nothing 

could be further from the tru th—unless the reference were to be directed toward 

the real criminals in what has been characterized by an American exile in British 

Columbia as: “a war that has never been declared, th at has failed to comply 

with the Geneva conventions, tha t has destroyed and obliterated a peasant society, 

(and) tha t has helped in turn to create further ecological wrath on a global scale.”

It is a war unjustifiable by American or international law, unjustifiable by the 

will of the American people. If we speak of war criminals, we m ust speak of the 

executives and stockholders who encouraged and profited from the war, of war 

hawks who blindly led us along a to tally reprehensible path.

But while amnesty ca nnot be take n to mean forgiveness when we speak of those 

who opposed an immoral war, neither should we accept the literal translation 

of its Greek root, amnestia, which is “not remem bering,” or "forgetting.” The 

only thing to be forgotten here is th e punishment of those described during 1972 

congressional hearings by the chairm an of the Subcommittee on Administrative 

Practice and Procedure of the Senate Comm ittee on the Judiciary, Senator 

Edward Kennedy, as "those who see the things we now see, bu t saw them sooner 

and did the only thing they could.” On the other hand, we m ust remember, not 

forget, the lessons of am nesty. Th at is an other way of saying we must remember 

the lessons of the war. It is a war that has tolled tremendous costs upon America 

and its people, nationally and internatio nally . We must remember the lessons 

of th at war, so as not to repeat its mistakes. Amnesty logically follow’s a discussion 

of the rightness and wrongness of th at war, as Senator Kennedy accurately 

observed. In retrospect, the discussion of the rightness and wrongness of the Indo ­

china War is settled. The futility and destructiveness of a decade of struggle and 

55,000 American lives—not to mention unto ld numbers of lives from other 

natio ns—is unchallenged.

Amnesty has precedent, despite a presidential press conference statem ent to 

the contrary on 2 M arch of last year: “If, at the end of the war, we broke every 

preceden t th at this country has had, this will be the first time th at amnesty was 

provided * * * . If we did t hat, we could not have a viable force in the future.”

This statem ent is blatantly wrong on b oth of its counts. Article II, section 2 of 

the Constitution, providing for "Reprieves and Pardons for Offenses against the 

United States—except in the case of Impeachment,” has been invoked thirty 

times by Chief Executives. It first was used by President Washington as early as 

1795 following the Whiskey Rebellion. An interesting twist was provided by 

President Jackson subsequent to the War of 1812, when the above provision was 

conditioned upon the stipulation that amnestied individuals never again enlist 

into the military. It is unlikely that many present-day amnesty recipients would 

find much difficulty with such a stipulation!

In addition to these executive amnesties, seven acts of Congress may be placed 

under the category of amnesty, including the Universal Amnesty Act of 1898 

which provided unconditional amnesty for all remaining rebels of the Civil War. 

We might even stretch the definition of amnesty for the moment and point to 

our aid and “amnesty,” as it were, to enemies after every war in our history. With 

a vast amnesty tradition behind us, can we no t make peace with our own youth 

as well? We can look to the recently elected Labor Party in Australia for a partial 

guide. Immediately upon takin g office, the new government granted unconditional 

amnesty to all of its 9,000 Vietnam-era draft resisters.

Surely with the wealth of precedent of amnesty in this country, an amne sty 

now could not possibly affect the "viable force in the future ” with which the 

President apparen tly was concerned in the above statement. The most recent 

example of United States governmental action resembling an amnesty (we will 

see below th at it was not truly amnesty) was the review board established subsequent to World War II. Obviously that action, following a legally sanctioned 

and "moral” war, did not prevent procurement of men and women for the military thereafter. It logically follows that an act of amnesty at this time could not 

effect similar prese nt-day procurement.

The present Administration, desiring for its private reasons to pain t a picture 

of few in need of an amnesty, distorts the numbers of potential amne sty recipients and suggests all have turned from their country in favor of another 

land. This attempt was shown most clearly in a presidential press conference 

on 31 Jan uary 1973 referencing "those few hundreds who went to Canada or
831

Sweden or someplace else.” The “numbers game” about those in need of an 

amne sty is a popular pasttime for both governmental agencies and those working 

for amnesty, each using figures to advantage. In this submission we will only 

briefly play that game. A careful study of the statistics of any responsible analyst 

leads to the conclusion that those potentially affected by amne sty number in 

the hundreds of thousands. By way of example, during the summer of 1973 

Mr. Byron Pepitone in his capacity of Director of the Selective Service System 

sta ted that 9-12% of draft-aged men were nonregistrants during 1972 (that 

amounts to perhaps 200,090 men during a year of relatively low draft calls)! 

And that takes into consideration neither 7,000 convictions under the Military 

Selective Service Act during the Vietnam era, nor more tha n 10,000 cases still 

pending in the offices of the United States Attorney for alleged draft offenses 

(for a range of charges—a relatively small number relating to nonregistration), 

nor cases not yet referred to the Justice Department—numbering perhaps 2,000. 

Also, we must include approximately 32,000 deserters-at-large (more th an 500,000 

since July, 1906). We must include a half-million veterans with less than an 

Honorable Discharge for their opposition to the war/military who have limited 

rights to employment and other rights and benefits taken for granted by fellow 

veterans. Finally we must take into account a large but unknown number of 

civilian war resisters who possess court convictions and administrative records 

due to their public opposition to the draft/m ilita ry/w ar—barring them from 

many rights and privileges. The numbers clearly are large, and clearly the vast 

majority are within this country. Some chose to leave this country—a relatively 

small percentage—and they surely deserve no blame. They have suffered greatly 

for their beliefs and opposition. The others remain within our borders, if not our 

society: in our jails, courts, stockades; underground; on unemployment lines.

Above we have shown large numbers and diverse categories of Americans in 

need of amnesty. Indirectly of course even larger numbers suffer. We have outlined precedent for am nesty. We have placed amnesty in the larger context of the 

war. But we have not outlined a specific description of what a ju st amnesty must 

be. Affiliates of NCUUA and others differ in one degree or another concerning 

some specifics, bu t together we must insist upon the following as essential to jus t 

amnesty legislation.

A ju st amnesty is a universal amnesty. Th at is, it must encompass all of the 

categories outlined above. It is unreasonable and unfair to att em pt to differentiate 

between them. Each individual acted when s/he felt compelled to do so. An act of 

protest against an immoral and illegal war is precisely that, regardless of time or 

man ner expressed. The difference is merely one of “ timin g.” It is a question of 

equal justic e before the law. Th at being the case, the only possible justification 

for an amnesty other than universal might be one of national interest. Precedent 

shows clearly that an amnesty is prejudicial to neith er natio nal security nor 

interest. A just amnesty must be universal.

At the same time, a jus t amnesty must be unconditional. War objectors were 

not the real criminals during the war in Indochina. Any punitive action implies 

guilt on their part. Resisters make it clear th at they will not accept punitive 

“ strin gs” atta che d to an amnesty. One exile speaks of these strings: “ Partial 

amnesty (an amnesty with “ strin gs”) would be a travesty of justice and would be 

tota lly unacceptable to me and to everyone I know in a position similar to mine.”

If one thinks of these men and women as eagerly waiting at the edge of the 

Canadian border, ultim ately willing to accept some conditions, s/he should consider further comment by this same resister:

“ Most ‘deserters’ and ‘d raft dodgers’ now in Cana da do not intend to return 

to the U.S. to live even if amnesty were granted * * * If amnesty were granted 

* * * I would, of course, avail myself of it to visit friends and relatives but 

probably for no other reason.

Some commentators and legislators suggest case-by-case review for war resisters. 

Review’ boards w’ould be established to grant amnesty to some, to those with 

“ pure” motives; and deny it to others—similar to action subse quent to World 

War II. This line of argument brings forth many problems, which probably are 

insurmountable. The first difficulty lies in judgment of motivation. If psychology 

has tau ght us anything in recen t years, it is the gestalt observation that human 

beings are complex, th at their actions generally are predicated upon a myriad of 

often inseparable motives. This unquestionably is true in the case of those faced 

with the decisions of killing and being killed. How does one draw a line between 

those to be amnestied and those not to be am nestied? And if one atte mp ts to do 

so, does th is not add yet another adv antage to the long list of others for the white, 

middle-classed individual, at the detriment of his less-well-versed counterpart of 

more meager means?
832

The white and middle classed have had all the adv ant age s in relatio n to the 

war and mil itary. Better educated, the y had adv ant age in expressing claims to 

their dra ft boards, with the same adv ant age applicab le to a possible amnesty 

review board. In college and in their place within our society, the y also had more 

access to inform ation on how lega lly to avoid induction. Once in the military, the 

remaining middle classed— prim arily due to education and “ puli’— had more 

access to avoidance of Vietn am duty— or at least found them selves in safer roles 

behind a desk or behind higher rank. Fina lly, when first learn ing abo ut milita ry 

service and the draft, the disenfranchised often saw the milita ry as a wa y out of 

the social situation forced upon them. It was only when in the Arm ed Forces th at 

the y learned the actu alities of tha t life. Th ey learned at the same tim e tha t the 

milita ry is one job in our soci ety which the y could not quit . Some atte mp ted legal 

discharges, which are few and difficult to obtain. Th at route left many of those 

fortun ate to obtain release with most unfo rtunate discharges less than that of an 

Honorable Discharge . Others found no recourse bu t to either confront directly 

with overt actio n the system in which the y found them selves; or the y simp ly 

walked away. Sta tist ics presented by others bear out the discriminatory class 

bias asserted here.

Re vie w boards serve to perp etuate class discrim ination. Bu t even were this not 

the case, review boards are tot ally unrealistic. An amn esty, as we have shown, 

must affect hundreds of thousands of men and women. Financ iall y that is an 

impra cticality. Tem porarally it is an impossibility. The review board subseq uent 

to World War II required eightee n months to make a curso ry exam ination of 

15,000 cases. Even if mor ally justifiable, sheer numbers makes of a review board 

at this time a hopeless nightm are.

A final comment ma y be made before leav ing discussion of review boards. 

American trad ition demands judgment by peers. Who would jud ge those who, at 

grea t personal sacrifice, resisted an immoral war? It would be absurd to suggest 

the same prag matic individu als who condemned the bodies and lives of the 

resisters originally in the perp etuation of an immoral and illegal war. Who then 

would judge?

Cle arly we must have univ ersa l and unconditional amn esty, with out case -bycase review for all war resisters. Grounds most fre quently presented in summation 

for such a position are two-fold: the men and women inv olved are guilty of no 

crime; and now, belatedly, it is time to blind togeth er a badly-d ivid ed nation to 

build for a common, prosperous and hap py futu re wi th un ity and solidarity. We 

agree wit h many observe rs that some of the best talent this cou nty has produced 

during th e past ten years is being laid waste. Some of this ta len t canno t be regained. 

We must act swiftly before even more is lost.

Sponsors of many bills pres ently before Congress offer testim ony at these hearings. While some affiliated members of N CU U A poin t to certa in current legislation as reas onab ly good rall ying points, N CU U A endorses none of them in their 

present forms. None of the proposals are tru ly univ ersal; most do not even meet 

the test of being uncon dition al. Some even suggest the estab lishmen t of a review 

board. We conclude our stateme nt, in cont rast with present legisla tion, by s peak ­

ing unequ ivo cally for the introduction and enactment of measures for universal 

and unconditional a mne sty for all war resisters, wit hout review of individu al cases.

U niv er sity of Notr e D ame,

Notre Damet

 Ind., March 2, 1974-

Hen. R ob er t W. K as te nmei er ,

Chairman, Subcommittee on Courts, Civil Liberties, and the Admin istratio n of

Jus tice , House of Representatives, Washington, D.C.

D ear C ongre ssm an K as te nmei er : I write to lend my support to legislation

that would gra nt universal and unconditional amn esty. I res pec tfully request 

that a cop y of this letter be included in the record of the hearings of the Subcomm ittee on Courts, Civ il Liber ties, and the Adm inistration of Justice cf the 

House C omm ittee on the Jud iciary.

Th e deep scars of the Vietnam War remain with us. We have ne t overcome the 

frus tration, division and disuni ty tha t afflicted our cou ntry as never before since 

the Civil War. The Vietnam War produced a clea vag e of the you ng and the old 

a cle ava ge between th ose who saw7

 the war as an obscenity and those of the milita ry 

indu stria l esta blishme nt and the gove rnm ent who prosecuted the war, with 

enthusiasm at times. There was perhaps never before in our history such division 

betwe en the milita ry and the civilian .

Th e havoc caused b y the war is gruesome. Fifty tho usand young men l ost their 

live s and another hal f million you ng Americans will bear the scars cf the war on
833

the ir bodies. We spen t $130 billion to dev astate the earth and its people and 

millions of Vietnamese—North and South—and their neighbors— Laotians and 

Cambodians—were killed and maimed and wounded.

Less tangible havoc also was caused by the war. There never was a time when 

the most sensitive people in our society, those morally sensitive to values and to 

what is right, have been more alienate d to their own country, many to the point 

of leaving it. One of the unfinished par ts of the business th at faces us today is to 

stra in ourselves a little to bring back into the fullness of the society in which we 

live in America those who have been tota lly alineated from it, simply because 

they could not acc ept its values in the time of war.

There are those in prison today because they stood up and said, “I will not 

serve in such an immoral conflict.” Some 70,000 men, more th an the number killed 

in Vietnam, went to places like Canada and Sweden because they felt that they 

could not live in this country if it meant th at they would have to tak e part in 

something they did not believe in. I thin k t ha t it has been of great moral value to 

this country th at so many young people have been willing to make extreme 

sacrifices—to go to jail or go abroad—simply because they wanted to show th at 

they really believed something so deeply th at the y would pu t the ir freedom and 

their futures on the line for it. I think the country should cherish people like this. 

I thin k th at there is so much good will and so much virtue in all of this th at we 

should act firmly to bring ab out a reconciliation.

While unconditional amnesty may create some problems because of the wide 

divergence in the circumstances and motivation of the many different kinds of 

personal action s involved, I believe that the situation th at created our difficulties 

today was so horrendous that it is best to get it totally behind us. Inequities that 

migh t be occasioned by total and unconditional amnesty would certa inly be 

matched by other numerous inequities in the present situation. Our recent past 

does not do us proud, but I think th at we must look to the future with love, 

with hope, with courage and with dedication. Great inequities have been committe d, and it is likely that they can be removed only by great generosity and 

magnanimity.

Sincerely,

Rev. T heodore M. II esburgh, C.S.C.,

President.

The Episcopal Church in Western Kansas,

Salina, Kans., March 5, 1974.

Hon. R obert K astenmeier,

Chairman, Subcommittee on Courts, Civil Liberties a nd the Ad min istratio n of Justice,

House Committee on the Ju diciary, House Office Buildin g, Washington, D.C.

Dear Congressman Kasten meier: I have learned th at your subcommittee

on Courts, Civil Liberties and the Administration of Justice expects to hold 

hearings on the question of amnesty for war resisters on March 7 and 8. I would 

very much desire opportu nity to testify before your subcommittee, bu t I am 

prevented by distance and schedule from doing so and for th at reason I would 

ask you to accept my brief statement as contained in the body of this letter.

I favor a general amnesty for all war resisters opposed to the Viet Nam war 

whether imprisoned, escaped from prison or the armed forces or having evaded 

military service by any means such as leaving the country. I believe such amnesty 

should be grante d by the President with the approval and backing of th e Congress 

and th at it should go into effect a t the earliest possible moment.

Without castin g any reflection upon those who served in the Armed Forces in 

th at war, I believe that those who refused to serve have made an app iopriate 

witness to the world on behalf of the United States and with the conclusion of the 

war, there is no longer reason to punish them or require th at they live in fear of 

or disregard of such punishments.

I am aware th at many of our citizens are willing to consider am nesty for persons 

who were “conscientiously” opposed to the war, bu t somehow feel tha t a general 

amnesty would allow many to be forgiven who were cowards or otherwise were 

unwilling to serve th eir country. I am quite clear th at many of those who entered 

the Armed Forces and did serve could hardly be considered as having done this 

“conscientiously” so I cannot und erstand this demand for a good conscience 

always on the p art of those who have resisted. In addition to this, the inte rminable 

number of individual hearings and judgments which would be req uired u nder a ny 

amnesty plan other tha n a general amnesty would seem to defea t the whole concept of amnesty as I understan d it.

For these reasons, I am enthusiastically in favor of a general amnesty, and I 

would hope and pray that your subcommittee will find it in your judgment to
834

make such a recommendation to the House Committee on the Judiciary which 

will in turn report out a favorable bill on general amnesty to the Congress as a 

whole in the very near future.

Thank you indeed for this opportu nity to be in touch with you and the subcommittee.

Sincerely yours,

Rt. Rev. William Davidson,

Bishop of Western Kansas.

Daytona Beach, Fla., March 7, 1974.

Hon. R obert W. K astenmeier,

Chairman, Subcommittee on Courts of the Judiciary Committee, House of Representatives, Washington, D.C.

Sir : On the matter of extending amnesty to those citizens of the I’.S.A. who 

have evaded draft into or deserted from the armed services of the U.S.A. for 

whatever reason.

Never! They made their bed, now' let them lie in it.

Some have called them noble for acting in accord with their conscience and 

refusing to be involved in or continuing in an unjust war. Others have called them 

traitors and cowards.

Neither the appellation nor the reason for their action in evading or deserting 

is im portant.

Our society, to continue, must be governed by certain rules of conduct, which, 

if violated, subject the offender to specific punishment. Without such rules, 

society fails, and the survival of the fittest takes over.

Most of us need the protection of those rules.

The subject individuals knowinglj" exercised th eir right to take an action which 

was subject to specific consequences. To re-enter our society, they must first be 

subject to the punishment specified for their action. Society also has rights.

To allow these individuals to emerge from their havens, eithe r here or abroad, 

and rejoin our society with out being punished in accordance with the rules, is to 

tea r the very fabric upon which our society is based. In my opinion, the meeting 

of this committee to hear pleas and appeals for amnesty is a rent in the fabric 

which will la ter be regretted.

I do not speak for any group, but I have talk ed with many men who have 

served this country in time of war. All have suffered from that service—separation 

from loved ones,' privation, living wilder regimentation, subject to, and being 

(in some cases) wounded and maimed. All have been vehemently opposed to 

even the consideration of amnesty.

For a community or nation to form and survive, a code to live by must be 

promulgated, agreed to, and then enforced. “ Law and Order.”

In the past, as now, influence, emotionalism, manipulation, technicalities, 

subtleties of interpretation and delay have been used to enable the violator of 

the law to escape punishment. Proponents of amnesty are using, and will continue 

to use them all.

Some tw enty million (20,000,000) citizens have served in the armed forces and 

the majo rity of them were draftees.

Probably, most of the draftees had valid reasons for not wanting to be conscripted into the armed services, but they accepted it because the draft provisions 

were part of our law and the punishment provisions were considered to be enforceable. Were th ey naive or misled?

The entire V.A. stru cture was created to assist and continues to assist the 

returned veteran population by a greatful nation. Why?

Wars have been th e history of mankind and there is no reason to believe tha t the 

U.S. will not be involved in another.

Of w hat effect would the dra ft law be in speedily gathering an armed force if 

past history showed th at draft evaders were lightly punished or granted exemption 

from punishment b y the very body which created the law.

Even the consideration of extending amne sty is a slap in the face to every 

veteran, a dishonoring of all the service dead, and an encouragement to every 

pacifist and subversive ready and waiting to give this country away or to assist 

in its conversion to another ideology.

Please include this letter in the Committee’s record of th e hearing.

Very tu rly yours,

John II. Burgess,

Past National Commander, 

Milita ry Order of the Pur ple Heart of the U.S .A., Inc.
Be it resolved that th e Senate of Priests of Saint Paul and Minneapolis instruct 

the Chairman of the Justice and Peace Committee of the Senate to appo int a 

delegate (s) to accompany, in the name of the Senate, the Minnesotans for Amnesty Committee in their meetings with Congressmen and Senators.

Be it resolved th at th e Senate of Priests of Saint Patil and Minneapolis endorse 

the petition of Natio nal Clergy and Laity Concerned on Amnesty.

Passed by the Senate of Priests of Saint Paul and Minneapolis in the above 

form on August 1G, 1973.

Am nest y P et it io n

For all those whose opposition to the war in Indochina brou ght them into 

conflict with the laws of the Government, we ask amnesty. We call upon the 

Congress to enac t amnesty in its legislative autho rity to determine what is the 

law. We call upon the President to declare amnesty by his executive authority.

Amnesty is not pardon. In judicial trad ition, amnesty forgets or blots out the 

offense for the sake of reconciliation and a new beginning. Let us remember in 

proclaiming amne sty we affirm our trad itio n of defense of conscience, the dut y 

of individuals to judge for themselves what is right in the face of conflicting 

duties, and the foundation of our society on higher moral law.

This war hits broug ht no heroes bu t only victims. Therefore let us not be vindictive toward one group to assuage the suffering of others. While we are making 

peace with our enemies, let us be reconciled among ourselves.

We may be brou ght together again only if redress is provided for those who 

had to face jail or exile for their convictions. Let all those who are convicted be 

set free and all those facing prosecution or who might be prosecuted be immunized 

from furthe r jeopardy and all records wiped clean. For all deserters, dra ft violators, 

and those accused of civilian acts of resistance let there be a new beginning.

Let us amnesty also all those who, because of the war, were brought into extenuating circumstances in which the y breached civilian or military regulations 

or were denied the full protections of due process. For the half million veterans 

who are now being punished for life by other-th an-honorable discharges, let 

their records be corrected to make them eligible for benefits th at would facilitate 

a more hopeful future.

Religious trad ition teaches th at “you should not hate your brother in vour 

heart, but you shall reason with your neighbor, lest you bear sin because of him. 

You shall not take vengeance or bear any grudges against the sons of your own 

people . . . ”

We cann ot restore to life our dead soldiers, nor undo the hur ts and wounds of 

others. We c annot undo the dev asta tion of the lands and people of Indochina. 

We can repe nt and work for post-war healing. An unconditional amnesty would 

free us for a responsible and serious effort to rebuild our divided people.

Copies of this petition are available, nt no charge, from Clergy and Laity 

Concerned. When you send in your completed petition, if a t all possible, we ask 

tha t you enclose a check for $.» to $10 so we can escalate our drive for amn esty
836

with ads in journals and publication of amnesty material, and facilitate work in 

local communities on this issue.

Return to

Clergy & Laity Concerned 

Amnesty Program 

235 E. 49th St.

N.Y., N.Y. 10017

Long Island Presbyterian Peace Fellowship,

Selden, N.Y ., March 6, 1974-

William Dixon,

Subcommittee on Courts Civil Liberties, and the Admin istratio n of Justice, Ray bur n

House Off ice Building , Washington, D.C.

Dear Mr. Dixon: Please enter into the records of the hearings of your committee concerning am nesty our plea that amnesty be gra nted.

Ample evidence has been presented already th at the justifications for our involvement in Viet Nam were contrived (e.g., The Gulf of Tonken incident, et al.) 

Those young men caught in the draft, who felt t ha t they an d th e country had been 

“h ad” protested in the only way possible to them—resisting the draft. Resisting 

by imprisonment or by exile.

It hurts us yet to go back over that old ground. Therefore, we feel th at it is 

time for a “ freeing” “generous” gesture b y the Congress or the President. Declare 

amnesty in as open, and non-condescending a way as possible.

While we personally believe the re ought to be an apology extended we recognize 

the small likelihood of th at being done. Let there be amnesty!

Sincerely,

Norman W. Minard,

President.

AMVETS,

Washington, D.C., March 7, 1974.

Hon. Robert W. Kastenmeier,

Chairman of the Subcommittee on Civil Liberties and. Admin istratio n of Justice,

Rayburn House Office Building, Washington, D.C.

Dear Chairman Kasten meier: With the end of the role of United States

com bata nt forces in Vietnam, the question of amnesty has again stirred the 

emotion of the American public. AMVET represents a vast segment of American 

veterans ranging from those who served in World War II, including those young 

veterans who are returning from the Southeast Asian conflict.

As Nation al Commander of AMVETS, I must reiterate our vehem ent opposition to the consideration of amnesty for those deserters and draft dodgers who 

left this nation and those who went underground in this country. It is a known fact 

th at those Americans who served in this nation’s Armed Forces during th e Southeast Asian conflict received hardly any word of praise nor were they se nt off with 

marching parades or any fanfare. Due to the unpopularity of the war, these 

veterans returned to America inconspicious without any ticker-tape parades to 

greet them. Over 800,000 Americans returned home disabled, while 50,000 paid 

the ultimate sacrifice. In the tradition of this organization, I will reaffirm our 

support of the American way of life, and, therefore, I canno t supp ort any legislation th at would grant amnesty to those individuals who deserted their country.

We feel th at amnesty would serve as a harsh slap in the face to those loyal 

Americans who served this nation in time of need.

Yours in patrio tism,

Berge Avadanian, National Commander.

Statement of R oney F. Hartley, National Service and Legislative

Director, AMVETS (American Veterans of World War II, Korea

and Vietnam)

Mr. Chairman and Members of this Subcommittee on Civil Liberties and

Administration of Justice.

We of AMVETS wish to tha nk you for this opportunity to present the views of 

our organization as it relates to Amnesty.
837

On March 29, 1974, America will observe a day of honor for the Vietnam 

Veteran. Th at day marks the anniversary of the last United States Combatant 

to leave Vietnam.

AM VETS realizes th at the war in Southeast Asia was this Nation’s most 

controversial conflict, with the bru nt of its unpopularity being carried by those 

men and women who served in America’s Armed Forces during those troubled 

times.

We would like to point out that during the Vietnam conflict, over 50,000 brave 

Americans paid the ultimate sacrifice for their beliefs in freedom and loyalty to 

their country, while those individuals who deserted this country shouted insults 

and burned the American flag.

While the deserters and draft dodgers resided safely in other countries, over 

800,000 casualties were returning to America to face the long road back to reha ­

bilitation. These disabled veterans did not desert, they served their country 

proudly and honorably.

We must not tarnish the memory of those patriotic Americans who died for 

the American principles, by gran ting amnesty to those radicals who refused to 

serve their country.

The deserters and draft dodgers turned their backs on America and left this 

country by their own accord, fully realizing that it was their inheren t obligation 

to protect, defend, preserve and uphold the Constitution of the United States, 

not only for this generation but for all f uture generations of Americans.

It is in this respect th at AMVETS firmly opposes any Legislation that would 

gra nt amne sty to those individuals who shirked their legal and moral obligations 

to serve their country.

In conclusion, we would like to again tha nk this Committee for allowing the 

AMVETS organization to voice our immediate concern in this ma tte r of amnesty.

Gladstone, Mich., March 6, 1974.

Representative R obert Kastenmeier,

House Office Building,

Washington, D.C.

Dear Sir : 1 am in favor of unconditional amnesty.

The only support 1 would give for conditional amnesty would be if those 

persons who “dodged” the dra ft by hiding out in the National Guard; those 

with studen t deferments; occupational deferments; physical deferments, etc. 

would be required to serve some form of alter nate service.

It would be only fair to state th at many of the above deferm ents were legitimate, bu t at the same time a large percentage of them were used to avoid the 

draft.

In closing, for what ever it means my son Charles L. Stewart, Jr. was KIA 

31 Oct. 1972 in VietNam. Also I served as a Combat Infantrym an in W W 2. 

Sincerely,

Charles L. Stewart, Sr.

P.S.—I have been in favor of unconditional amnesty for some years, even 

before my son was killed. If you wish to contact my congressman Rep. Philip 

Itup pe his office should confirm th at 1 have been for amnesty for four or five 

years at least.

Grandview, Tenn.,

February 26, 1974.

Mr. William Dixon

Counsel, Judiciary Committee,

Rayburn House Office Building,

Washington, D.C.

Dear Mr. Dixo n: Can Americans accept the fact th at the war resisters m ight 

have been right? The war in Southeast Asia still goes on with Americans still 

stationed in Thailand in order to keep the bombers flying.

My son was killed in Vietnam. He died in vain. I am a World War II veteran ; 

I served gladly to rid the world of dictators, but I will always regret th at I didn’t 

help my son go to Canada or to prison.

President Nixon is calling for March 29 as POW day. Why doesn’t he proclaim 

Amnesty Day for the war resisters who helped to awaken America?

I support amn esty for the Americans who are in exile or in prison for refusing 

to serve in the Vietnam war.

Peace. Zelia M. J ensen.
838

R esolution on Amnesty foe War Resistance Passed by the Village

I ndependent Democrats, December 13, 1973

Resolved, That VID declare its supp ort for all those, at home and abroad, who 

have resisted participation in the unjust and unconstitutional war in Vietnam, 

whether by refusing induction, deserting the armed forces, emigrating to avoid 

conscription, or by demonstrating their resistance in any non-violent way.

That VID urge that amnesty be declared for all those who face prosecution for 

their resistance; th at those who are presently in prison or military stockades, for 

their refusal to participate in the Vietnam war, be released by executive action; 

that legal proceedings pending against war resisters be dropped and court records 

expunged; th at those who deserted or were dishonorably discharged for engaging 

in anti-war activities be granted honorable discharges; be it further

Resolved, The VID form an ad hoc comm ittee to implement this resolution 

with an ongoing program to focus public atte ntion on the urgent need for legislation on this issue; to inform ourselves and the public a t large about the proposals 

that have been made in this area and to help develop supp ort for this position.

Congress of the United States,

House of Representatives, 

Washington, D.C., March 19, 1974- lion. Peter W. Rodino, Jr.,

Chairman, House J udiciary Committee, Rayburn Washington, D.C.

Dear Mr. Chairman: Enclosed is a copy of a letter written by Mr. Thomas

Cave of Virginia Beach, Virginia. Mr. Cave directs his remarks to the issue of 

amnesty. I would certainly appreciate it if his comments could be made a part of 

your official records.

Thank you for your assistance in this matter.

With best wishes, 1 remain.

Sincerely,

G. William Whitehurst.

Enclosure

Virginia Beach, Va.,

March 11, 1974. Th F, V IR G IN IN 1A N- P l LOT,

Norfolk, Va.

Dear Sir: Your editorial re amnesty in today’s pa per requires, I think, a reasoned attem pt to reply in order to co unteract the damage it could do.

Desertion and draft evasion were not unique to the Viet-Nam conflict. “Protesting with your feet” has been the hallmark of the Summer Soldier and the 

Sunshine Patriot ever since “the Assyrians came down from the North like the 

wolf on the fold.” Article 136 of the Code of Hamm urabi, put into effect over 

2,000 years before the birth of Christ, provides punishment for one who deserts 

his city. Subsequent codifications of the law such as the Code of Justinian , the 

Code Orlean and the Code Napolean contain such similar provisions. We can 

encounter in the states along the Eastern seaboard many descendants of draft 

dodgers and deserters from the British and Prussian armies who were not particularly, morally convinced in the rightness of their king’s cause against the 

rebellious colonials. Therefore, let us say to those young men who stood by their 

convictions and (led to another country rath er than to stay behind and obey the 

law of this one—“ Go, and no ill-will follows you. Become a good citizen of Canada 

or Sweden or wherever and may Peace and understa nding be yours.”

Amnesty on the other hand presents a different question as you so ably point 

out. By legal definition, generally, it is general pardon by the sovereign author ity 

for crimes committed against the state—usually political. Specifically, desertion 

and draft evasion have been made sta tut ory crimes by the sovereign body of 

our country, the Congress of the United States. We are either a nation of Law 

or a nation of Men a nd we canno t be both. To retroactively apply am nesty across 

the board would be equivalent, roughly, to saying to the thief who stole your 

money, or the arsonist who burned your house or the murderer who killed your 

brother “ Allee Alice All’s in free.”

Should those who have run away with good motive and from the stirrings of 

social conscience desire to return to our country and once iigain assume the rights 

aud burdens of citizenship, then let them present their matters of extenuation
S39

and mitiga tion before the bar of justice. A general amne sty is not the way, for 

not only would it insult and dishonor the citizens of America who since 1775 

stayed and carried the burdens of citizenship, obeying the law of the land no 

ma tter how much they may have personnally disagreed with it, but it would 

also set a precedent t ha t in future crises could be used to crumble the basic concept 

of the citizen army. If every soldier could decide where and when and against 

whom he elected to fight, knowing that eventually his decision would be ratified 

by a pusillanimous government, then no citadel would stan d and no defense 

would ever effectively defend. Opposition to a general amnesty is not vindictiveness; it is the lesson? of the 

past and concern for the future; it is awareness of the fact that hand in hand 

with rights goes its concomitant, responsibility. Your editorial advocates neu ­

tralism on the issue so as to move the country ahead. Need you be reminded 

that nothing moves, ahead or back, when it is in neutral.

Sincerely yours,

T ho mas H arrin g to n C a ve. 

[F ro m th e V ir gi ni an -P ilot , Mar. 11, 197 4]

A m nes ty I s M ovin g O n

Amnesty is an emotional issue and is going to remain so until the nation’s 

Vietnam War wounds are fully healed. That is going to take time.

Nevertheless, the hearings on the amnesty bills before the House of Representatives are useful. For talking about amnesty contributes to the healing process.

Consider the distinction, for instance, in saying tha t amnesty should be grante d 

to war resisters, with connotations of martyrd om and nobility, and saying that 

amnesty should not be granted to draft-dodgers, with connotations of cowardice 

and criminality. Yet the “ draft-dodgers” and the “ war resisters” are the same.

It is difficult to be precise on the subject. Even the extent of the problem is 

open to question. Those who favor a blank et amne sty to deserters, dra ft violators, 

exiles, and all who received less tha n honorable discharges during the Vietnam 

War are talking of hundreds of thousands of veteran s and war resisters.

By contrast, the Defense Department minimizes the problem. By its definition, there are only a few thousand fugitives from justic e to be considered. Although more than half a million men deserted during the war, all but 2S.000 

retu rned to the control of the military and had their cases settled, according to 

the Pentagon, Of the 4,206 GIs who deserted to foreign countries, it says, 2,SOS 

remain there. According to th e figures th at Walter II. Morse, general counsel of the Selective 

Service System, supplied to a House subcommittee last week, 19,271 draft 

evaders were indicted and 7,932 convicted. Half got jail sentences and half were 

placed on probation , while ju st 134 remain in prison. Furtherm ore, Mr. Morse said, there are 5,100 draft evaders under indic tmen t 

and another 3,OSO being investigated by the FBI. “in sum ,” he said, “we are 

speaking of a maximum number of less than 17,000 violators who could be affected 

by a blanket or general amnesty, which amounts to less than 1 percent of the 

tota l number of indicted men during the Vietnam War.” But, of course, the numbers game is irrelevant to amnesty as a moral question— 

and tha t is the emotional question. The Adm inistration’s position, reflecting Mr. Nixon’s views, is against amnesty, 

period. “To gra nt what these few thousand deserters demand would be to dishonor those millions who served their country with honor,” the President said 

last March. Th at is still the White House view. Furthermore, the White House now says th at amnesty is a Presidential prerogative, and argues Congress does not have the power to grant amnesty by 

legislation. While the power of the President to grant amn estv is unquestioned, 

the argu men t that his is th e exclusive power seems unsound. The argu men t is a new one and constitutionally unclear. But logic suggests that if Congress has the 

power to require a young man to serve in the armed forces, it also has the power to 

excuse his refusal to serve. As a matter of practical politics, Congress is not likely to do so yet. Amnesty 

is not politically popular. (According to a 1972 poll, it is favored by 36 percent, 

opposed by 60 percent.) And it is the kind of question where there are more votes 

to be lost tha n won. If one is making predictions, amnesty is an idea whose time 

hasn’t come.
840

Bu t it is inevitable, or so history tells us. Acts of amnesty always follow wars. 

“Never ” is a word history mocks.

Amnesty isn’t a welcome home. It isn’t a confession that the war was wrong. 

It isn ’t even forgetting. It is ju st moving on, to express it in neutral terms. The 

Un ited States is moving on and it is big enough to forgive. Maybe not now. But 

in tim e there will be amnesty for those who fled the Vietnam War.

Amnesty

San Fernando Friends M eeting on this date (2/17/74) approves and recommends 

to Friends everywhere and to our representatives in congress the following minute 

on amnesty from the Philadelphia Yearly Meeting of the Religious Society of 

Friends:

“In the conflict between the rights of conscience and the Selective Service and 

military systems, we reaffirm our belief in the Peace Testimony which calls for 

opposition to all wars an d conscription. Although the final burden of decision about 

the ex tent of resistance to war rests with each in dividual, we declare t hat our first 

allegiance is to the God of love. If this allegiance is challenged by the demands of 

state, we must obey God r ath er than state. The violators of the Selective Service 

Regulations or the Universal Code of Military Justice, in exile, in hiding or in 

prison, deserters from the m ilitary, soldiers released with less tha n honorable discharges, and resisters with prison records, include those who, by reason of conscience, refused to par ticipate in the violence inherent in imposing this nation’s 

will upon an alien culture.

“In war there are no victors, only victims. Participants and non-participants 

alike suffer the emotional damage of disunity and discord. After the most divisive 

war in our history, we must understand t ha t our overriding need is for reconciliation. Amnesty, we believe, is a first step towards reconciliation. Amnesty is 

‘legal oblivion’ as distinction from ‘pardon’. It would erase injustices of the past 

and thus help us face the futu re without bitterness.

M IN U TE

“Philadelphia Yearly Meeting of the Religious Society of Friends (Quakers) 

urges the President and the Congress of the United States:

1. To bring about a general and unconditional amnesty for all who disobeyed 

laws and orders which, if observed, would have involved them in the war 

system during the Indochina War.

2. To expunge their criminal records.

3. To restore their civil liberties.

4. To drop all present and futu re prosecutions and to free those currently 

under legal restraint.

“If this nation is to regain a sense of u nity and common pupose, nothing less 

will do.”

Note.—The above statem ent was adopted b y the Southern California Quarterly 

Meeting of the Society of Friends on February 23, 1974. We would like it submitted for the record of the hearings on am nesty sponsored by the Subcomm ittee 

on the Courts, Administration of Justic e and Civil Liberties of the House Committee on the Judiciary .

Thank you.

Bernard L. Mathews.

Board of Church & Society,

Southern New England Conference,

United Methodist Church,

March 6, 1974- Mr. Bill Dixon, Esq.,

House Judiciary Committee,

Washington, D.C.

Dear Mr. Dixon: At the suggestion of Member of Congress, Robert F. Drinan, enclosed please find statements from the Southern New England Conference Board of Church and Society, the National Board of Church and Society 

and a paper by George R. Lucas, jr ., entitled “Amnesty: Case of the Prodigal 

Son?” It is my understa nding t ha t these, toge ther with this letter, can be included 

in the minutes of the amnesty hearings now being held by the subcommittee of 

the House Judiciary Committee.
841

The United Methodist Church is actively working for a ministry of reconciliation, not only for dra ft resisters and deserters; but a reconciliation in the hearts of 

the American people who are to be counted among the victims of the war in 

Indo-China. As each day continues to bring death and destruction to the people 

living there—in spite of the supposed ceasefire—it is essential that we bring back 

to America those young men with the morality and courage to say “no” to killing. 

Perhaps if we can wipe the slate clean for them, it will be a new beginning for us as a 

natio n. Only then will we see new possibilities for our mission as servant to the 

world.

Sincerely yours,

P a tric ia J. C all an, 

Chairperson, Board of Church and Society. Enclosures.

R eso lu tio n on Am nes ty

Whereas the Board of Church and Society of the Southern New England 

Annua! Conference has long advocated the cessation of all military activity in 

Indo -China and the removal of all military personnel from th at war-torn region; 

and

Whereas the negotiated cease-fire for Vietnam has enabled th e return of prisoners 

of war and the disengagement of m ilitary operations from a tragic and immoral 

destruction of life and pro perty; and

Whereas we all share the guilt and stand under the Judgment and Grace of 

God; and

Whereas a call to obedience to individual conscience being central to an consistent with the scriptural teachings of the Church of Jesus Christ and the Discipline of the U nited Methodist Church: Therefore, be it

Resolved, That the Southern New England Annual Conference of the United 

Methodist Church petition the President of the United States and each member of 

the congressional delegation from the States of Connecticut, Massachusetts and 

Rhode Island to grant a general amnesty to all who for reasons of conscience dissented from military conscription and to all military personnel accused and/or 

convicted of refusing to serve during the years of this cou ntry’s participatio n in 

the War in Indo-China.

Adopted June 7-10, 1973; Southern New England Annual Conference, meeting 

in regular session at Mount Holyoke College, Hadley, Massachusetts.

Sta te m e n t on t h e C h urch in th e P ost Vie tna m E r a : M in is t r y , Am nest y, an d

R ec o n c il ia tio n

The war in Southeast Asia has placed new demands upon citizens of the United 

State s. All persons have been affected, many permanently, bv the war.

Cessation of direct military involvement has not ended these consequences. 

The church must now move in directions which minister to all persons to whom 

the hu rt remains. Needed ministries include th e following emphases:

M IN IS TR Y TO T H E VIC TI M S O F TH E WAR

The cost in human loss of life and perm anent disability cannot be measured 

statistically. This is true for all peoples involved—Indochinese, American and 

others. The cost is profound: whole families have disappeared; entire communities 

have been destroyed; children are withou t parents; historic, cultural traditions 

have been torn apart; political prisoner patterns continue to scar individual and 

corporate life. Family members who survive in all countries affected by the war 

can identify with these personal tragedies. These persons deserve every assistance 

a compassionate church can provide. The church has an immediate ministry to 

provide pastoral care and to secure other essential service for all such persons 

and their families through United Methodist personnel and cooperation with 

other churches and responsible agencies.

M IN IS TRY TO U .S . V ETER A N S AN D T H E IR F A M IL IE S

The cost of. the war in Vietnam involves U.S. citizens both direc tly and indirectly. Those who served in U.S. military units faced circumstances and sentiments dissimilar to armed forces personnel at any other time in our history. The 

war, which never had full supp ort increasingly became unpopular. Those retu rn31-658—74---- 55
842

ing we re no t received as her oes. Tho us an ds live in vet er an s ho sp ita ls or go 

th ro ug h life severel.v ha nd icap pe d. Hun dr ed s o f th ou sa nd s received less -tha nho no ra bl e dis charg es, m an y unj us tly. M an y foun d diffi cu lty in re en te ring soc iet y. 

Em ot iona l stress c on tin ue s to t hre at en m an y of thes e perso ns.

All co ng re ga tio ns a nd chu rc h lead ers mus t be re ad y to offer ser vice s a nd facilities 

for f am ily an d ve te ra n gr ou ps a nd a ge ncies w hic h seek t o a llev ia te t he se p roblem s. 

M IN IS TR Y IN CASE S OF LEG A L JE O PA R D Y

We be lie ve th at ge nu ine reco nc ili ation de man ds a br oad an d ge ne ral am ne sty, 

w itho ut qu alifi ca tio ns or co nd iti on s, for all who ar e in legal je opar dy or unde r 

leg al dis ad va nta ge be ca use of th e war in Sou th ea st Asia . Go d alon e know s wha t 

fin all y de te rm in es th e ac tio ns of hu m an being s, an d all of us kn ow th a t few of 

us do an yth in g for one rea so n alo ne. Th ere fore, we feel it un wise to att em p t to 

ju dg e th e mot ives of th os e to be giv en am ne sty, ju st as we do not pr es um e to 

ju dg e th e motives of thos e who se rv ed in th e m ilitar y. We do not dish on or bu t 

re sp ec t th e conscie nces o f th os e wh o foug ht an d died. We see am ne st y, no t as a 

m att er of for giv eness , but as one st ep to war d th e reco nc ili ation of th e so ciety . 

ST A TEM EN T ON T H E CH URCH IN TH E POST V IE TN A M ER A

Th e ch ur ch ha s a m aj or re sp on sibi lity to in it ia te or join effo rts to secu re am ­

ne st y an d re stor e full civil lib ertie s fo r'all su ch perso ns who su ffered du ring th e 

Vietnam er a who shou ld no t be sc ar re d for life.

Eac h m em be r of The U nited M et hodis t Chu rc h is ch alleng ed to ex press th e 

tran sf or m in g powe r of Chr ist-l ike lov e th ro ug h his or he r co m m itm en t to offer 

under st an din g an d reco nc ili ation to all perso ns, who ha ve be en affecte d by th e 

trag ic co nseq ue nc es of th e wa r, in or de r th a t th e he aling of a di vi de d so ciety 

m ay begin .

App rove d by th e Boa rd o f Chu rc h an d So cie ty, The U nited M et hodis t Chu rc h, 

at its Ann ual M ee tin g in W as hi ng ton, D.C ., O ctob er IS—21, 1973. Vote: 44 for, 

6 ag ai ns t, 2 ab st en tion s.

A m n e st y : C as e of th e P rodig al S o n?— An E x eg etic a l Stu dy

(B y Ge org e R . Lu cas, Jr ., G arr ett Th eolog ica l Se min ary, Evan st on, 111.) 

(F ro m T o d a y ’s M in is tr y, A pr il 19741

The qu es tio ns of both ou r in di vi du al att it u d es an d nat io nal po lic y to war ds 

dra ft re sister s we re topics of liv ely deb at e in m an y U nited M et ho di st an nu al 

co nferen ce s du ring th e su m m er of 1973. Alth ou gh oth er urg en t na tion al an d 

in te rn at io nal po litical de ve lopm en ts ha ve te m po ra rily su bm er ge d th is de ba te, 

1974 will ce rtai nl y witne ss a rene wal of th e co nt ro ve rsy. Fo r in sp ite of cla im s to 

th e co n tr ary ,1

 th e issue of am nes ty hau nts bot h indi vi du al an d na tiona l co nsc ienc es: it will no t be igno red or pa ssed over, bu t will em erge one da y fro m th e 

sh ad ow s of ou r po litical aw aren ess to de m an d full an d final reso lutio n.

In deb at in g t he a m nes ty issue with in th e ch urch , th e sc ri ptu ra l te xt th a t see ms 

to come m os t re ad ily to min d is th e pa ra bl e of th e Prod igal So n (L uk e 15 :11 -24). 

In te re st in gly en ou gh , th e pa ra bl e ha s been em pl oy ed by opp on en ts an d pro ­

po ne nt s of am ne st y ali ke to ju st if y th ei r re sp ec tiv e po sitio ns . Pro po ne nt s of 

“ un co nd itio nal ” am nes ty nat ura ll y stre ss th e “ un co nd itio na l forg iven ess” by 

th e fa th er of th e e rr a n t'so n as th e per tinen t les son fo r th eir view po int, wh ile 

ad vo ca te s of “co nd itio na l” am nes ty an d outr ig ht op po ne nt s of th e m ea su re cite 

th e “re pen ta nce ” of th e so n as th e im port ant co nd iti on of th e pa ra bl e.

Th is si tu at io n is b u t an oth er m an ifes ta tion of th e “ he rm en ut ic al pro bl em ,” 

th e fa ct th a t “One ca nn ot th in k as a Chr istia n w ithout pre- su pp os in g a ce rtain 

way of un de rs ta ndi ng th e Bible.” 2 3 Su ch confu sio n ul tim at el y calls in to qu es tio n 

ou r ab ility to discern an effective re la tio ns hip be tw ee n ou r biblica l un der st an din g 

an d th e comp lex , co nfusing issu es th a t co nf ro nt us in ev er yd ay existence— an 

ability th a t m an y wo uld m ai nt ai n as fu nd am en ta l to th e C hr is tian fa ith. Thr ou gh 

careful dis cussi on of th e Prod igal Son pa ra bl e, I ho pe to re nder its pe cu lia r 

me ssag e re ga rd in g th e co nt em po ra ry iss ue of am nes ty less am bigu ou s. In th e 

pro cess, I in te nd to dem on st ra te by ex am ple th a t mor e ca refu l att enti on both to

1

 E.g., see George Ana stap olo: “An Amnesty on Discussions of A m nes ty publish ed In

an edited version by the Chicago Tribune; February 35. 1973, sec. 2, p. 2.

3

 Pa ul Lehmann, E thics in ai Christian Context (1963 : Harper & Row), p. 26.
843

method and to the lessons of our colleagues in the field of Biblical Studies will 

render all of us in the clergy and laity more effective in relating the lessons of 

scripture to the problems encountered in the church and the world.

T H E E X E G E S IS

In strict context, the Prodigal Son parable is one part of a theological justification for Jesus’ m inistry to the alienated, which sets the stage for a counteroffensive 

against the critics of that ministry. The counteroffensive is, of course, contained 

in the accompanying parable of the Elder Brother. Only with the stipulation that 

our results must, when in context, focus upon that counteroffensive, does it become legitimate to separate the two parables for the purpose of exegesis.

With this understanding, the salient featu re of th e Prodigal Son parable, according to Joachim Jerem ias / becomes the father’s remarkable reaction to his sons’ 

return. The fath er runs to greet the son while the latter is “yet at a distance.” 

The parable carefully illustrates tha t the fath er does not wait to h ear the elaborate 

repentance speech which the son has meticulously prepared (see verses ISf and 

2If)—he is simply not interested.

Apparently it is not the purpose of this parable to discuss the prodigal’s actions, 

as much as it is to “drama tize the experience of loss and recovery, of alienation 

and reconciliation.” 3 4

 As Gert Jerem ias concludes, “ God is like a loving father, 

who wants his children to come home . . . simply because they are his.” 5

 This is not a discussion of guilt or innocence, of forgiveness or repentance; not, at least, 

as we commonly understand these themes. Rather, the parable illustrates tha t 

God’s acceptance of the outcast is an a priori attitu de; the father was, in effect, 

waiting anxiously on the doorstep with love in his heart, ready to forget the past, 

to “wipe the slate clean,” and to begin anew.

T H E IN T E R P R E T A T IO N

Certain features of this foregoing method should be underscored. The biblical 

passage is first exegeted without considering the proposed application to contemporary issues. Additionally, when inte rpretin g the parables, we must concentra te our attention on the single emergent theme or idea, and resist the temptation 

to make allegorical identifications of individual characters or events in the parable 

with “similar” people or events in our conte mporary situations. These principles 

constitute the most basic lessons in elementary exegesis, to be sure. Yet they are 

precisely the rules which are repeatedly violated by most of us in "the clergy and 

laity during the course of a heated, emotional exchange.

A majority of the participants in an amnesty debate, regardless of their position, will tend to “id entify” the father in the Prodigal Son parable with the 

government and citizens of this country, and likewise the prodigal son with the 

individual exiled or imprisoned draft resister. Such identification, however, is 

irrelevant as well as inappropriate, since we are not interested in an allegorical 

inte rpretation of the parable. Likewise, repentance and forgiveness are presupposed 

all too self-assuredly as the central themes of this parable, when, in fact, this 

examination implies tha t these two motifs are subordinate to the essential issues 

of recovery and reconciliation.

Strictly speaking, the issue of amnesty by-passes the emotional debate over 

who is to blame for the war in Indochina, or for the violation of draft statutes. 

Amnesty is not related to “pardon” or “forgiveness,” as is often incorrectly 

assumed. Rather, amnesty (related to the word “amnesia” ) is a legal precedent 

that allows us to forget the past, to “wipe the slate clean, and to begin anew.” 

As we have seen, it is precisely such an act of reconciliation that is outlined in the 

parable of the Prodigal Son.

Our problem and its possible solution shape up in this fashion: we cannot 

punish war resisters, since it is clear tha t many are innocent—guilty only of acu te 

moral jud gment, while convincing arguments and evidence exist for the immo rality 

of the “legal” government involvement in the Indochina war.

Nor are we in a position to “forgive” war resisters, since in many cases it is we 

ourselves who may stand in need of forgiveness. At the same time, labeling all 

war resisters as “moral heroes” is obviously inaccurate, since many abandoned

3

 Jo ac hi m Je re m ia s. Th e Par ab le s of J esu s (19 72 : SCM P re ss ), pp. 12 8- 31 .

4

 I am Inde bted to Dr . E rn est W. Sau nd er s of G arr ett Se minar y fo r cl ar ific at io n of th is 

cr uc ia l po int.

5

 D r. Gert Je re m ia s. le ct ur e on pa ra bo lic in te rp re ta ti on, given a t G arr e tt Se minary 

duri ng th e W in te r of 1972.
844

all moral commitmen t solely in the interest of self-preservation. The legal and 

moral entanglements are simply too complicated for objective judgm ent. \\ e 

cann ot separate the wheat from the tares (Matthew 13).

All of us affected by this issue—exiles, prisoners, embittered parents and 

families, war veterans, government officials, and confused, concerned citizens— 

can only say to one another, as did the fath er of the prodigal son, “W hatever 

were your reasons for doing what you did—I don’t care. I’m not interested. I care 

only for the fact that you are my son, and I love you. Welcome home!”

Sisters of Saint J oseph of Carondelet,

Administration Center,

Saint Paul, Minn.

Resolution No. 55—Amnesty

Resolution on Amnesty passed by the Delegate Assembly of the Sisters of St. 

Joseph at its meeting on J anu ary 26, 1974:

Whereas the Congregation of th e Sisters of St. Joseph is committed to reconciliation as an expression of its mission; and

Whereas the Archdiocese of St. Paul-Minneapolis is beginning a year of reconciliation in preparation for the Holy Year of 1975; and

Whereas amnesty is not pardon, and in judicial trad ition amnesty forgets or 

blots out the offense for the sake vf reconciliation and a new beginning: Be it

Resolved, That the Delegate Assembly of the Sisters of St. Joseph, St. Paul 

Province, endorse universal and unconditional amnesty as an appropriate and 

concrete response to the post-war division which exists in the United States of 

America.

“For all those whose opposition to the war in Indochina brought them into 

conflict with the laws of the Government, we ask amnesty. We call upon the 

Congress to enact amnesty in its legislative autho rity to determ ine what is the 

law. We call upon the President to declare amnesty by his executive autho rity.”

Wayzata, Minn ., March 6, 1974-

Mr. William Dixon,

Rayburn House Office Building,

Washington, D.C.

Dear Mr. Dixo n: This lette r is in regard to the House hearings on the amnesty 

issue. I understand that, you are accepting d ata for the hearings. I wish to add my 

support for unconditional amnesty.

My husband, Captain Charles F. Morley has been missing over Laos for the 

past four years. I am now well aware of the damage done by misinformation. 

My husband and I were victims of misinformation about the Southeast Asia war. 

Arid guilty of not seeking the facts when we had tha t responsibility. I hope th at 

these hearings will clear up misinformation by providing the facts. Such as the 

scope of the amnesty issue, and the thousands that would benefit from unconditional amnesty.

I know hew separation is a punishment, and th at people should not be punished 

for refusing to kill; or for having the insight and courage to m ake hard judgments 

and decisions. I know th at uncertain ty is one of life’s most cruel punishments. 

These people have already been punished wrongly. Anything less than unconditional amnesty would be a further wrong.

I do not know if I am a wife or widow. I am a prisoner of war. I live in uncertain ty, but I am certain that unconditional amne sty is necessary, needed, and 

needed now. We m ust release these prisoners of war.

I am always willing to give any help that I can, or information th at I have. 

Sincerely,

Michele Morley.
845

Schen ecta d y Area C le rgy a L ait y C o n c e r n e d , '

Schenectady, N .Y ., March 2, 1974-

M r. W il lia m D ix o n ,

Counsel, House Committee on the Jud iciary, Subcommittee on the Courts, Civil

Liberties, and the Admin istr ation of Justice, Ray burn House Office Building ,

Washington, D.C.

Dear Sir : I wish, on behalf of Schenectady Area Clergy and Laity Concerned, 

to subm it the following s tatement for the Record:

Being the only active peace movement organization in the entire Up state

New York area east of Syracuse, and having contact with a wide variety of 

political, community, sociai, and educational greups in our s tat e and nation-wide, 

we find after much public exposure on the issue that response from Americans 

is overwhelmingly positive in favor of Amnesty, and we have received very little 

opposition to even our strongest position in favor of complete and unconditional 

Amnesty. Thus we wish to bear testim ony, for the hearings March seven th, 

1974, on Amnesty, that it is our widely-supported opinion that unconditional 

amnesty for all Avar resisters, draft deserters, and others who received less tha n 

honorable discharges from the United States Military Services for reasons of 

their opposition to the immoral, unconstitutional, and undeclared war in Southeast Asia, is the only policy Avhich would restore to this divided natio n the honor 

and unity she deserves, and which Avould bring to an end the years of torm ent 

and devision resulting from the Indochina wars.

Amnesty as Ave support it, is defined as follows: “a general overlooking or pardon 

of past offenses by the ruling au tho rity;” (Oxford English Dictionary); Ave also 

include in the definition: “a pardon relieves an offender from the consequences 

of an offense of which he has been convicted, while Amnesty obliterates an offense 

before conviction; and in such case, he stands before the law precisely as though 

he had comm itted no offense.” (J.S. v. Bassett 5 Utah 133) (1887) The power 

to pardon, including the power to grant universal amnesties, is well knoAvn to 

have precedents in Presidential and Congressional actions. It is our belief th at 

curre ntly, by precedent after the Civil War, Presidential amnesties have effect; 

but we also urge Congress to act on this issue as soon as possible. It seems the 

President in all his power and “honor” is currently n ot Avilling to grant amnesty; 

his misunderstanding of it and his seemingly unreasonable sta te of mind shoAvs 

he would not view it as we do.

Unconditional amnesty to all Avar resisters would in our view, and the vieAV of 

all those we represent, be the most fittin g way to heal the Avounds of Vietnam 

and to honor great Americans Avho died there.

Fur ther, it is our view th at a case-bv-case trial procedure for amnesties Avould 

be impracticable. Our position is thus distinct from that of the New York State 

American Legion, Avhich advocates a case-by-case individual tria l procedure for 

amnesty.

1 wish to call to th e committee’s attention th at it is very frequently and rem arkably the pare nts of young men who died in Indochina who lead efforts within peace 

movement channels to obtain unconditional amnesty. Gold Sta r mothers and 

parents of many dead Americans who did go to fight in Indochina are some of 

our most devoted workers. The amnesty we seek Avould be the most fitting m onument to the dead in Indochina.

We are supported in our desire for a universal amnesty by many churchgoers 

and clergymen who form a critical part of our political and moral fellowship in 

Clergy and Laity Concerned. We urge you to recognize the broad and heterogeneous base of our support and to take into consideration our suggestions here.

In peace.

Sincerely yours,

S ar ah St e u b e r Bis h o p, C hair p ers o n .

Sta t e m e n t of R uth D ea ts, W e s t N ew to n, M as s., P r epa r ed fo r t h e H ouse

J u d ic ia ry S ubcom m it tee H ea r in g s on Am nest y

My statem ent is made as an individual citizen deeply concerned about other 

individual citizens who are caught in the highly controversial m atter of am nesty— 

amnesty for all those who in one way or another xiolated a law connected with the 

Vietnam Avar.1

1

 Others w ho testify before your committee will be full of statis tics, examples, etc. So thi s statement is 

more a personal one;
846

But I speak also—

(1) as a mother of four—three daughters whose college years were in the ’60’s, 

and who each in her own way and with different avenues of involvem ent in stu dent 

unrest of tha t decade faced the moral questions raised by the war—and a son 

who registered for the draft in 1972.

(2) as a mother-in-law to two sons-in-law, one who had a physical deferment 

and the other who enlisted in the U.S. navy and served two years in the war 

area.

(3) as a member of several organizations (Clergy and Laity Concerned, the 

American Friends Service Committee, Fellowhsip of Reconciliation) which tried 

to raise the conscience of the religious communities of our country about the 

terrible loss of life bo th civilian and military on both “sides” of the Vietnam conflict. and which also kept continual pressure on th eir memberships to inform themselves and their Congressional representa tives about what was happening in the 

whole Tndo-China area—n ot only about loss of life but also the devastation of 

homes, farms, villages, and of the appalling number of refugees who seemed constantly moving.

(4) as a parttim e counselor in a draft counseling center. There on a one to one 

basis counselors saw hundreds of young men as they struggled with their duty 

to country and to conscience, as they faced alternatives open to them under the 

draft system. We also saw and heard parents and friends as they tried to understand demands made on those “eligible” for the draft. While families in the war 

zone were being torn apart, families in the USA were being ripped apart because 

young men became “refugees” rather than be involved personally in the Vietnam 

war.

(5) as an individual person who believes each human being is im portant in the 

sight of Cod and therefore warfare as a meth od of solving political problems is 

impossible.

So 1 plead with this Subcommittee of the House Judiciary Committee to 

recommend complete amnesty to all those who are in exile, prison, underground 

or wherever because of the Vietnam war for these reasons:

(1) Enough time and tale nt has alredy been lost by those who would be affected 

by amnesty. We in the USA have so many problems here which need attention ; 

some of these young people have much to give of their time and talent to working 

on our national problems. There is also unfinished work to do abroad—materiallywise on (homes and land and people-wise, those homeless, mangled, and bewildered in Vietnam, Laos, Cambodia. Some of those who would receive amne sty 

might feel drawn to “build up” rather than “tear down.”

(2) We cannot undo the past. To try to judge each case one by one is much too 

complicated and lengthy a process. There may be those who having accepted 

amnesty will prove to be so injured emotionally by the experience of exile or 

prison they cann ot function well in society. Maybe others who accept amne sty 

would be the very ones to help those having a difficult time adjusting because 

they have shared similar experiences.

(3) Families and friends of those granted amnesty would be relieved of the 

burden of anxiety and frus tration and thus be freer to turn their concerns to 

postw ar problems—such as relieving famine in West Africa or worldwide ecological 

problems.

Thank you for this opportunity to be “heard.”

So cie ty fo r I n d iv id u a l L ib e r t y ,

Alexandria, Va.

W ar R es is t e r s D id N ot B rea k t h e L aw

There are two different and often irreconcilable concepts of what consitututes 

the law in the United States today. One concept is tha t the law consists of w hatever any judge or the latest Supreme Court ruling says it is. The second concept 

is th at the law consists of what the Con stitution says it is. To put the issue in 

different terms, one concept is th at the law is the decisions and statem ents of 

men: the other concept is th at th e law is a s et of basic moral principles and logical 

conclusions derived from those principles.

The decisions and stateme nts of men, of course, can be the same as or at least 

consistent with the principles of the Constitu tion—they may, in fact, be neither 

more nor less than the enumeratio n of those principles and their application to 

new circumstances. But the decisions and statem ents of men can also bla tantly
847

contradict the princip'es set forth in the Consitutio n and they can totally violate 

and subvert the tinen tions of the framers of the Constitution. When such conflicts 

occur, and, we submit, they occur often today, one must choose between two 

opposite and fundamentally different concepts of law: either conformity to 

principle must be set above the whims of men, or the whims of men will triumph 

and ultimately totally destroy all principle.

Historically the United States of America was conceived of as a natio n of law,

not men. This means that the principles of individual liberty set forth in the 

Declaration of Independence and the Con stitution—the inalienable rights of 

the “individual to life, liberty and the pursuit of happiness” , the liberties guaranteed in the Bill of Rights— were the supreme law of (he land. Article VI of the Constitutio n state s, “This Constitu tion and the Laws of the United States which 

shall be made in Pursuance thereof—shall be the supreme Law of the Land—” 

“ (emphasis added ). Legislation, a presidential decision orxeven a Supreme Court 

ruling which contradicts the content and intent of the Constitution is, therefore, 

not law, The laws of the United States can only be principles enumerated in or 

consistent with the Constitution. The fact is that the Constitution has been so 

frequently ignored th at it can be said there is, in effect, two Constitutions in 

this country—the real one which is honored only as a figurehead, and an unstable 

de facto one which is whatever the Supreme Court, the President or the Congress 

says it is.

W E R E TH E D RAFT AND W AR IN V IE TN AM C O NSTIT UTIO N A L?

Every American with a mind and the capacity to use it has the right to read 

the Constitution and decide for himself what is says. Supreme Court justices 

do not have a monopoly on thought, wisdom and tru th. Ultimately, they are 

fallible like you and I. They differ from us principally not in their veracity of 

thought, but, rather, in the position which they occupy. Even the decisions of 

any specific Supreme Court are not necessarily final because they can be and 

have been reversed by other Supreme Courts and Constitu tional amendments. 

Court decisions, legislatives acts and presidential mouthings can be and have 

been rendered null and void by simply being ignored.

Some questions of Constitutional law are complex and difficult, and they 

require great knowledge to deal with. But others are so simple tha t a child could 

answer them. The Constitu tionality of the d raft and the war in Vietnam are such 

questions.

IS TH E DRAFT CO N STIT U TIO N A L?

Many articles of the Constitution uphold the unconstitution ality of the dra ft; 

none do otherwise.

Amendment X III state s, “N eithe r slavery nor invo luntary servitude, except as 

punishment for crime whereof the party shall have been duly convicted, shall 

exist within the United State s, or any place subject to their jurisdic tion.” The 

draft, by definition, is involuntary servitude. No a tte mpt to ju stify this servitude 

can disguuise its involuntary natu re. Some argue th at there was no intent to 

apply the XIII Amendment to the draft. Th at argument is not a good one because 

the government continually ignores the intent of the Founding Fath ers and other 

writers of the Constitution, saying the Constitu tion should be elastic. Whether 

it should or should not be elastic is an unsettled question.

Article I, Sec. 8 states th at “Congress shall have the power”—to raise and support 

armies.” , and to make all laws which shall be “Necessary and Proper” to execute 

th at power. That article does not state that Congress shall have the power to 

compel military service just as it doesn’t state that Congress shall have the 

power to compel postal service which it authorizes in the same article. Since 

armies can be and have been raised by voluntary enlistments, the dra ft is not 

“necessary” and, therefore, not Constitutional. Furtherm ore, compulsion and 

freedom are opposites. Since freedom is the value th at is the very foun datio n 

of the greatness of the United State s, any att em pt to weaken it can never be 

considered “p roper”.

To some people, Article 1, Section 8 and the XIII Amendment may seem to be 

in conflict with each other. This conflict can be resolved by using the guide which 

states th at when two laws conflict, the more specific one holds. In the case cf the 

drafted vs. the volunteer army, it is the XIII Amendment th at is the more 

specific law. Thus, there is a restriction on the means th at the government may 

constitutionally use to raise a military force . . . no slave ry or involuntary 

servitude mav be used.
848

In answering the question “ Is the draft ‘necessary’ for the sur viv al of the 

United States?” one must first ask “ Wha t in fact is the Unit ed Sta tes? ” The 

Un ited States of America, like all states, is neither more nor less than a means to 

the ends of the inhabitants of the country. The purpose for which the United 

States was formed was the protection of the individ ual’s rights from both violence 

done by other indiv iduals and the violence done by govern ments. The Constitut ion was conceived of not as a limitation upon the lib ert y of indiv iduals, but 

rather as a limit ation upon the power of governments. Government is prop erly an 

inst rum ent ality of man— it is not properly either an end in itself, much less an 

end above those of indiv idual men and the protection of their rights.

If the preservation of a nation is an end which men seek and desire, then no one 

need compel them to preserve it. If the preservatio n of a nation is an end of no 

concern to men, then no one has a right to force them to pursue it. Men defend 

that which they value;— and no one has the right to force them to otherwise, 

whether he acts as a private indiv idual or as a g overn ment official.

To the extent tha t tha t instrum enta lity of men known as the state is good and 

desirable, they will fight and die to preserve it. To the extent tha t it is evil and 

corrupt, the y will willingly and prop erly see it pass from the earth.

Amendment I was violated by requiring that people have a religious reason for 

refusing the draft or refusing to kill. The substitution of alter nate service was still 

inv olu nta ry servitude, no matter how ‘noble’ that service was claimed to be. 

Broa dening the conscientious objection exemption was not sufficient. No one needs 

to give a nyone a reason wh y he does not want to make war.

Amend IV . The draft is a violation of “ The right of the people to be secure in 

their perso ns” against an “ unreasonable seizure. It is unreasonable to seize peac eful people for purposes of s lav ery or punishment. It is hypocritica l to use slaves in 

a battle for freedom.

Amendment V makes the point tha t no one should be deprived of his life, lib ert y 

or prop erty withou t due process of law. A draftee is deprived of his property because he is paid less than that which he is willing to work for, and perhaps in 

most cases for wha t he could earn in the private sector. Thos e favoring the draft 

argue tha t it is cheaper to raise an arm y that way, the reb y conceding this point.

Amen dmen t VI II p rohib its “ cruel and unusual punishmen ts” . T he trea tment of 

the war resisters has been very cruel (unfortunately not unusual), subjecting 

them to hard labor, soli tary confinements, and even execution has been used 

by this country . Furthermore, termination of sentence does not term inate harassment, the resisters being inhib ited from finding employm ent, education, 

etc. because their govern ment records haunt them to the grave.

Amendment. XIV also bears upon the Const itutionality of the dra ft. It states: 

“ No sta te shall make or enforce any law which shall abrid ge the privileges or 

immunitie s of citizens of the Un ited Sta tes; nor shall any sta te deprive any 

person of life, libert y or property, withou t due process of law ; nor deny to any 

person within its jurisdiction the equal prote ction of the law s.” In-so-far as the 

dra ft singles out some men and exempts all women (by definition it is call selective 

service ), it is a cle ar vio latio n of the equal prote ction of the law. Eve n a universal 

draft is, rather, a withdrawal of legal protection from those caught in the draft. 

Life and limb are not protecte d but are, rather endangered when subjected to 

conditions cf war and mi lita ry service. Those sub jected to the Military Code of 

Justice do ne t have the full privileges and immunities of other citizen s.

Amendments X and IX . The Unit ed States government does not hav e the legal 

power to do whatever it pleases, although it often tries and does. It does n ot have 

the right to even the power to gran t rights to the citizens. Just as people a re born 

with their skins, so are t he y alre ady supplied with their rights when the y are bom 

(or crea ted) . The Con stitutio n recognized tha t in Amendments X and IX . It 

would be sufficient to prove the government has no power to dra ft solely on either. 

Amend. X forbids the draft on th e grounds tha t “ The powers not deleg ated to the 

United Sta tes b y the Con stitu tion , nor prohibited by it to the States, are reserved 

to the Sta tes resp ectively, or to the peop le.” Amendment IX states tha t, “ The 

enumeratio n in the Con stitution of certain rights, shall not be construed to deny 

or dispa rage others retained by the p eople.” It is safe to assume that among the 

righ ts the Founding Fath ers referred to were the self-evid ent ones of life, liberty 

and pursuit of happiness. The draft, milita ry or otherwise, is a violati on of those 

inalienable rights, all claims that du ty calls people to save the cou ntry 

notwith stan ding.

Those who assert that the dra ft is necessary to prese rve the United Sta tes are 

im plicitly stating that the United Sta tes is not worth defending for its own 

sake , that men are too laz y or indifferent to prot ect their homes and that their
849

values and judgments are to be imposed upon other men by force. This is antithetical to the very principles upon which America rests. Is the dra ft necessary 

for the survival of the United States? Only if the United States is so evil and 

corrupt and indifferent to freedom that foreign rule is preferred by its citizens to 

its own government. Fortun ately th at dark day has not yet come.

Army Lieut. General Leo E. Benade testified at the House amnesty hearings 

(3/13/74) th at “The Dep t. of Defense does n ot want or need dra ft evaders in its 

ran ks. ” He is adm ittin g that an army is more effective with willing soldiers 

(volunteers) and tha t the army can get along without forced (drafted) labor.

DID T H E D E S E R T E R S AN D O TH ER W AR R E S IS T E R S B R EA K T H E LA W?

Those people who became involved in the struggle for justic e even though 

they could have s taye d in bed showed that th ey really cared.

Much of w hat has been said in defense of th e d raft evaders can be applied to th e 

deserters. There are further arguments that can be applied to their defense.

Article I, Sec 8 states th at only Congress shall have the power to declare war. 

Though Congress did appropriate funds for the war in Vietnam, and while this 

may seem to imply some consent, it hard ly constitutes a declaration of war. The 

war was, rather, declared by the president, not by Congress, and hence was an 

illegal war. There is no legal basis for prosecuting anyone for refusing to obey this 

illegal action, therefore, the Departm ent of Justice has no basis for prosecuting 

the war resisters. People can only be prosecuted for breaking a law. The resisters 

did not break the law.

Those who deserted from the military have legal as well as moral justification 

for having done so. There is no Constitutional requirement th at anyone kill 

anyone else, let alone innocent non-combatant men, women and children.

Those who joined the m ilitary as a result of their being drafted cann ot be said 

to be bound by any valid contract. The principle of contract implies th at one is 

also free to not enter into a contract. The draft denied this free choice, so there is 

no contract.

There are those who were clearly volunteers and could, therefore, be said to be 

under contract to the military. However, any initiation of the use of force is immoral, whether done by an individual or by a group of individuals known as the 

state. (No one can prove that this coun try was attac ked first.) The courts of this 

land do not honor “contracts” th at require aggression against non-aggressors. If 

those co ntracts are considered null and void, there is no reason for similar c ontracts 

made by the sta te to be honored. States should act morally as well as individuals. 

Therefore, the volunteer cann ot be said to be bound by any valid contract.

Duty to this country cannot be considered to be any contract because, again 

there is no consideration given to the free choice of the individual to say no. The 

only true duty th at everyone owes to everyone else is a negative one, to do no 

harm. The person who abstains from causing harm can never be guilty cf violating 

the rights of another and causing anyone else to be hurt or killed.

W H A T IS TH E U LTIM A TE A U T H O R IT Y O F LA W ?

Ultimately all laws worthy of the name must rest upon a foundation of ethical 

principles. The basic principles of liberty have been well stated in the Declaration of Independence and similar docum ents: every invididual has an inalienable 

righ t to his own life, liberty, prop erty and pursuit of happiness, not anyone else’s. 

No individual who has not harmed another may be compelled to act against his 

will. The punishment must fit the crime. Slavery, the ft and murder are moral 

abominations and should also be considered so under the law.

All rights are necessarily individual rights. States and governments are merely 

collections of individual men formed for a p articular purpose. They can logically 

possess no moral rights nor powers not possessed by the ir constituen t members. 

Since no individual has a right to enslave his fellows, no individual can possibly 

delegate such a righ t to a government, even if a majority of them want to, and 

therefore, no government can possess such a moral right.

Governments can and do possess the power to visit men with all sorts of evils, 

bu t power and righ t m ust never be confused.

CO NCLUSI O N

In the final analysis the U nite d States Con stitu tion, and only t he Constitution 

is the law of the land. (And even th at law is subject to and should be consistent 

with the moral law. Since the dra ft and war in Vietnam were blatan t violations
850

of th e Constitution, those who evaded the draft and otherwise refused to partic ipate in the war did not break the law of th e land but rather merely went contrary 

to the wishes of the Suprem e Court justices, some legislators, and some presidents. 

In seeking to protect the ir lives from the ravag es of war, the resistors were 

legitimately pursuing the ir self-interest. In refusing to succumb to the illegal 

thr eats of harm of draft boards and police, and the military, they were actin g 

courageously to uphold the principle of the law. The war resistors do not require 

forgiveness for they violated neither moral principles nor any thing which could 

logically be called the law of the land. The government officials who persecuted 

them do require forgiveness for they violated their oaths to uphold the Constitution and have subv erted the very principles upon which the law rests. If the purpose of government is to codify and establish law for the purpose of preserving 

order, it. is proof th at those entrus ted with such a noble purpose have failed. T here 

is no greater indication that there has been a failure of “law and order” th an when 

our governments lead us into or fail to keep us o ut of war. This happens because 

of the supposed dichotomy between that which is moral and th at which is practical. 

There is no dichotomy in rea lity. T he sooner we und erstand this principle and p ut 

it into practice, the sooner the world will learn to live in peace and harmony.

Doris Gordon. 

J arret Wollstein.

American Association of University Professors,

Washington, D.C., March l' tf 1074-

lio n. R obert W. Kastenm eier,

Chairman, House Judiciary Subcommittee on Courts, Civil Liberties, and the Administration of Justice, Rayburn House Office Building, Washington, D.C.

Dear Mr. K astenmeier: In view of the current hearing on legislation providing

for amnesty, I wish to bring to the attention of the Subcommittee the position of 

the American Association of University Professors on this crucial issue.

In 1973 the delegates to the AAU P’s Fifty-n inth Annual Meeting a dopted the 

following resolution: “ The Fifty-ninth Annual Meeting of the American Association of University

Professors welcomes the withdrawal of United States armed forces from Vietnam, 

the retu rn of United States prisoners of war, and the signature of the \ ietnam 

Peace Treaty. In this context, this Annual Meeting reaffirms the Resolution of 

the Fifty-eighth Annual Meeting calling for a nonretributive universal amnesty 

for exp atriate and imprisoned war resistors and conscientious objectors. Now that 

United States participation in the Indochina war seems to be ending, it is more 

urge nt than ever to heal the wounds of war and to overcome the deep divisions 

which the war engendered in our nation. The policy of amnesty is deeply ingrained 

in o ur history and tradition. President George Washington, upon granting a ‘full, 

free and entire pardon’ in the first act of amnesty in our history, argued, in his 

own words, f or‘every degree of moderation and tenderness which justice, dignity 

and safety may permit’ in the exercise of his Constitutional powers. Amnesties of 

varying degree have been granted by a long line of American presidents, from 

John Adams, Abraham Lincoln, and Andrew Johnson to Coolidge, Roosevelt, and 

Trum an, following upon this nation ’s wars and rebellions. At this juncture in our 

history, with a long and unpopular conflict now receding, and with a spirit of 

reconciliation hopefully emerging in our foreign policy, it is only just that a like 

reconciliation be affected among our own people, and with those of our youth 

who conscientiously resisted or refused to participate in what they regard as a 

morally unacceptable war. This Meeting urges a nonretributive universal amnesty as yet another act of peace.” On November 22, 1973, acting on behalf of the Association, I issued a statement 

urging President Nixon to use the occasion of Thanksgiving to grant amnesty to 

those American youths who conscientiously resisted or refused to participate in 

the Vietnam War. “ On this day,” I said, “ when so many of our concerns are directed to unprecedented problems of conserving our national resources, we m ust not overlook one 

of t he most essential of those resources: the y outh of America. At no time in our 

history has there been a greater need for our nation to be unified, if it is to be 

effective in solving the problems before us. I urge President Nixon to act now to 

heal the wounds t ha t still remain from the tragic war in \ ietnam .”

I urge you and the members of your Subcommittee to take those affirmative 

and constructive steps necessary to implement a policy of amnesty.

Sincerely,

W alt er A da ms.
851

[E dit ori al, Am ne sty to Bind th e Wounds, th e Bo ston Globe, su bm itte d fo r th e reco rd by 

Co ng ressman Rob ert P. D rina n]

Amnesty T o Bind the Wound

On this day between the anniversary of Abraham Lincoln’s birth and Valentine’s Day it seems ap propriate to think of an issue that involves both courage and 

kindness. Hearings on amnesty for those who the long Vietnam War will begin 

before a nine-m ember subcommittee of the House Judiciary Committee next 

month.

A decade has passed since resistance to America’s role in V ietnam became manifest in demonstrations outside draft boards. More than a year has gone by since the 

American troops were called back. The prisoners of war have come home. Surely 

the time has come to deal with those other victims of an unusual and unpopular 

war and, as President Lincoln urged, “to bind up the na tion’s wounds.”

It is argued that “forgetting” the defections of young men who left their country 

rather tha n go to war would open the door to anarchy. But that is to forget the 

climate of the ’60s when na tional leaders were joining young people in their revulsion against American involvement in a civil war half way around the world. T hat 

is to overlook the fact that the grounds for conscientious objection were significantly broadened and changed in 1970. Th at is to ignore the argum ent tha t, while 

those who evaded the draft had the education and funds to take such action 

deliberately, desertion was the avenue open to the poor and inarticulate.

Many Americans who might have sought amn esty have served out long terms 

in jail or have settle d into lives outside the country. And the num ber and nature of 

the cases tha t should be considered remain anyone’s guess, with figures now being 

sought from the Departments of Defense and Justice. The five Democrats and 

four Republicans serving on the subcom mitte e chaired by Rep. Rober t W. K astenmeier (D-Wis.) have nine ampesty measures before them. Surely, somewhere between provision for overall pardon, various forms of alte rna te service and the 

establishment of a board to review each case on its merits, the means can be found 

to show mercy here.

Statement on the Issue of Amnesty, Presented by Robert W. Nolan

National Executive Secretary, F leet R eserve Association

IN TR O D U C TIO N

_ Mr. Chairman and Members of this distinguished Committee, I am Robert W.,

Nolan, Natio nal Executive Secretary of the Fleet Reserve Association. As a retired Navy Chief Pe tty Officer, with twenty-one years of active service, it is my 

pleasure to present the views of my 94,000 Shipmates on the subject of amnesty.

The Fleet Reserve Association is a service organization composed of career e nlisted personnel, and commissioned officers who have prior enlisted service, of the 

L nited States Navv, Marine Corps and Coast Guard. Approximately, forty-five 

percent of our members are now serving on active duty, the remainder are either 

in the Fleet Reserve components or fully retired.

As you may know, an enlisted member of th e Navy or Marine Corps does not

“re tire ” at the completion o f twenty years of activ e duty service. Rather, the 

Secretary of the Navy may transfer him to an inactiv e statu s in the Fleet Reserve 

or Fleet Marine Corps Reserve respectively. The enlisted careerist continues to 

serve in this inactive status subject to twenty-four hour recall at the pleasure of the 

Secretary of the Navy. He remains in this category and receives “retainer” pay 

until he completes a tota l of th irty years service when he is placed on the retired 

roll and receives retired pay.

Our Association takes its name from the Fleet Reserve components of the Regular services. Originally, membership in our Association was restricted to those 

active duty personnel who were eligible to transfer to the Fleet Reserve components, those in the Fleet Reserve components or fully retired. Today, a Sailor, 

Marine or Coast Guardsman must have completed at least four years of active 

duty service and be obligated to serve an additional two years to join the Fleet 

Reserve Association.

The Fleet Reserve Association was formed in 1922 and formally chartered under 

the laws of the Commonwealth of Pennsylvania on November 11, 1924. We are 

the oldest enlisted personnel organization and we pride ourselves on truly reflecting 

the opinions of the career personnel of the three Sea Services. All of our members 

have served during wartim e and the vast majority of our membership can cite 

military service in at least two of our nation’s last four wars.
852

Our Association is comprised of 300 Branches throughout the United States, the 

Philippine Islands, a nd overseas at Navy and Marine Corps bases. Each Branch is 

entitle d to at least two delegates, based on its annual membership stren gth, to 

our national convention. Proxy votes are permitted to protect the Branch’s 

franchise. Each delegate has the privilege of the floor on a ny subject. In fact our 

convention business meetings follow the great American democratic tradition of a 

town hall meeting. I cite this to assure you th at I am presenting a majority view.

T H E IS S U E OF AM NES TY IN T H E FR A

As the argu men ts on amnesty, both pro and con, grew into a national issue, our 

members began to voice their views on the subject. At the 1972 national convention 

in San Diego, California the National President appo inted a Special National 

Convention Committee on Amnesty. The Committee was composed of the 

Regional Presidents of the Association’s nine geographic regions and was chaired 

by the Junior Past National President. This was done to assure tha t every Region 

of the Association was represented fully.

The Special National Convention Committee on Amnesty held open hearings. 

Every F.R.A. member prese nt was allowed to attend and present his views. This 

included members of the Ladies Auxiliary, Fleet Reserve Association, who were 

also in convention. The Special Committee repo rted th eir findings to the delegates 

on the last d ay of the convention.

The findings of the Special Natio nal Convention Committee on Amnesty are 

as follows:

1. Those Americans who chose not to serve in th e Armed Forces bu t rather 

elected to evade the dra ft or to desert once the y were in service have clearly 

broken t he law.

2. In view of the honorable service and self sacrifice of their millions of 

contemporaries who served in Southeast Asia, the draft-evaders’ and dese rters’ 

action is all the more reprehensible.

3. To those who now speak of mercy and amnesty of these law breakers, 

we remind them th at American justice has always been administered with 

mercy an d understanding. Therefore, let them pay the piper.

The Special Committee on Amnesty drafted the following resolution and 

presented it to the more th an six hundred delegates who approved it u nanimously :

“ Whereas it is the duty of every American to pass on to posterity, pure and 

untainted, the liberty he derived from his ancestors; and

“Whereas in recent years hundreds of young Americans through personal 

choice and action have evaded military service in th e Armed Forces of th e United 

States thus, allowing their fellow citizens to serve in their stead; and

“Whereas these evaders of duty have failed to uphold and defend the Constitution of the United States of America and chose instead, to d esert their nation; and

“Whereas, of those who chose to serve our country, many thousands have been 

wounded or maimed, over fifty thou sand have made the supreme sacrifice and 

hundreds more have been captured and are now prisoners of war; and

“ Whereas may no adu lt American enjoy freedom if he does not have the spirit 

to defend it: Therefore, be it

“Resolved, by the members of the Fleet Reserve Association assembled in national

convention in the City of San Diego, California, 17-21 September 1H72, after due

deliberation and by unanimous vote, Th at these draft-evaders and deserters are 

not above the law therefore they should be punished under the law and under no 

circumstances should amnesty be granted to those who refuse to perform their 

military duty and fulfill their obligations as a citizen of our nation.”

The Fleet Reserve Association is well aware of the fact th at after the shooting 

stops, the American public mellows and tends to be forgiving. However, the above 

manda te as approved at our 1972 natio nal convention is still the Fleet Reserve 

Association’s position on the issue of amnesty. To have any other position would 

be to mock the honorable service and sacrifices of those who have served in our 

nation’s Armed Services through all of our conflicts and especially in Southea st 

Asia.

Mr. Chairman, this concludes our statem ent and we sincerely appreciate the 

opp ortunity of presenting our strongly held views on this volatile subject. I 

thank you.
853

Mar qu ette, Mich ., March 16, 1974.

Mr. R ob er t K as te nm eier ,

Representative,

Washington, D .C.

Dear Sir : There has been considerable discussion in regard to the amnesty 

situation for deserters and dra ft dodgers.

I believe I have the solutio n. These men should be allowed to return to this 

cou ntry bu t the y would have to select one of the alternatures as listed:

1. Get married imm ediately, have a child as quickly as possible and teach 

school, or

2. Serve a hitch in the natio nal guard, or

3. Attend college for four, six or eight years on a government loan.

I realize that man y people feel that the draft dodgers who left the cou ntry are 

more honest than those who stayed in this cou ntry b ut I do not believe in coddlin g 

them on this account.

The third alternativ e may seem quit e harsh but, jus t as the draft dodgers who 

remained in this coun try, the y could be perm itted to select a school wit h ve ry 

low scholastic stand ards and would not be required to learn anything .

Y ours,

H. L. K ir k.

Women’s I nter na tio na l L ea gu e for P eac e a F reedom,

Ohio Sta te B ranch, 

Cincinnati, Ohio, March 15, 1974-

Represen tati ve R ob er t W. K as te nm ei er ,

House Judiciary Subcommittee on Courts, Civil Liberties, and Administration of

Justice, Rayburn House Office Building, Washington, D.C.

D ear Sir : In the recent Congressional hearings on amnesty sever al points were

brou ght out, such as tha t amn esty would betray those who particip ated in the 

Vietnam war, the dead as well as the li ving; that amn esty would d estroy the morale 

and discipline in the armed forces and undermine any futu re draft.

Before examining these statements, let us define amn esty. Am nesty means 

oblivion , forgetfulness, the erasing from memory. It does not mean pardon, which 

is forgiv eness. And erasin g from memory must in all fairness app ly to both parties— the American people as well as the draft evaders and deserters. It is not even 

valid to speak of “ conditional amnes ty,” which is a cont radiction in terms: how 

can an indiv idual tak ing adv ant age of such conditional amnesty by perfo rming 

some kind of forced service, presuma bly in penance for his sin, forget or erase from 

mem ory this unh appy par t of his life. To cloak s uch service in a euphem istic term 

such as “ the privilege to serve the country ” is mere windo w dressing and only 

clouds the issue.

Loo king at these men who, in the Pen tagon’s spokesman’s opinion would, by 

returnin g to their own cou ntry and families, betray those who took part in the 

war, we must concede that the y were, at least the ma jority of them, young men 

who acte d sincerely on principle and conscience. This position was, indeed, accepted by the Supreme Cou rt in the two notable conscientious obj ecto r cases; 

I ,S. vs. Seeger in 1965 and Welsh vs. U.S . in 1970. How can such people by their 

return to our society, either from exile, underground or prison, “ be tra y” those 

who took part in a war against which there was a large resistance while it was 

being waged, and which is now gene rally regarded as misguided and immoral, 

and not jus t unpopular? We are conv inced that the Ameiican people are more 

sensitive and matu re in their moral judgment than to call the Vietnam war 

unpopular jus t because we did not win it.

As to betray ing the ones who died in the war. Is this not a rath er presumptious 

stateme nt? The dead have their own honor and neither we, the spokem an for the 

Pentago n, the Government, or any Government or Vete ran’s organization can 

add to this honor or tak e away from it. We are, indeed, fully convinced tha t the 

dead, of all those involved, are above this petulence, vindictiveness, and selfserv ing sham righteousness.

While some of us are pacifists and may not believe in the institution of a sta nd ­

ing arm y at all, let us say nevertheless tha t state ments to the effect that amnes ty 

would dest roy morale and discipline in the armed forces are at best behin d the
S54

times, and not at all in step with a volunteer army, and at worst uninformed and 

downright ridiculous. Tak e, for example, the success of American industry. Long 

experience has clearly shown tha t the informed worker, to whom the reasons for 

certain procedures on the job are explained, who feels tha t he is a part of the whole, 

and who is not treated as a pair of hands without a brain, will much more successfully perform than somebody in forced service, unintelligible and therefore hatefu l 

to him. This is in no wa y connected with brain washing, which probably would 

not work anyw ay b ecause of the certain amoun t of sophistication our young people 

have.

Speculation that amn esty would undermine a futur e draft were at one time 

called “ pernicious abstrac tion s” by President Lincoln. Il is use of amnesty afte r 

the Civ il War had no discernable effect whatsoever on later drafts. However, there 

might be a further poin t here: most American people, and tha t includes Gov ernment officials, are of the opinion now tha t we should not have gone into Vietnam 

in the first place. Mig ht not something be said here for put ting a government on 

notice that if it plunges the nation into another war like Vietnam, it will experience troub le again. We, includ ing the Government, must learn this bitter lesson 

of experience— indiv iduals learn and so can govern ments, .although the process is 

very painful; for the puoils as well as the teachers.

In the more admirable periods of our history, there have been man y precedents 

for amnesty. General Georg e Washington made no effort to punish wartim e 

deserters even afte r his arm y at Valley Forge had pra ctic ally disintegrated. After 

the Whiskey Rebe llion in 1794, he again proclaimed amn esty. President John 

Adams granted, afte r the F ries Rebe llion in 1799, “ a full, free and abso lute pardon 

to all and eve ry person concerned in said insurrection.” President Jackson’s 

amn esty of June 12, 1830, pardoned all deserters provided the y would not serve 

in the armed forces of the United Sta tes again.

Let us recall to mind President Linc oln’s words at the time when the question 

of capturing Confederate leaders and bringing them to trial was discussed with 

his cabinet: “ I hope there will be no persecution, no bloo dy work afte r the war 

is over. No one need expect me to tak e any part in hang ing or killing, even the 

worst of them.” And finally Mr. Lincoln said: “ enough lives hav e been sacrificed.”

Are we going to be lesser people than our ancestors?

Respectfu lly,

D o r o t h e e M . M cC la in ,

Corresponding Secretary.

T h e A m nest y D eb a te

(A Com ment by Ro ber t Pickus, President, World Wi tho ut War Council)

The present amn esty discussion seems to me a traged y; a fam iliar one in the 

war/peace public opinion process.

It is a trag edy because an issue which could help reconcile a divid ed country is 

now prolonging, in peacetime, divisions which had their origin in the war. It is a 

tragedy because the outcome will be no amnesty and because of the consequences 

of that fact on the lives of man y you ng men.

It is a fam iliar scenario. The discussion is dominated by the extremes. Com ­

peting values which cry for a balan ced position are instead treated in a wa y that 

polarizes. The values in the discussion tha t relate to progress toward ending war 

are ignored or subverted.

Thus, forces opposed to American power in Vietnam raise the issue as a call 

for unconditional amn esty withou t alternat e service. The ir argu ment often 

centers more on wr inging from America a recognition of its wrongdoing in Vietnam 

than on bring ing the men home. The values relied on are conscience, forgiveness, 

and reconciliation. All are distorted: the plain fac t that the motives for evasion 

or desertion run from the most noble to simple self-interest is ignored; the enormous problem of reconciling and reuniting this cou ntry is collapsed to a concern 

for reconciling the evaders and deserters to the cou ntry .

A par ticu larly egregious example of confusion is the approach of ma ny religious 

liberals. Me rcy or forgiveness, profound religious values, are offered as the ove rridin g concern. Or so it appears until it becomes clear th at those resting their 

case, the y say, on those values, in fact believe no crime was committed by those 

who deserted or evaded. Th at is, for them, the key point; not forgiveness. Thus, 

an osten sibly religious position, examined, turns on a political persp ective. Why, 

the y ask, should men be prosecuted for refusing to napalm? Bu t that is not the
855

issue. Many resisted the war as COs or in jail. The problem is not what to do 

with men who would not go to war, bu t what to do with men who in their refusal 

broke with this political community.

And then the No Amnesty side responds. They emphasize law’, the obligations 

of citizenship and above all, equity, “fairness to the men who went in the place 

of the deserters and evaders and died” . Though they speak of compassion, they 

in fact show’ little for young men now sepa rated from their home who were also 

caught in th e terrible vise of the Vietnam War. Committed to traditional nation al 

defense postures and, like the other side, largely concerned with defending their 

view' of the Vietnam War, they bring equivalent passion to defending their no 

amnesty position. They enter the lists correcting—or sometimes sub stitutin g 

their own distortions for—specious arguments offered by the unconditional 

amnesty forces. See for example, the facts regarding amnesty precedents and 

estimates of the number of men involved and the distortions of these facts offered 

regularly in the debate.

Lost in the exchange between most present pro-amnesty forces and the Nixon 

administration is a statem ent of the goal on which a national consensus could 

form: i.e., a policy which enabled young men caught in the tragedy of the Vietnam 

War to return home without damaging respect for law' and the obligations of 

citizenship.

The policy for those comm itted to th at goal is clear: amnesty with generous and 

flexible alterna te service provisions.

Though attack ed by both the President and most organized amnesty groups, 

this position, when it is presented, evokes overwhelming agreement. See for 

example the editorials atta che d from two conservative papers.

But th at position is seldom heard. The passion that gathers at the extremes is 

seldom available to an approach th at balances competing values: law' and conscience; equity and forgiveness; reconciliation and the obligations of citizenship. 

Our World With out War Issues Center statem ent does this.

We are actively introducing this position into discussions from church basem ents 

to the White House; seemingly at this point, the only organized group th at is 

doing so. We are not offering this position as a “compromise” bu t as the wisest 

national policy and th e one th at best aids in strengthening understandings needed 

in progress toward ending war. It needs interpretation. You may find Response to

Critics helpful in y our discussions.

T he WWW IC Amnesty Proposal: R esponse to Critics

(By Robert Pickus, WWWIC Vice Chairman; Michael Cavanaugh, 

WWW IC Staff)

We encounter the nine following criticisms most often in circulating the 

WWWIC amnesty statem ent. Our sta tem ent to answer them, speaking only for 

ourselves, should help clarify some of the most im portant issues raised by the 

WWW IC proposal.

1. We should not give special tre atmen t to people who delib erate ly broke the 

law or voluntarily chose other political communities where the requirements of 

citizenship seemed more to their liking.

Those now outside the law because of their failure to fulfill responsibilities 

regarding military service during the Vietnam war do pose a special problem. It 

is a problem this country has faced before as were in which we were involved 

came to an end. There are good reasons—reasons relating to the health of our 

political community itself—th at have led us in the past to gra nt amnesty for 

some violations of the law during war time. Decisions about military service 

posed an especially acute problem in the p ast few years because of the natur e of 

the Vietnam War and the place of w ar itself in the last half of the 20th century. 

The imprecise legal sta tus of the Vietnam war and the you th of so many of the 

men involved in evasion of military service are additional reasons for considering 

considering this a special kind of law-breaking.

In other words, these men acted in an extrem ely complex moral and political 

situ atio n. Even the legal rules regarding the qualifications for C.O. status changed 

in the course of the war. Many very young men acted in confusion, despair and 

moral agony.

One can recognize all this withou t ascribing moral heroism to all evaders or 

resisters of military service. Many of the reasons th at led some to choose evasion 

over openly sta ted moral resistance do not require a respectful response by the 

comm unity.
856

Admittedly there are two principles essential to the health of our political 

community—equity and acceptance of the obligations of citizenship—which are 

endangered by some current proposals for amnesty. But those are two of the 

values upon which the WWWIC proposal is based.

When American participation in the Vietnam war ends, no purpose will be 

served by using the specter of imprisonment to keep nonviolent dra ft resisters 

ou t of the country if they wish to retu rn to the obligations and rights of full 

citizenship. No useful purpose will be served by forcing these men to live with the 

consequences of decisions perhaps made in haste and ignorance; no constructive 

purpose will be served by making p erm ane nt exiles of the m any young men who 

were conscientiously motivated to resist government policies, men whose commitment and moral concern could be a valua ble asset to this natio n.

The WWW IC proposal seeks to balance the important competing values 

involved. It outlines a course of actio n th at protects the political community 

while seeking to reknit a deeply divided society.

2. Alternate service is a punitive condition which violates the meaning of 

amnesty—“ to forget” .

An altern ate service condition for amnesty is not “ pun ishment” , bu t rat her 

recognition of the fact of political obligation in a democratic society. Men who 

deserted, went underground, or left the country denied their obligation to this 

society. Men with similar beliefs accepted their responsibilities, depending on 

the ir beliefs, by going to jail, doing alte rna te service as CO’s, or reluctantly 

enterin g the armed forces.

We do not propose alte rnate service as “punishment” for wrongdoing. We 

oppose stru cturing an alte rnate service program so as to make it a punitive 

requirement.

We do believe very strongly th at an individual who wishes to m aintain membership in a democratic political community has obligations under the law even when 

he believes that the comm unity is acting immorally or unjustly. That is why we 

propose pardons without further conditions for men who did not break their ties 

with this political comm unity and accepted the penalty of the law for their 

refusal to serve. That is why we would require alte rnate service for men who 

deserted, went underground, left the country, or otherwise refused their obligations to this society.

Why all this concern for law and political obligation? Because we believe t ha t a 

system of law provides channels for the nonviolent resolution and prosecution of 

conflict. Because we believe that law breaks down without a sense of political 

obligation. Because we recognize th at the situation in which each individual (or 

nation) acts without restriction on the basis of its own moral judgments is the 

classic definition of the state of war. Because we believe th at stren gthening 

concepts of law an d political obligation and extending them to the global situation 

are fundamental requirements for an end to war.

While the word “amnesty” does indeed come from the Greek amoestia—tran slated roughly as “to forget’-

’ or “to intentionally overlook”, this literary definition 

should not be confused with the legal definition of amnesty: “a general determination th at whole classes of offenses and offenders will n ot be prosecuted” .1

Amnesties may be “general” or “particular” ; tha t is, they m ay apply to whole 

classes of offenders or be limited to special groups. They are further classified as 

“absolute” or “conditional” ; th at is, “ They may impose no conditions or they may 

demand the performances of certain conditions before their provisions enter into 

legal effect” .

Thus, there is nothing logically inapp ropriate abo ut the general, conditional 

amnesty WWW IC proposes.

3. The democratic process will be destroyed if we allow people to break the law 

with impunity whenever th ey decide for themselves that a law is unjust.

We oppose the idea of selective obedience to the law. We support acts of genuine 

civil disobedience which are undertaken in a spirit of commitment to the society 

and willingly accept the penalty of the law for nonviolent symbolic disobedience. 

We recognize the thr eat posed to a nonviolent democratic political process by the 

erosion of a sense of political obligation. An amnesty proposal which recognizes 

the im portance of political obligation by requiring alte rnate service poses no such 

thr ea t in our view.

1

 Quotations from Encyclopedia of the Social Sciences.
857

On the other hand, the continued existence of a stable and reasonably unified 

political comm unity is threate ned today by extensive divisions and bitterness 

growing out of different attitudes toward this war. A sensitively designed and 

administered amnesty policy could help m eet that th rea t without underm ining the 

autho rity of the political process.

4. The policy you outline is ap parently unac ceptable to a large segment of those 

who would be affected. Many exiles would not retur n if altern ate service is a condition for amnesty. How can your plan help achieve the “ recon ciliation” you 

speak of?

The reconciliation we seek includes, but is not limited to, reuniting these young 

men with the society they left or resisted. We wish to reconcile and reunite the 

country. Doing so requires reconciling m any points of view, not just those of dr aft 

evaders a nd resisters. It is clear to us th at reconciliation will not occur without an 

amn esty policy. But unless tha t policy is wisely drawn, it could itself fur ther divide 

the nation.

Furtherm ore, reconciliation is only one of the values upon which our statem ent 

is based. We are also concerned abo ut law and the sense of political obligation which 

sustains it, respect for conscientious opposition to partici pation in war, and a 

measure of equal treatm ent for all who faced agonizing decisions about military 

service during the Vietnam war. Our proposal att em pts to balance reconciliation 

and these other values, all of which are im portant for those committed—as we 

are—to creating altern ativ es to w ar.

5. Your proposal does not spell out im portant details such as th e length of alte rnate service to be required and w hat kinds of work will be accep table. T hat leaves 

the door open for compulsory assignment to work camps, the Ecology Corps, and 

other quasi-penal or quasi-military situ atio ns—especially if Selective Service 

administers the program.

Our proposal is not intended to cover all the problem s legislation or a Presidential proclamation must address. We offer only a framework within which we 

believe a mnesty policy should be developed. We have, therefore, omitted m any of 

the specifics tha t will have to be pa rt of the actu al policy. We assume th at supporters 

of the ap proach we outline may differ on details. However, it is highly unlikely tha t 

anyone supp orting the values and goals of our statem ent would favor the compulsory work camp approach to altern ate service or ignore principled views of 

those opposed to milita ry service.

For the record: WWWIC favors a broa d inte rpretation of alt ern ate service to 

cover a wide range of constructive service opportunities including work for the 

United Nations and other internatio nal and extrana tion al agencies.

No one in WWW IC favors more th an a two-year alterna te service requirem ent 

for any of the catagories. No one favors any further condition for men who accep ted 

the pena lty of the law for an open and nonviolent refusal to serve.

6. The Amnesty Review Board you propose is unnecessary and unworkable. It 

would create a hopeless bu reaucratic mess because of the large num ber of cases to 

be considered.

If you believe, as we do, tha t conditional am nesty is the best policy to pursue, an 

ARB becomes essential. An amnesty policy will not administer itself. Someone will 

designate which specific employers qualify for the program. As explained, we 

would favor very broad categories of acceptable work in the inte rest of the community. Records must be kept to certify when the conditions for amnesty have 

been met. Carrying out these and other necessary functions will be a majo r and 

complicated task b ut by no means an impossible one. We believe the creation of an 

Amnesty Review Board is preferable to having the Justice Departme nt or Selective Service administer the program.

No one knows how many men are covered by the categories in our proposal. 

Estimates range from 10,000 to 300,000 and higher. It is even more difficult to 

determ ine how many would retu rn and apply for amnesty. Whatever the number, 

we believe th at the principles involved are sufficiently imp ortant to warrant the 

creation of an Amnesty Review Board.

7. If we could grant unconditional amnesty a fter the Civil War to people who 

had been engaged in military activity against the U.S., we can certainly grant 

unconditional amnesty today to men who simply refused to fight in a war almost 

everyone now believes was a mistake at b est and a crime in the eyes of many.

The historical analogy is faulty. During th e Civil War, there were two separate 

de facto political structures with conflicting laws. The people involved numbered in 

the millions, not the thousands. The Civil War was an internal conflict, not an

31 -6 58 — 74----- 56
858

external one. Any other approach would have made reunifying the country even 

more difficult- In other words, the situation we face today differs radically from 

the situation following the Civil War.

The three most applicable historical precedents seem to us to be Twen tieth 

Century extern al wars. No general amnesty was granted after World War I 

although some violators were pardoned ten years or so after th e war ended. President Truman gran ted pardons to 1,500 WW 11 dra ft violators on criteria tha 

would disqualify most of those covered by our proposals. No amnesty was 

gran ted after the Korean War.

Judged by these precedents, the WWWIC proposal is generous. It strikes an 

('quitable balance between the needs of the men involved and the needs of the 

political community.

8. Granting amnesty to men who evaded the dra ft during the Vietnam War 

would set a very dangerous precedent. It would make raising an army in the 

future very difficult and could cripple our ability to meet military crises. Individuals could evade their responsibilities, secure in the knowledge that all would be 

forgiven when th e danger had passed.

We can offer no assurances that the granting of so broad an amnesty as we propose will not affect the ability to conscript men for similar military operations in 

the future. But we should also remember th at damage done to the morals and 

effectiveness of the armed force? (and citizen attitudes toward military service) 

has been primarily a consequence of the war itself.

Amnesty policy offers the occasion to consider an alternative approach to our 

international responsibilities, to consider our commitment to building transna tional 

peacekeeping institutions which could bring a moral and political author ity to 

situa tions like Vietnam that our unilateral military intervention lacked. Our 

primary concern in WWWIC is the world security which would result from the 

creation of alternativ es to war. While we do not ignore the realities of world 

politics that lead m any to insist on a fully developed American military capability 

in the interim, our goal is to develop alternativ es to reliance on national military 

power for security. The Amnesty proposal we suggest includes the idea th at 

men who evaded or refused military service could serve their community—and 

all others—by helping develop those alternativ es in agencies like the proposed 

World Peace Brigade, the new U.N. Disaster Relief organization, U.N. Voluntary 

Service and projects like Volunteers in Asia. Special funding by interested agencies 

could extend such opportunities and help tie the idea of comm unity obligation 

to growth toward a world without war.

9. Talk of amnesty creates the impression th at draft-evaders, resisters, and 

deserters did something wrong. They were not wrong, the government, was wrong 

in prosecuting an immoral and unjust war. The government, for once, should 

admit that it made a mistake and welcome back without condition those who had 

the moral courage to resist this war.

The morality or wisdom of U.S. participation in the Vietnam war is only 

peripherally relevant to a discussion of amnesty. Morally sensitive people can 

come to different judgments on th at question. If gaining agreem ent on amnesty 

in this country requires accepting political views which see America as the only 

villain in the Vietnam tragedy, amnesty is very unlikely. The primary objective 

of a few people arguing for amne sty appears to be convicting America as a war 

criminal. A thoughtful and fair discussion of war guilt which is not a politically 

motivated attem pt to whitewash or convict any of the parties to the conflict 

could be a very imp ortant contribution to work for an end to war. Amnesty 

need not await the outcome of such a discussion.

In our view, few in this society are free of the moral stain of this war. Not 

the adm inistratio n and military, who consistently failed to grasp the political 

nature of the conflict and, therefore, persisted in a futile and destructive application 

of milita ry technology. Not the peace movement, which consistently failed to go 

beyond “ getting America ou t” to develop credible alte rnative policies to end the 

killing and, in some cases, simply transferred emotional allegiance to the other 

side of the war. Not the Congress, which consistently funded our military activity 

in Southeast Asia. Not the draft-evaders motivated by self-interest who simply 

wanted to avoid discomfort or inconvenience and, in many cases, acted in ways 

th at had very little to do with opposition to war. Not even the exiles motiv ated 

by conscientious war-resistance who announced a position they believed to be 

moral, then gave up their best opportu nity to help effect change by divorcing 

themselves from this political community.

In short, wre question easy moral distinctions with regard to this war. We 

rejec t the characterization of the acts of all draft evaders and resisters as “morally
859

coura geous” . We oppose attempt s to assess the mor ality of America’s acts in 

isolation from the acts of the NLF and Hanoi. We question the attempt of those 

who, in focusing on Ame rica’s guilt, would strengthen a spirit of bitterness and 

recrim ination which amn esty policy should seek to overcome.

We do not argue tha t the “slate” should be “ wiped clean” , tha t all should be 

forgotten. Too much has happened from which we must learn if we are to avoid 

futur e Vietnams and define an inter natio nal role for the United States that could 

help end war. But neither do we believe tha t exiles and deserters should be made 

pawns in an atte mp t to affix blame for the trag edy of Vietnam.

Stateme nt s of Bishops and U.S . C atholic Con fe re nc es

N A TIO N A L C O N FER E N C E O F CATH OLI C B IS H O PS, O CTO BER 21, 1971 (E X C E R P T E D )

In restatin g these recommendations, we are aware tha t a number of young 

men hav e left the cou ntry or hav e been imprisoned because of their opposition 

to compulsory mil itary conscription. It is possible that in some cases this was 

done for unwor thy motives, but in general we must presume sincere objections 

of conscience, especially on the part of those ready to suffer for their convictions. 

Since we hav e a pasto ral concern for their welfare, we urge civil officials in revisin g the law to consider granting amn esty to those who have been imprisoned 

as selective conscientious objectors, and giving those who have emigrated an 

opp ortu nity to return to the country to show respo nsibility for their conduct and 

to be ready to serve in other ways to show tha t the y are sincere objectors.

Catholic State ment on A mn esty, Submitted by Edward McGowa n, S.J., 

Director, Project Reconcile

N A TIO N A L C O N FE R E N C E O F CATH OLIC B IS H O PS, N O V EM B ER , 1971 (E X C ER PTE D )

Finally , we recognize a clear need at this point in history to urge upon al 

Americans a spirit of forgiveness and reconciliation. We recall tha t a similarly 

critical moment in American history, Abra ham Lincoln urged his countrymen to 

act “ with malice towards none, with charity towards all” . We inv ite our fellow 

Americans to let these words guide new efforts to heal wounds in our divided 

society and to unite our country in the years after the war in Southeast Asia.

We speak with special concern for those who hav e borne the heaviest burden 

of this war: the young men who chose conscientiously to serve in the Armed 

Forces, many of whom lost life or limb in this conflict. We wish to express our 

profound sym pathy to the wives and families of the soldiers who have died in 

Southeas t Asia. We express our profound concern for our prisoners of war and 

their families and promise our praye rs for the prisoners’ welfare and release. And 

on behalf of the returning veterans we urge stro ngly tha t the Government increase the present benefits and educational opportunities afforded by the G.I . 

Bill, and tha t it create new program s of drug rehabilitation, voca tion al train ing 

and job placement wherever necessary.

Those who in good conscience resisted this war are also subje cts of our genuine 

pastoral concern. Th ey too must be reintegrated as fully as possible into our 

society and invited to share the opportunities and responsibilities of building a 

better nation. Hence we repeat our plea of October 21, 1971 tha t the civil auth orities grant generous pardon of conv ictions incurred under the Selec tive Service 

Act, with the understanding tha t sincere conscien tious objec tors should remain 

open in principle to some form of service to the comm unity. Sure ly a cou ntry 

which showed compassion by offering amn esty afte r the Civil War will want to 

exercise no less compassion today.

N A TIO N A L C O N FER E N C E OF CATH OLI C B IS H O PS, N O V EM B ER 16, 1972 (E X C E R P T E D )

It is vit all y important that Americans now turn their attentio n to the task of 

reconciliation not only in Southeast Asia but also in our coun try. This war can 

well leave a residue of bitterness which could poison our national life for years 

to come. Thi s must not be allowed to happen. We must instead seek to resolve 

our differences in a spirit of mutu al understanding and respect.

Special attentio n must be given to the you ng people of our nation whom the 

war has profoundly affected in so man y ways , material, psychological, and spirit-
860

ual. Our returning veterans and espec ially the wounded and the prisoners of war, 

must be given eve ry possible consideration and assistance to enable them to 

reintegrate their personal and professional lives into civilian society. Our sincere 

compassion should be extended to the families of men killed in the fighting. The 

dead, the maimed, and the missing in action should have constant remembrance 

in our prayers. Those who continue to serve in the military should also receive 

the moral and material support of the nation.

In a spirit of reconciliation, all possible consideration must be given to those 

young men who, because of sincere conscientious belief, refused to particip ate in 

the war. A yea r ago, we urged tha t the civil authorities grant generous pardon of 

conv ictions incurred under the Selective Service Act, with the understand ing tha t 

sincere conscientious objectors should remain open in principle to some form of 

service to the com munity .” (Resolution on Southeast Asia, Nationa l Confere nce 

of Catholic Bishops, November, 1971). We again urge government officials and 

all Americans to respond in this spirit to the conspicuous need to find a solution 

to the problems of these men. Generosity represents the best of the American 

trad itio n and should chara cterize our response to this urgen t challenge.

D IV IS IO N OF WOR LD JU S T IC E & P E A C E , U .S . CA TH OL IC C O N F E R E N C E , N OVEM BER 1, 

1972

The question of amn esty for war resisters in prison or exile has been given 

increasing attention in recent weeks by candidates for the nation ’s highest office. 

While we welcome any thing which adds to the public understanding of this important public issue, appeals to emotion and nationalistic sentiments in the heat 

of a politic al campaign can have the opposite effect and act ually obscure the 

human and moral dimensions tha t should be given prio rity. To avo id this, we feel 

it is app ropriate and adv isab le to issue this reminder tha t the Nationa l Conference 

of Catholic Bishops has tak en a public stand on the amn esty issue in a stateme nt 

appr oved by more than two-t hirds of the bishops on October 22, 1971. Th at 

state men t read in p art as fo llows:

“ * * * We are aware that a number of y oung men hav e left the country or have 

been imprisoned because of their opposition to compulsory mil itar y conscription. It 

is possible tha t in some cases this was done for unw orth y motives, but in general 

we mus t presume sincere objections of conscience, especially on the part of those 

ready to suffer for their convictions. Since we hav e a pastoral concern for their 

welfare, we urge civ il officials in revising the law to consider gran ting amnesty to 

those who have been imprisoned as select ive conscientious objectors, and givin g 

those who have emigrated an opportu nity to return to the cou ntry to show their 

respo nsibility for their conduct and to be ready to serve in other way s to show that 

they are sincere objectors.”

It is not our intention to “ tak e sides” in the ongoing political campaign but, 

rathe r, to do what we can to keep the discussion of this extr eme ly sensitive and 

emotion-charged issue on a plane worthy of democratic political discourse.

O PE N IN G STA TEM EN T OF JO H N CA RDIN A L KRO L, P R E S ID E N T , B E F O R E N A TIO N A L 

M EET IN G OF CA TH OL IC B IS H O PS N OV EM BER 13, 1972 (E X C E R P T E D )

God willing, the long and trag ic conflict in S outheast Asia is apparently drawing 

to an end. It is time for Americans to address them selves to the challenges and 

opportunitie s of reconstruction and reconc iliation not o nly in Vietnam b ut here at 

home as well. We pra y ferv ently th at the American people will do so in the sp irit of 

Chr ist himself. We pra y tha t the animosities, hostilities, and recrimin ations will 

yield to a common effort to promote peace and brotherhood in our own country .

In this task a special measure of consideration mus t be given to the needs of our 

young people, so profo undly affected spir itually and ma teriall y by the war. Our 

retur ning veterans, the hea lthy and wounded, and our prisoners of war, must be 

given special assistance in reestablish ing themselves perso nally and professionally 

in civilian life. The nation can do no less for those who respond genero usly to 

its call.

Bu t there is also need to blend chari ty with justice in considering the situation of 

those young men who for reasons of sincere conscientious belief refused to par ticipate in the war. A yea r ago, expressing our “ genuine pastoral concer n” for these 

young men, we recommended tha t “ the civ il auth orities gra nt generous pardon to
861

conv ictions incurred under the Selecti ve Service Act, with the unde rstan ding tha t 

sincere conscientious obje ctors should remain open in principle to some form of 

service to the com munity .” If, as we all hope and pray, we are now mov ing into a 

period of lasting peace, it is incumbent on us as a people to approach the tas k of 

healing our internal divisions and build ing this peace in a spirit of gene rosity and 

mutua l respect.

STA TEM EN T OF TH E VER Y REV . B ER N A R D FL ANAGAN, RO MA N CATH OLIC B IS H O P,

D IO C ESE OF W O R C ESTER , M ASS ., B E F O R E K EN N ED Y SU BCO M M IT TEE H EA R IN G S

ON AM EN ST Y

Thank you very much, Senator. I am honored by the opp ortunity to speak 

before this comm ittee. You have alr eady introduced me, so I thin k I can omit the 

first paragrap h of my prepared state men t, and simply say that I speak here as a 

pasto r concerned about the wounds which this tragic war has inflicted upon our 

country and its people, particularly upon its you th. In this cap acity I am appreciative of the efforts which are being m ade to explore and come up with an answer 

to the vexing question of amn esty for those who have gone into exile, are in jail, 

or are livin g u nderground because of a conscientious objec tion to the Vietnam war.

For you r inform ation, I wish to cite stateme nts which hav e been made by the 

Cat holic Bishops of the United States with referen ce to conscientious objection, 

which is the basis on which many of these y oun g people ha ve either gone in to prison 

or exile, and which to my mind is th e jus tifyin g cause for now grantin g them amnesty . Let me jus t cite two or three pert inen t state ments of the bishops, and let 

me say tha t while I concur ful ly in these, that I speak here tod ay not as a representative of the Nat iona l Conference of Bishops, but as an indiv idua l, and as I 

said at the beginning, as a concerned pastor of souls.

In Nove mber, 1968, in their pastoral letter, “ Hum an Life in Our Day ,” the 

bishops said:

“ We therefore recommend a m odification of th e Selective Service Act, mak ing it 

possible although not easy, for so-called Sele ctive conscientious obje ctors to 

refuse— withou t fea r Of imprisonment or loss of citize nship— to serve in wars which 

the y consider unjust, or in branches of the service, for example, the Strategic 

Nuc lear Forces, which would sub ject them to the performance of actio ns con trary 

to deeply held moral convictions abo ut indiscriminate killing. Some other form of 

the human commun ity should be required of those so exem pted .”

In October of last year the bishops issued a furth er declaration on conscien tious 

objection and selective conscientious obje ction . In this statem ent the y reiterated 

their stand, par ticu larly with respect to se lective conscien tious objection , and went 

on to say :

“ We are aware tha t a number of you ng men hav e left the cou ntry or h ave been 

imprisoned because of their opposition to compulso ry milita ry conscription. It is 

possible in some cases that this was done for unw orth y motives, but, in general, 

we must presume sincere obje ctions of conscience, especially on the par t of those 

ready to suffer for their conv ictions. Since we have a pastoral concern for their 

welfare, we urge civil officials, in revising the law, to consider grantin g amn esty to 

those who hav e been imprisoned as selective conscientious ob jectors, and g ive those 

who hav e emigrated an opp ortunity to retur n to the country , to show responsibility for their conduct, and to be rea dy to serve in other ways to show tha t the y 

are sincere objecto rs.”

And then jus t last Nov emb er the bishops again returned to the question of 

amnesty in a resolution oij. the larger question of the Southea st Asia conflict. 

In this they urged that the “ civil authorities grant generous pardon of convictions 

incurred under the Sele ctive Service Act , with the unde rstan ding tha t sincere 

conscien tious obje ctors should remain open, in principle, to some form of service 

to the com mu nity.”

As a bishop who particip ated in the formulatio n and release of these statements, 

I concur in everythin g which was said. I perso nally and stro ngly supp ort the 

proposal for some form of legislation or Exe cutive order which would grant 

amn esty to these men and prov ide altern ative service opportunities for them. 

I would further adv oca te that this service should not in any way be pun itive bu t 

rather should be a form of service beneficial both to the individu al and to the 

community. The men who fulfill this honorable service should, I believe, have the 

same GI benefits as those provided for men who serve in the armed forces. I also 

want to express concern, from a pastoral point of view, to simply raise the question,
862

for those men who hav e received less than an honorable discharge from the 

military service for various causes, which may hav e inflicted some injustices upon 

them.

We must see that the question of amn esty is a crucial and special issue at this 

time in our national histo ry. As the bishops said in their 1968 pasto ral letter which 

cit ed :

‘'The war in Vietnam typifies the issues which present and futu re generations 

will be less willing to leave entirely to the normal political and bure aucratic 

processes of natio nal decisionmaking. It is not surprising tha t those who are most 

critical, even intempe rate in their discussions of war as an instrument o f national 

policy or as a ready means to the setting even of wrongs, are among the young; 

the burden of killin g and dying falls principally on the m.”

If I were a younger man today, in ligh t of my reflections on the imm orality of 

this war which has gone on now for 10 years and has wreak ed havoc beyond all 

prop ortionality for good, I belie ve tha t I could find myself in the same position 

in which these you ng men find themselves today.

Some years ago, President John F. Ken nedy wrote, “ Wars will exist until the 

distant day when the conscientious obje ctor enjo ys the same repu tatio n and 

prestige as the warrior does to da y.”

I belie ve tha t what this implies is a wholly new conc ept of patriotism based on 

preservation of the planet rather than on nation al defense. It is a concept which 

needs to be fostered and made acce ptab le at a point in h isto ry when it would seem 

that the very survival of the plan et earth is at s take.

Thank you very much.

STA TEM EN T O F CATH OLIC B IS H O P ED W ARD HEA D OF B U FFA LO , N .Y ., JU N E 1973

1, as well as all the U.S . Bishops, am aware tha t a number of young men left 

the cou ntry or have been imprisoned because of their opposition to compu lsory 

military conscription. It is possible that in some cases this was done for unworthy 

motiv es, but in general we must presume sincere objec tions of conscience, especially on the part of those ready to suffer for their conviction s.

Since we have a pastoral concern for their welfare, we urge civil officials in 

revising the law, to consider grantin g amnesty to those who have been imprisoned 

as selective conscientious objectors, and giving those who hav e emigrated an 

opp ortu nity to return to their country to show their responsibility for their conduct and Io be ready to serve in other ways to show that they are sincere objectors.

It is vit ally impo rtant tha t Americans now turn their attention to the task of 

reconciliation not only in Southea st Asia but also in our country.

This war can well leav e a residue of bitterness which could poison our national 

life for years to come. This must not be allowed to happen. We must instead seek 

to resolve our differences in a spirit of mutual understanding and respect.

In a spirit of reconciliation, all possible consideration must be given to those 

you ng men, who because of sincere conscientious belief, refused to particip ate in 

the war.

A yea r and a h alf ago we urged t ha t the civil authorities grant generous pardon 

of conv ictio ns incurred under the Selective Service Act, with the understan ding 

tha t sincere conscientious objectors should remain open in principle to some form 

of service to the community.

We urge government officials and all Americans to respond in this spirit to the 

conspicuous problems of these men. Generosity represents the best of the American 

tradition and should characterize our response to thisj irg en t challenge.

S TA TEM EN T O F T E R E N C E C A RDIN A L CO OK E, A R C H B IS H O P OF N EW YORK, 

A PR IL 22, 1973

In a special wa v this Eastert ime , we consider the difficult situation of the 

different groups of young men who refused to serve in the armed forces. Is it 

too much to hope tha t our nation ’s leaders will l>e able to balan ce a genuine 

respect for the laws of our land with true compassion in the cases of those who for 

sincere reasons would not serve in the military? We pra y that the y will discover 

a wa y for those you ng men to offer a fitting sub stit ute in service and to return to 

their homes.
863

STA TEM EN T OF B IS H O P DAV ID F. C U N N IN G H A M , A PR IL 11, 1! 73

The last days of Lent 1973 are tolling a w arnin g that this allotted time of grace is 

running o ut on us. The Holy Spirit in the Lit urg y speaks to us more urgently with 

the words of Christ. “ If you will be my disciples, tak e up your cross and follow 

me.”

Discipleship with Christ, even through the Cross, envelops our souls with hope 

and peace. In the intima cy o f this relationship we come to know the true mission 

of Christ. He is our Reconciler before God the Fat her — He is o ur Sav ior from sin 

and death. In Him we find the solemn pledge of resurrection given at the tomb of 

Laza rus, “ I am the ressurrection and the life. He wrho believes in me and is bap ­

tized shall hav e everlasting life and I will raise him up at the last d ay .”

The a ction s of Christ tha t m ost mqved the crowd s pressing about Him with awe 

and at times with dism ay were His freq uent words, “ You r sins are for given,” 

“ Go and sin no more.”

He cured all who were brough t to Him, diseased, blind, deaf, crippled. His 

mer cy and compassion mov ed Him to miracles for the suffering, but the greatest 

sickness was sin tha t ravaged a man ’s soul in a tot al separation from the love of 

His Father. To bring divin e forgiv eness, to tak e aw ay the sins of the world as the 

paschal lamb of God, was wh y He had come into the world. His sad look of pardon 

moved Peter to tears; the repentance of Dismas brought a quick promise, “ This 

da y you will be w ith me in pa radise” and from the cross He begged forgiveness not 

only for his executioners, but for all men through all time: “ For give them Father 

for the y do n ot know wha t the y are doin g.”

Tim e and time again everyone of us has soug ht forgiveness for our sins and no 

ma tter how grave or numerous, we rose from our knees with new hopg and love in 

the words, “ I absolve you from you r sins.” Div ine compassion has never been 

denied us.

It seems to me t ha t we who hav e been forgiven much, should in turn be quick to 

forg ive others. Ther e are two cases in this reference that now cry out to the 

American people for such human compassion.

The people of Vietn am, both North and South , whose villages and cities were 

bombed, the natural grow th of their sustenance defoliated, their children and 

parents burned with napalm, have a claim upon us at least in Christian charity 

for aid during their reconstruction days.

I belie ve firmly tha t our Christian faith requires us to embrace in cha rity and 

economic aid the people of both Hanoi and Saigon. The words of John have a 

special significance. “ If a man who was rich enough in the world’s goods saw tha t 

one of his brothers was in need, but closed his heart to him, how could the love of 

God be living in him?” (I John 3, 17).

The second case of national importance are the young men who in sincere 

conscience fled the country rath er than par ticipate in wha t to them was an immoral war. The righ t of conscience is a sacred, personal matter that is recognized 

by both the courts and legisla tors, par ticu larly when it involve s those who refuse 

to have any part in tak ing the life of anoth er, even of the un born child b y abortion.

The follo wing resolution on amnesty was passed by the United Sta tes Bishops 

at the annual meeting in Nove mber, 1972:

“ In a spir it of reconciliation, all possible consideration must be given to those 

you ng men who, because of sincere conscientious belief, refused to participate in 

the war. A yea r ago we urged ‘th at the civ il authorities grant generous pardon of 

conv ictions incurred under the Sele ctive Service Act, with the understan ding tha t 

sincere conscientious obje ctor s should remain open in principle to some form of 

service to the com munity .’ We again urge gove rnment officials and all Americans 

to respond in this spirit to the conspicuous need to find a solution to the problems 

of these men. Gen eros ity represents the best of the American tradition and should 

characterize our response to this urgent challenge.

“ Generosity must also mark our particip atio n in efforts to rebuild the wartorn 

nations and societies of Southeast Asia . . . T he dram atic and successful programs 

of aid and reconstruction carried out by the United S tates follow ing World War II 

prov ide a model for wha t is demanded of us now. We must be unstinting in the 

expe nding of our moral, material and techn ical resources and skills on behalf of 

the people of Southea st Asia who hav e suffered so grie vou sly.”

Thi s resolution is a sincere effort by the bishops to present the cause of these 

jo un g men to the American people. I strongly support it and I hope that in the 

spirit of Ch rist’s compassion and reconciliation, purchased for us by His death, 

our people will also be compassionate and merciful.
8G4

STA TEM EN T O F A R C H B IS H O P D A N IE L E. S H E E H A N , O F OMAHA, SU M M ER 1973

I full y subscribe to the Stat eme nt issued by the Nat ional Conference of C ath olic 

Bishops in Novemb er of 1971 as follows:

“ Those who in good conscience resisted this war are also subjects of our genuine 

pasto ral concern. Th ey too must be reintegrated as fully as possible into our society 

and invited to share the opportunities and responsibilities of building a better 

nation. Hence we repe at our plea of October 21, 1971 tha t the civil authorities 

gra nt generous pardon of conv ictions incurred under the Selecti ve Service Act , 

with the understanding tha t sincere conscientious objectors should remain open 

in principle to some form of service to the community. Surely a cou ntry which 

showed compassion by offering amn esty after the Civ il War will want to exercise 

no less compassion to da y.”

R eso lu tio ns an d Sta tem en ts of U.S. D io c eses

R ESO LU TIO N ON AM NES TY PASSED BY T H E PE O R IA P R IE S T SE N A T E FO R SUBM IS SIO N 

TO T H E 1974 N FP C C O N V EN TIO N , JA N U A R Y 8, 1974

Whereas the question of who was right or wrong concerning the Vietnam war 

should be left aside in discussing amnesty, since any atte mpt to blame would 

shift the discussion from one of amnesty (which is essentially a “ forg etting ” ) to 

one o f either exoneration or pardon, depending upon how the one judging views 

the morality of the war, and

Whereas i.t is impractical, if not impossible, to determ ine the motivation of 

either the war resisters or the war makers, and

Whereas in regard to the resisters, no discrimination should be made on the 

basis of whether the resister is a draft, evad er or a deserter, since the difference w as 

often only a matter of “ timing,” and

Whereas any alte rna tive service requirement would onl y be in the nature of a 

vindictive penalty, and would prove unproductive in p ractice because of its forced 

chara cter, and

Whereas it is only the youn g, and in disproportionate numbers among them, 

the non-white and those of low economic estate, who have been and are being 

punished for all that has happened in our Vietnam war; Now, therefore, be it

Resolved, Th at we call upon the President and the Congress to gran t an immediate universal and uncon dition al amnesty on the basis of neither commendation 

nor condemnation for war resisters or war makers, but bas ically because we value 

the need for reconciliation as more importa nt than the prosecution of war-related 

illegal activ ity , and because we valu e the need for healing wounds abov e the 

tem ptat ion to ignore them or rub salt in them ; and be it further

Resolved, Th at we encourage the member councils of this Federation to engage 

in an inten sive program of education in order to sensitize their constituencies to 

the dimensions of the question of amnesty, including but not limited to: Setting 

up diocesan and parish information programs, forw arding information and 

opinion to appropriate executive and legislative gove rnm enta l offices, raising the 

question in the print, audio and visual media, as well as through wha tever other 

channels may be available.

SEN A T E OF P R IE S T S , T H E A RCHD IO CESE O F N EW A R K , N OV EM BER 5, 1973

Resolved, That the Senate of Priests, conscious of its role in moral leadership and 

bearing in mind that, neither vengenance nor vind ictiv eness should be borne 

against the sons of our own people, does endorse amnesty for all and tha t this 

endorsement be sent to the Congressional delegation of this Sta te and to the 

President of the United States in the hope tha t amn esty might become the enacted 

poli cy of this country.

STA TEM EN T OF B IS H O P AN D P R IE S T S , D IO C ESE O F R O C H E ST ER , N .Y ., FEB R U A R Y 1973 

(E X C E R P T E D )

Tn our own country we call upon the gove rnment, business, and all citize ns to 

give eve ry possible consideration and assistance to the veterans of the Vietnam 

era in their efforts to reintegr ate their personal and professional lives into civilian 

soci ety.
865

We urge government officials and all Americans to respond to those you ng men 

who hav e refused to particip ate in this war for sincere reasons of conscience. In a 

spirit of reconcilia tion and with sincere respect for their witness to conscience we 

ask tha t amn esty be granted them.

D IO C E SE OF OAK LA N D, SOCIA L JU S T IC E COM M IS SI ON, JA N U A R Y 15, 1973

The Cat holic Bishops of the United Sta tes in a stateme nt “ Resolution on the 

Imp eratives of Peace ’’ issued after their annu al meeting in Nov emb er 1972, 

reminded the faithful, “ It is vita lly importa nt that Americans now turn their 

attentio n to the task of reconc iliation not only in Southea st Asia but also in our 

country .” Th ey reiterated their plea of 197i “ that the civil authorities grant 

generous pardon of conv ictions incurred under the Selecti ve Service Act, with the 

unde rstan ding th at sincere conscientious objectors should remain open in principle 

to some form of service to the com munity .” Th ey th us provided a base for Ame rican Catholics to consider the legal, social and religious aspects of amnesty for 

those who in refusa l of milita ry serv ice becam e dra ft resisters and went to jail, 

went underground, or emigrated to another country. The question of amn esty 

also includes those civilians who nonv iolen tly broke the law and servicement, who 

deserted the militar y in protest of Ame rica’s involve men t in the Vietnam conflict 

and also those men who received less than honorable discharges because of 

conscientious disobedience to militar y authority .

It is leg ally possible for amnesty to be granted to all these categories, with or 

withou t conditions. The Encyclopedia of Social Sciences defines amn esty as “ a 

general determination that whole classes of offenses and offenders will not be 

prosecuted.” The techn ical term for amnesty as applied to those already convicted of breakin g the law is “ pardon.” Amn esty trad itio nally has been granted 

mainly bv the President under Art. II, Sec. 2 of the Conslitulion, but Congress 

also has the power to ena ct amnesty legislation.

It is like ly that legal amn esty will not suffice to avert the bitternes s tha t could 

poison our nation as a result of our nation ’s involvement in the Indochina war. 

Indeed, reconciliation ma y well be the social task of our time. For this reason the 

bishops urged tha t gene rosity characterize our response to the challenge of reconciling yout h, returnin g veterans, espe cially the wounded and prisoners of war, the 

families of men who died, those who continue to serve in the mi litary as well as 

those who could come under the amn esty categories mentioned above.

Liv ing in a pluralistic soci ety, the Christian must consider the legal and social 

mores of his t ime and bring to them an added dimension, “ Judg e n ot and you will 

not be jud ged : condemn not and you will not be condem ned; forg ive and you will 

be for given” (Lk. 6:37). A respect for the freedom of conscience of both partic ipants and non-participants in the war, a regard for Christian values, and the need 

to go forward in the work for a world withou t war will lead Catholics to a conscientious decision in regard to condition al or unconditional amn esty. It is the 

judgement of this Commission tha t a no amnesty position is inconsistent with the 

Gospel valu es as well as with a wise governmental policy to re-unify' the nation 

after the turbulen ce caused by the war.

For the message of Christ to becom e operative in our society , indiv idual 

Christian s as well as the Chu rch as an institution must influence the American 

democratic process. Such action is not the Church inter fering in the electroal 

process or power struggle, but the Chu rch speaking for the welfare of humanity. 

It is hoped that Christian s of the Diocese of Oakland will suppor t a conditional or 

uncon dition al amn esty and conv ey this to their political leaders, and tha t Cat holic 

organizations and action groups will do the same.

IO W A CA TH OLIC C O N F E R E N C E , FEB R U A R Y 1973

In a spirit of brotherhood, and with genuine concern tha t the Vietnam war be 

ended at home as well as abro ad; that the moral and psychological wounds this 

war has inflicted on our soc iety be healed, we stro ngly urge that amnesty be 

extended to all those you ng men who refused or lea sed to fight and bear arms for 

United Sta tes in this trag ic conflict.

In overwhelming numbers the you ng men in question, those who have refused 

to fight in this war, hav e done so as a m att er of conscience, and their decisions have 

contributed to the awakening of the conscience of a whole people. At an early and
866

unpopular time, these young men concluded what most Americans today hold: 

this war is wrong. Can we now, in good conscience, punish them for having 

realized in antic ipation what most of us now’ know?

We cannot cast a balance of patriotism or of sacrifice; only God can do this. We 

can, though, do what the American Catholic Bishops have done: urge civil officials 

to grant amnesty. We can urge th at President Nixon do what American presidents 

in the past done: heal the wounds; immediately restore these young men to their 

full rights as American citizens.

D IO C E SE O F RIC H M O N D P R IE S T ’S C O U N C IL , O CTO BER 1972

We concur with the U.S. Bishops’ state ment on S.E. Axia of Nov. 1972 wherein 

they sta ted th at “those who in good conscience resisted this war * * * must 

too be reintegrated as fully as possible into our society and invited to sh ire the 

opportunities and responsibilities of building a better nation.” We therefore 

recommend that this Priests ’ Council, with the USCC, actively engage in the 

lobbying efforts in Washington to attain a just and generous declaration of 

amnesty for all those men and women who have been prosecuted or face prosecution by civilian or military courts for any alleged offenses arising out of morally 

justifiable resistance to this War.

R IC H M O N D, V A ., PE A C E AND JU S T IC E C O M M IT T EE, S PR IN G 1973

“ You th at used to be so far apart from us have been brou ght very close, bv the 

blood of Christ. For He is the peace between 11s, and has made the two into one 

and broken down the barrier which used to keep them apa rt, actually destroying 

in His own person the hostility caused by the decree of the law.” (Paul to the 

Ephesians)

Across America and Canada thousands of husbands, wives and families are 

sepa rated and isolated because of the conscription of conscience th at prevailed 

during the war in Indochina. Many waged tha t war, many in good conscience, many 

with no conscience. Many refused to wage th at war, many in good conscience, 

many with no conscience.

As Christians we reverence the teaching of Jesus: “Forgive us our trespasses 

as we forgive those who trespass against us.” (Jesus, Matthe w G)

As Roman Catholics we respect the teaching of bishops:

“We recognize a clear need at this point, in history to urge upon all Americans 

a spirit of forgiveness and reconciliation. We recall tha t at a similarly critical 

moment in American history, Abraham Lincoln urged his countrymen to act 

‘with malice towards none, with charity towards all.’ Surely a country which 

showed compassion by offering am nesty after the Civil War will want to exercise 

no less compassion tod ay.” (National Conference of Catholic Bishops)

“The father said: ‘My son, you are with me always and all I have is yours. 

But it was only right we should celebrate and rejoice, because your b rother here 

was dead and has come to life; he was lost and is found.’ ” (Jesus, Luke 15)

This statem ent is made in conjunction with National Amnesty Week by 

the Peace and Justice Committee of the Commission on Social Ministry of the 

Diocese of Richmond.

p r ie s t ’s SEN A T E O F T H E D IO C ESE O F SY R A C U SE, N .Y ., A PR IL 1973

God alone knows what finally determines the actions of men, and all of us 

know th at few of us do anything for one reason alone. Therefore we feel it unwise 

to att em pt to judge the motives of those to be given amnesty, just as we do not 

presume to judge the motives of those who served in the military. Nor do we feel, 

as do some, that draft evaders and deserters deserve different treatm ent. We feel 

th at no one should be penalized simply because I is eyes were opened after entering 

the military service. The essential difference between the dra ft evader and the deserter is only a m att er of timing.

As things of God cannot be rendered to Caesar, no one can surrender his conscience to the State. For con tuses religious bodies have affirmed an individual’s 

moral right to refuse participation in a particular war in which the claims of his 

government and those of his conscience conflict. Yet despite insistent pleadings, 

Congress has steadfastly refused to provide for selective conscientious objection. 

This failure has been a m ajor reason for the moral crisis of tens of thousands who 

saw themselves with no choice bu t exile or prison. Amnesty w’ould be a belated 

recognition of a right they should never have been denied.
867

Often, the armed forces uses th e less than honorable discharge as a means of 

getting rid of those they consider “undesirable.” These too, are victims of the war 

and should not be scarred for life.

In simple terms, we see amnesty, n ot as a m atter of forgiveness, but as a “ blessed 

act of oblivion,” the law’s own way of undoing w hat the law itself has done.

Amnesty, would demonstrate th at America is still capable of a communal 

moral act. It would be bitte rly ironic were we to make peace with the peoples of 

China and Southeast Asia bu t persist in vindictiveness toward those of th e young 

generation who refused to share in the brutalities of th e war.

By seeking amnesty we do no t dishonor the consciences or th e acts of those who 

fought and died. Our hope is that by abstaining from all punitive acts against those 

who refused to pa rticipate in it, we shall affirm a spirit of hum anity that will sta nd 

the nation in good stead as it makes peace with itself and with the world.

S TA TEM EN T ON AM NES TY BY TH E PR IE STS* ASS OCIA TIO N O F B U FF A L O , A PR IL 1972

The Priests’ Association of Buffalo has on many occasions spoken out on the 

universal and absolute right to life. We feel it is necessary to speak once again to 

the question of life by addressing ourselves to the issue of amnesty. We see this 

primarily as a religious issue because it involves justice for war resisters who chose 

prison or exile ra the r than service in an immoral war. It is a religious issue because 

for years religious bodies have affirmed the moral right of an individual to refuse 

to partici pate in a particular war where claims of government and claims of 

conscience conflict.

There are thousands who have resisted the draft law; there are thousands who 

have deserted the military; there are thousands who have been or are no in jail. 

Clearly, there are tens of thousands of people in jail, in the underground, in other 

countries because of their opposition to the Indochina War. We feel these people 

have resisted th e war primarily because of their religious belief in the sacredness of 

life.

Therefore, as religuous leaders we must uphold this belief, we mu st proclaim it, 

we must be consistent, we must say, grant universal amnesty.

As religious leaders, we see the need for healing, reconciliation between a government which has made a tragic mistake and those people of all classes and colors 

who are being victimized by th at mistake.

As religious leaders, we emphasize th at the continuing war in Indochina is 

unjust and immoral and, therefore, encourage all to resist it.

As religious leaders, we understand th at amnesty is not pardon or forgiveness for 

resisters bu t freedom from any form of prosecution, release from any form of incarceration and freedom from any form of alternate service.

As religious leaders, we encourage all believers, believers in life, to pray and 

work for universal amnesty.

STA TEM EN T O F D IO C ESE OF BROOKLY N COM M IS SI ON FO R W O RLD JU S T IC E AN D 

PEA C E----TH E AM NES TY Q U E ST IO N A R E F L E C T IO N , S PR IN G 1973

After the long and divisive Vietnam war, it seems strange th at few- political 

figures are taking any concrete actions to heal the bitterness caused by it. Perhaps 

they believe th at time is the best healer and th at more of it need elapse before issues 

like amnesty are addressed in any systema tic way.

The natio n’s religious leaders, however, have take n a definitive stand on the 

issue a nd interestingly, they line up almost overwhelmingly on the “pro” side. In 

the course of the la st several years, virtually every major religious group has issued 

a declaration calling for am nesty for those in legal jeopardy vvhose protest against 

participation in the Vietnam war was motiv ated by conscience.

The National Conference of Catholic Bishops, for example, in November of 

1971, expressed “pastoral concern” for those who in conscience resisted the war. 

“They too,” the Bishops argued, “must be reintegrated as fully as possible into 

our society and invited to share th e opportunities and responsibilities of building a 

better natio n.”

For some, the refusal to serve could have been self-serving. But others certainly 

rejected military service because they regarded participa tion in th e Vietnam War 

as wrong both for themselves and for their country. Because of an affirmative act 

of conscience, they continue to live either in the United States as fugitives from
the law or elsewhere in exile from family and community. Many who had accepted 

military service came to believe they had no option b ut to break ranks to resist the 

orders of superior officers. They too are paying a high price for their consciences.

Those who argue for amnesty believe th at th e war itself was a national mistake 

and tha t many young people who refused induction, or who la ter deserted, recognized it as such long before the rest of the natio n. This recognition, they say, 

contributed ultimately to a national policy of disengagement. Moreover, they 

argue tha t the essence of democracy is the right to dissent and th at for a long and 

divisive war the natio n would be best served by a policy of reconciliation.

Those who oppose amnesty believe that those who broke the law must pay the 

price. They argue tha t citizens cannot pick and choose those laws they will obey 

and ignore those they find morally objectionable. They ask: what happens to a 

society of law under such circumstances? This, we note, is precisely the question 

put to Bishop John Wesley Lord of the United Methodist Church and Bishop 

Bernard Flanagan of the Diocese of Worcester, Massachusetts, at Senate hearings 

in early 1972. Bishop Flanagan answered this way: “. . . in the ultim ate, a man’s conscience has to be the criterion by which he 

makes his moral judgments. lie is obliged, of course, to form tha t conscience on 

the basis of reflection, consideration of all the various viewpoints, the issues 

involved, bu t when he does come to that decision even though it m ight be against 

the civil law at the time, then it seems to be that we as Christians—and I’m 

speaking now of the Gospel—must accept his decision as one which is correct 

for him.” Bishop Lord followed: “. . . the only way we get good laws or better 

laws is in determining what laws no longer serve a good and useful purpose, and 

must be changed, and the only way to change some of those laws is to stand in 

defiance of those laws, takin g the penalty th at such disobedience requires at the 

moment, but with the hope that new laws will become a part of the government 

* * * Law is constantly in the process of change, and without this priceless ingredient of conscience and determination to examine law, to reexamine it, to 

find out why it is, we would be unable to establish a new and more satisfacto ry 

code.” Another argument against amnesty is th at reconciliation now dishonors those 

who fought in Vietnam. But, we must also ask ourselves, can the dead speak, 

and advise us? Does anyone presume to speak for them? Are the dead who fought 

in good conscience honored by retribution against those who in equally good 

conscience chose not to fight? In assessing the arguments on both sides of the issue, it is im portant to keep in 

mind jus t what amnesty is and what it is not. The root meaning of the word is 

to forget—th e law wouid decline to indict. Amnesty does not involve forgiving, 

but simply getting on with the business of life, with the reconstruction of the 

spirit of the nation with all participating—not just those who were able to agree 

with the national leadership or those whose opposition cost them nothing. For 

many, including the late Cardinal Cushing, the issue was a simple one. “ Would 

it be too much to suggest” he asked in his 1970 E aste r message, “tha t we empty 

our jails of all the protesters—the guilty and the innocent—without judging 

them, call back over the border and around the world the young men who are 

called deserters, drop the cases that are still awaiting judgment on our college 

youth? * * * Could we not do all this in the name of life, and with life, 

hope * * *?” After the Civil War, President Lincoln begged for a policy of reconciliation, 

lie did not receive it and as a consequence we as a nation still suffer the divisiveness of the afterm ath of tha t war. We should really ask now if we wish to pay the 

price again for failing to heal the nation’s wounds. More importantly, it seems 

clear that we ought not to allow th e political implications of this issue to obscure 

the basic moral issue of the right of conscience to which the U.S. Bishops and 

other religious leaders have called atte ntion.

Sta tem en ts an d R eso lu tio n s o f C ath oli c Org an iz a ti o n s

NATIO N A L FED ER A TIO N O F P R IE S T S CO UN CIL S, MA RC H 15, 1972

Whereas many young men have left this country or have gone to prison rath er 

than be involved in an immoral and unjust war in Southeast Asia, and

Whereas the American Bishops, in their October and November, 1971 NCCB 

stateme nts, urged th at the civil authorities grant amnesty for convictions incurred under the Selective Service Act; Be it
869

Resolved, That we th e delegates of the NFPC 1972 National Convention urge 

the President and Congress of the United States to grant an immediate and 

general amnesty to those who have left the country or have been imprisoned 

because of the ir opposition to compulsory military service in the Indo-China war, 

and th at amnesty be granted on an individual basis to those who have deserted 

the armed forces for reasons of conscience when no other serious crime was involved; and be it further

Resolved, That this message be communicated to President Nixon, to aspiran ts 

of the presidency, and to Senators and Representatives in Congress by the 

President of NFP C.

Subm itted by National Justice and Peace Committee.

STAT EM EN T OF NA TIO NA L ASS OCIATION OF LAITY, MARCH 6, 1972

The National Association of Laity, in consonance with the request of the 

U.S. Council of Catholic Bishops, petition you, Mr. President, and members of 

Congress, to grant universal amnesty to those who by reason of conscience are in 

exile, in prison, or awaiting prosecution because of the ir protest to the Indochina 

war.

We employ the word Amnesty in a universal contest, applicable to all resisters 

to the Indochina War (not the draft, per se). It would include all those in exile, 

those who went AWOL or deserted the armed forces, those who were less tha n 

honorably discharged, those awaiting prosectuion, and those who could be subject 

to prosecution. Our interp reta tion of Amnesty is founded on its rightful derivation 

from the Greek “ amnestia. . . . a forgetting” . It is n ot to be interpre ted in the 

sense which has resulted from common usage; th at is, “ pardon for an offense”. 

The UNIVER SAL AMNES TY advocated by the National Association of Laity 

is one which entails a setting aside of differences on both sides with no strings 

attached. The legality involved in such a proclamation necessitates initiation of 

universal amne sty by the government. The following is offered as a basis for 

such action:

1. There are historic precedents for amnestic action. Presidents Washington, 

John Adams, Madison, Lincoln, Andrew Jackson, Theodore Roosevelt, Coolidge 

and Franklin Roosevelt used the executive power granted under Article II, 

Section 2 of the U.S. Constitution to pardon persons charged with espionage and 

insurrection. Congress passed the Universal Amnesty Act of 1898.

2. War resisters conscientiously objected to the Indochina War as immoral, 

unjust and illegal.

3. War resisters in following their moral convictions assumed the posture of 

th at “human trib unal” cited in the following Tablet observations of the Nuremberg Trials (Vol. 188, October 1946, pages 193-194):

“I t seems to be the sole purpose of the Trial to emphatically sta te that when 

men come into power and perform actions of State, they are liable, if guilty of 

crimes, to be judged by their fellow humans. No soverign stat e or government can 

cloak itself in ‘acts of Sta te’ or ‘superior orders’ thereby avoiding answering for 

their deeds. Such men can be called to accou nt by a human trib unal.”

4. The gran ting of universal amnesty would be a long strid e towards closing 

the gap in an extremely polarized and restless United States. Mutual adjustments 

of feelings and attitudes are needed to bring abo ut reconciliation. Hard line policies will continue to aggravate an already deplorable situation dividing our 

country.

5. The proclamation of universal amnesty would be a positive step towards 

alleviating an over-burdened, archaic and ineffective “criminal justice” system.

6. Proclamation of universal amnesty can only enhance the international 

image of the United States. By this demonstration of integ rity and und erstanding, we will be bette r able to establish and implement from a forthright, unified 

base, programs of domestic rehabilitation and assistance in the development of 

other countries.

7. The loss of human potential to the United States through the acts of the 

war resisters is immeasurable. No country can afford to close its doors to sons 

and daughters who embody so many of the m ost important leadership cha racteristics; namely, the ability to make a decision, no ma tte r how agonizing, the 

streng th to honor this decision, no ma tte r how grave the consequences, and the 

capacity for human compassion directed by a strong sense of morality.

Again we emphasize tha t the granting of universal amnesty must not be a token 

gesture or a “ second chance” . I t must not be punitive but rather an honest attempt 

to achieve natio nal harmony and a realistic effect to restore justic e in our own
870

house. Recovery from the credibility gap will be slow but the mutual acceptance of this Proclamation would do much to create a climate of trust, and purpose The revelations of the Pentagon Papers and the testimony of the Winter Soldiers and others on the Indochina War demand that the justice inherent in universal amnesty be applied. Strong leaders must correct injustices as tru ths are revealed. We of the National Association of Laity propose that you, President Nixon, address the American people to announce your Universal Amnesty Proclamation of 1972, and tha t the Congress pass the Universal Amnesty Act of 1972. Although eithe r one is sufficient in itself, th e issuance of b oth would evidence the unification and solidarity of the Executive and Legislative Branches of our government.

STA TEM EN T O F LIT U R G IC A L C O N FE R E N C E , W A SH IN G TO N , D .C ., FEB R U A R Y 28,

1974

We—members of the staff of the Liturgical Conference, a national association concerned with the renewal of the chruch’s worship since 1940—appeal to you as a Congressional subcommittee to bring before the Congress legislation granting amnesty to all whose opposition to the war in Indochina brought them into conflict with the laws of the U.S. Government. Thousands of our fellow-Americans are still in exile from their country, their homes and families, are still fugitives, are still in prison, because they opposed t ha t war. Christian.liturgy is a liturgy of reconciliation. Amnesty is an act of reconcilia­ tion. We do n ot feel we can promote the one w ithout supp orting the other. If our society recognizes any higher moral law, if we claim to defend human conscience and its right to make moral decisions in the face of conflicting duties, then we must have a speedy amnesty. Even those who do not stand on those principles, however, can well seek amnesty for the sake of reconciliation a nd a new 

beginning. Amnesty does not consider guilt or innocence. Amnesty looks to the future rathe r to the past. The United States right now needs desperately to look to the future. Before our self respect is completely lost and our government tota lly discredited, let us tell all of these people—draft refusers, deserters, exiles, the court martialed , less-than-honorable discharges, civilian protesters and resisters—th at we need them to enable all of us to begin again and to build a better future.

Please!

STA TEM EN T OF FA CU LT Y M EM B ER S O F TH E CATH OLIC TH EO LO G IC A L U N IO N , 

SPR IN G 1973

Amnesty is an emotionally laden issue th at surfaces strong feelings pro and con. It elicits our feelings about how we entered the Vietnam war, and when and to what degree we felt that the war was counter-productive. Given the ambiguities of such a confusing situation we must respect each other’s ethical stance. This statem ent on unconditional amnesty is not meant to imply t ha t the men who served our country by responding to the call to arms do not deserve our respect. Nor does it imply th at they entered the service because they were n ot en­ tirely free to reject an unjust situation and suffer the insecurity of one who refused to answer. On the contrary, we respect them as men who saw the ir participa tion in the war as their moral response to preserve our political freedoms as Americans, world citizens a nd members of the human family. We salute th em as men willing to 

die for what they believed to be right and just. It seems to us tha t the same understanding m ust be given to all who evaded the draft. We must recognize the prophetic stance of these men whose collective actions heightened the American consciousness, forced us to look again at our military commitm ent and did indeed exercise in argumentation to determine which category was more faithful to mankind’s vision of a world without war. At this time it seems senseless to examine th e interior motives of either enlisted men or draft evaders. Our country has a trad ition for unconditional amnesty. It would be a magnanimous gesture to extend our hands to those who took a different moral stance from ourselves and adm it them to full citizenship without further retribution. Indeed, it is a necessary measure to end our divisiveness and restore 

unity to our country. If legislators propose alte rnate service as a compromise to elicit the support of those opposed to unconditional amnesty, we as political realists would accept such a measure provided it was not seen as a pu nishment for their guilt, but as a demon­ stra tion of their comm itment to our country in an era of un certain ty over a clouded 

and changing issue.
871

STA TEM EN T O F N ATIO N A L F E D E R A TIO N O F CATH OLIC SEM IN A R IA N S, MAY 1973

We believe that the experience of our c ountry’s involvement in Southeast Asia 

has created wounds in the life of our society, so deep tha t they demand to be 

healed. Through out the course of th e war men arrived at the conviction that the 

demands of their conscience necessitated their resistance to participation in any 

form. Some remained in this country, and either were convicted under law or went 

underground. Some were forced to exile themselves from the country.

We believe th at such demands of conscience may, in certain circum stances and 

at specific times, place a person outside the context of the law. Because of the 

terminology of law men who acted against the Selective Service Act have been 

identified as deserters. We do not believe th at such a term is even descriptive of 

the real situation of these men.

In solidarity with and support of th e National Conference of Catholic Bishops 

we believe th at a spirit of reconciliation is incumbent on both the leaders of our 

government and those who have resisted, on ethical grounds, the Selective Service 

Act.

In the past our Government has granted Amnesty. President Andrew Johnson 

granted a general amne sty in 1868, in an att em pt to heal the wounds of a society 

so recently engaged in Civil War. And after World War II President Ilarrv 

Trum an established an Amnesty Review Board which was the vehicle for recommendations of Amnesty. In toto there have been 35 Amnesties in our country ’s 

history—28 of which were granted by the President and 7 by Congress. We cannot 

accept the position of President Nixon which was most recently expressed in terms 

that foreclosed any considerations of Amnesty.

Because we cann ot perm it the wounds to go unhealed;

Because we recognize that the law is n ot the sole judg e of such men;

Because reconciliation recognizes persons who feel no guilt because their actions 

were ethically motivated,

We, the undersigned, therefore call for a general unconditional Amnesty on the 

part of our Government for those men, both within our country and outside our 

boundaries, who have resisted the Selective Service Act.

STA TEM EN T OF TH E CATH OLIC CA MPU S M IN IS TR Y AT R U TG ER S U N IV E R S IT Y , 

JA N U A R Y 1974

Reflecting on the long and divisive decade jus t passed, the members of the 

Catholic Campus Ministry at R utgers pause on this cease-fire anniversary. T hat the 

trage dy of Vietnam has claimed literally millions of victims no one will deny. The 

pervasive climate of depression in this country—the sense that something is 

seriously wrong a t the roots of our society—is b ut one after-effect of this war.

In addition to the dead and the maimed, in addition to the families tha t mourn, 

in addition to the confused citizens who wavered between loyalty and horror 

during years of TV newscasts are the “sons of our own people” who fled the war. 

All are victims: those who fought, those who died, those who were afraid, those 

who refused to fight, those who fought in good conscience, those who refused to 

fight in good conscience, those who fought and were afraid, those who were afraid 

and went away. All are victims. This war has brou ght no heroes.

The task of reconciliation lies ahead. From those who have the authority, those 

members of Congress who represent us, we ask legislation granting amnesty to all 

who, because of the war, breached civilian or military regulations. We ask the 

President of the United States to pardon those who have already been convicted 

of breaching those regulations.

The task of educating the American public lies ahead. We ask those who favor 

general amnesty to ponder the conflicting values of law and conscience. We ask 

those who favor conditional amnesty to consider that the issue of justice to those 

who fought will never be resolved. The thru st of the Gospel message, it seems to 

us, is that the “new covena nt” is mercy. This is a hard saying. To those who oppose amnesty, we ask that they read and discuss the pros and cons of the issue.

Finally, to those who fear that general amne sty will underm ine the law an d preclude effective draft measures the next time, we promise to live and preach and 

promulgate nonviolence in order to preclude not an effective draft, bu t rath er, 

“the next time.” Let this amnesty be the first general amnesty, the only amnesty, 

the last amnesty. Let all Vietnam victims plead “no more war.”
872

CATH OLIC P E A C E F E L L O W SH IP AM NES TY STA TEM EN T, JA N U A R Y 1974

Almost a year after the signing of the peace accords and w ith the induction autho rity of Selective Service at least temporarily suspended, the consideration of 

amnesty becomes a pressing moral issue. We of the Catholic Peace Fellowship support an unconditional, universal amnesty for all those who have suffered as a result 

of opposition to and resistance against war. Unfortunately, countless millions have 

or will suffer as a result of the devastation wrought upon the peoples of th is earth, 

bu t what is most saddening is th at so many can never be helped by an am nesty ; 

their lives are lost, their bodies or minds are maimed th eir families are ravaged, or 

their villages and a good part of their society are destroyed.

However, amne sty m ay be a facto r in helping many others build be tter lives and 

a healthier society in the years to come. (And it can be an opportu nity for the government and the people of the United States to take a positive step forward 

towards peace and a changed society.)

We see four basic groups that should benefit from an amnesty. Firs t and most 

urgent are those people who are in prison now as a result of their refusal to subm it 

to the dra ft or to sup port the m ilitary once in it. Many are also incarcerated as a 

result of other anti-war activities aimed at the institutions of warmaking.

The second group consists of those resisters who rath er tha n enter the military 

or give any more years of their lives in its pursuits chose to leave this country for 

exile and now face trial or prison if they return.

A third group is made up of all those, civilian and military, who are presently 

awaiting prosecution or in dictmen t for anti-draft, anti-military, or other anti-war 

activities. This includes the hundreds of thousands who are living underground in 

order not to cooperate with registration for the draft.

A fourth category are those who have already been convicted and served a 

sentence or are not on probation who are prevented from having full rights because of a criminal record. This should also cover those who were given less than 

honorable discharges for their refusal to submit and be good soldiers.

Amnesty for these four groups should mean a restoration of all civil rights beginning with the freedom to trav el and including the right to vote, hold licenses, 

or work at a job they choose. These basic freedoms are now denied them either 

physically by prison bars, by exile, or by reason of their criminal record of discharge characterization. We support an amne sty th at would restore these people 

to a place in the country, but do not feel that they need to be “pardoned” in the 

sense that amne sty is frequently taken. They have done nothing for which they 

ought to feel penitence. In fact, their opposition to war as a ma tter of following 

the higher call of conscience is an example for which we should thank them, not 

seek their punishment. Especially admirable are those who chose nonviolent 

resistance as their way of saying no to war and violence and yes to life by their 

whole being.

Further, we do not want to urge anyone to greater cooperation with the military now that the United States is no longer engaged in combat. If the Vietnam 

experience tau ght us anything it should be th at the roots of war lie deep in the 

structure of nations. And even with the draft presently not inducting young men 

to kill or maim their brothers and sisters it continues to be an institution we cannot reconcile with our Christian principles. For conscription remains one of those 

intolerable seeds of war we believe must be eliminated for Christ’s peace to reign.

P R O JE C T R EC O N C IL E ’S STA TEM EN T ON A M N ESTY , M AR CH 5, 1974

Reconcile’s position is th at universal and unconditional amnesty is the only 

reasonable and jus t course on this question There is no d oub t that on the merits 

of the argu men t total amnesty is persuasive.

A few considerations:

1. Amnesty is a legal concept th at means “forget” (and not “forgive” ). Amnesty 

is no t abo ut commendation or condemnation and the forgetting concerns the 

breaking of the law, not the issues or the reasons behind the breaking of th e law.

2. The concept of conditional amnesty is a contradiction in terms. Amnesty by 

definition is a blanket or carte blanche action which forgets that certain “crimes” 

were comm itted. It therefore involves all persons who comm itted such crimes.

3. Our memories are short. Millions of young men dodged the Vietnam 

war by legal means through college, medical, and occupational or other deferments. If the potential recipients of amnesty owe the country altern ate service, 

do not the deferred? Obviously the deferred will not volunteer service, nor will 

the y be coerced. Alternate service for one and not the other is plainly unjust.
873

4. On the question of dodging the war legally, we know th at such deferm ents 

were readily available because of race and class. The dra ft system was unjust.

5. It was unjust even for the white and middle class. Most resisters were not 

pacifists, yet there was no classification for selective conscientious objectors. They 

had the “choice” of jail, exile, underground, or army.

6. Most dodgers are white and middle-class. Many of them conscientiously 

positioned themselves in risk to confront an illegal and immoral dra ft and war.

7. I t’s n oteworthy th at most deserters are white, though poor.

8. Most blacks and other minorities went into the service and served. Many 

however, rebelled in a variety of ways, and we now have a million other than 

honorable discharged veterans, over half black.

9. While the young of the Vietnam generation were given a war and decided 

against it, so they favor their own generation with amnesty. According to the the 

latest Gallup poll, 55% of the age-group under 30 favor conditional amnesty 

to 36% against, and 47% favor unconditional amnesty to 42% against. They were 

righ t a bout the war and they are right on amnesty. They ought to know; its the ir 

lives we’re talking about.

10. Despite what the Government s tati stic s are, we know we are dealing with 

hundreds of thousands of young men, probably upwards to a million. Given the 

numbers, review boards are impracticable, and altern ate service, alre ady mismanaged and wasteful, is ridiculous.

For all the above reasons, plus others, universal and unconditional amnesty 

is the clear a lternative. Since it is reasonable and ju st, we can assume the best in 

the American people to eventually apprecia te this course. They did on the war; 

the y will on amnesty. It’s the only way to honor the dead of the Vietnam 

generation.

We must remember, however, th at the project of reconciliation is only partly 

begun with tho gran ting of amnesty.

Reconciliation would have us remember the en ormity of the Vietnam experience, 

learn from it, resolve never to act so again, and ask the forgiveness of h umanity. 

Reconciliation is hard-nosed, perhaps harder tha n we can manage or bear. But 

Americans have to try, for ourselves, for everyone.

Sta te m e n t s an d R eso lu tio n s o f R el ig io u s M e n an d W om en Org an iz a tio n s

STA TEM EN T O F C O N FER E N C E OF M AJO R SU P E R IO R S O F M EN , U .S .A ., MAY 28, 1973

Aware of the need to speak to value issues in American society, and mindful 

of our role as religious leaders within the Catholic comm unity, we members of 

the National Executive Board of the Conference of Major Superiors of Men 

address ourselves to the critical question of am nesty.

We consider amnesty to be a positive act of compassion directed to our fellow 

citizens who are in prison or in exile because of their response to laws relating to 

military service. It is a proclamation th at these persons are free to return to their 

families and homes, exempt from all legal prosecution for whatever action s they 

may have felt obliged to take regarding participa tion in the Vietnam war. It 

restores them to their full legal sta tus of living a nd working in the United States 

as free and useful members of society.

Amnesty does not mean “forgiving” ; it is not a judgeme nt of condemnation, nor 

an act of condonation. It is simply an act of “forgetting,” a wiping clean of the 

slate, an overlooking of any past legal transgression.

A. Why Amnesty Now?

We feel that the most urgent need facing the United States at this moment is 

the need for reconciliation. After a decade of bitter dispute over the Vietnam war, 

we Americans need to be brou ght together, to bind up our wounds, to unite in a 

common purpose to promote peace and justice.

Thousands of young men are currently in prison or in exile from the U.S. 

because of the positions which they took on the Vietnam war. Their status is both 

a symbol and a cause of division in our country. Amnesty would be a healing and 

reconciling measure designed to overlook the past and move a united nation into 

the future. It would restore confidence in the ability of our government and its 

people to foster a sense of renewed purpose, especially as we approac h the 1976 

Bicentennial Celebration.

B. What Kind of Amnesty?

We feel th at the criterion to be used in deciding what kind of amn esty is chosen 

is clear: what best promotes the goal of reconcilation? We believe tha t a universal 

and unconditioned am nesty will do the m ost a t th is time to promote reconciliation, 

31-638—74------57
874

1. It. should apply to all individuals who have broken laws regarding conscription into military service or who have withdrawn from participation in military 

service. This will affect those who have avoided the draft through going underground or leaving the country, those who have been imprisoned because of noncooperation or forms of concsientious objection not recognized by our courts, and 

those who have left military service or have been imprisoned because of refusal to 

take part in combat. (We are not speaking here of criminal offenses unrelated to 

the draft and the war.)

2. If it is to be a true forgetting, the amnesty must not impose any penalizing 

conditions, such as alternative service or recording the facts of the case in public 

records. Any penalizing conditions would not heal division nor restore harmony to 

the nation.

C. Call for Amnesty

As American Catholic religious leaders committed to justice and peace, we call 

upon the President and the Congress to take the necessary steps to grant such an 

immediate universal and unconditional amnesty.

We are aware of the political difficulties involved in such an action and of the 

heated debate to which the issue of amnesty gives rise. There are certainly honest 

differences of opinion about the desirability, feasibility, and consequences of such 

action. However, it is our considered opinion that the amnesty we call for is the 

surest path to the promotion of reconciliation in our nation.

D. Pledge for Action

In order to commit ourselves to the task of reconciliation, we are taking the 

following actions:

1. We are sending a copy of our Call to all the members of the Conference of 

Major Superiors of Men, inviting them to share this statement with their own communities, to thereby stir up discussion and reaction, and to send their response to 

us.

2. We are communicating our position directly to President Nixon and to all the 

members of the Congress.

3. We are inviting members of the Conference of Major Superiors of Men to 

join their signatures to ours in support of this statement on amnesty at the Annual 

Assembly in June, 1973.

4. We are asking the American Catholic Theological Society to commission a 

task force on the theological dimensions of amnesty in order to deepen the understanding and further acceptance of this act of reconciliation by Americans.

STA TEM EN T OF L E A D E R S H IP C O N F E R E N C E O F W OM EN R E L IG IO U S , E X E C U T IV E CO MM IT T E E , FEB R U A R Y 26, 1974

The executive committee of the Leadership Conference of Women Religious 

endorse an appeal to the conscience of the U.S.

For centuries religious bodies have affirmed an individual’s moral right to refuse 

participation in a particular war in which the claims of the government and those 

of his conscience conflict. This primacy of the human conscience is a key tenet of 

religion.

The POWS who fought for and remained loyal to our country are recognized as 

men of conscience. Conscientious objectors protesting against all war are recognized as men of conscience. The young men who fled our country in order to 

protest against the Vietnam War should be allowed to return home as men of conscience. Yet. despite persistent pleadings (most recently by the U.S. Catholic 

Bishops Conference) no provision has been made for selective conscientious objection. This failure has been the major cause of the moral crisis of tens of thousands of 

American youth who are left with no choice but exile or prison.

Amnesty would be an act of restitution by authority that was, unjustly, not 

responsive. Amnesty would be a belated recognition of a right that should never 

have been denied. It would give us the important opportunity to “forget” something, so that we could “ remember” something else. We could forget that some 

people technically broke a law, because we remember that those same people 

were sensitizing the conscience of the nation to an evil the nation was commiting. 

We could forget that the letter of the law calls for punishment, because we remember that there can be a moral law higher than the laws of nations. We could 

forget that conventional patriotism calls such men disloyal, because we remember 

that the highest kind of patriotism is the willingness to say “ no” to one’s country 

when it is doing wrong.
875

Amnesty is a well established trad itio n of the U.S. people. Even the Civil War 

ended in complete amnesty.

In granting amnesty, we could begin to affirm that thousands of young men 

refusing to do w hat they believe to be a wrong are the true lifeblood of a democratic 

society and th at we need them back in our midst as soon as possible.

R ESO LU TIO N O F N A TIO N A L A SS EM BLY O F R E L IG IO U S B R O TH ER S, JU N E 24, 1973

Resolved, Th at the Brothers present and voting at the national meeting of 

Brothers sponsored by National Assembly of Religious Brothers support unconditional amnesty for all persons who refused to serve in Vietnam.

(Note: the v ote here was roughly 4 to 1 in favor of this resolution, after a long 

debate.)

NAWR,

Chicago, 111., March 5, 1974- House J udiciary Subcommittee No. 3,

U.S. House of Representatives,

Washington, D.C.

The Natio nal Assembly of Women Religious is an association representing over 

3,000 individual members and 88 group members. Following is our complete sta tement regarding amnesty, expanding our telegram sent to you on the same date.

The Natio nal Assembly of Women Religious, aware of its comm itment to a 

Ministry for Justice, and supportive of Pope Paul Vi’s theme for the Holy Year, 

Reconciliation, endorses a universal and unconditional amnesty for those fellow 

citizens in prison or exile because of their response to laws rela ting to military 

service.”

S. C atherine Pinkerton,

Chairperson.

STA TEM EN T FR OM T H E N A TIO N A L C O ALIT IO N O F A M ERIC AN N U N S

Whereas the Government of the United States of America is no longer officially 

at war in Southeast Asia,

Whereas many American military persons bore witness to the evil of th at war by 

refusing to bear arms in th at immoral struggle,

Whereas nonetheless these same Americans now continue to suffer exile and 

other heavy penalties unjustly: Therefore, the National Coalition of American 

Nuns calls on—

1. The President and Congress of the United States of America to accord 

full and unconditional amnesty to all such persons whether now suffering 

exile or imprisonm ent and other penalties in the United States of America,

2. All members of the National Coalition of American Nums to participate 

in this work of reconciliation thro ugh education and appropriate political 

action. Futhermore, the National Coalition of American Nuns considers t ha t 

the Supreme Cou rt decision denying GI education benefits to those who 

served as conscientious objectors is a manifest injustice. These persons who 

served the ir cou ntry in non -combatan t roles deserve all GI benefits.

Las H ermanas,

W ashington, D.C., March 4, 1974. House J udiciary Subcommittee No. 3:

Whereas our country was founded on the principles of freedom, justice and 

equality for all, and,

Whereas unjustified wars are a crime against the personal conscience and moral 

life of persons, and,

Whereas true leadership is exemplified through “hechos” or deeds, and, 

Whereas our government has failed us in the above, we, Las Herm anas, strongly

recommend full amnesty to all persons, who according to their beliefs felt compelled not to par ticipate in m ilita ry action against other nations. We further recommend th at no derogatory record of such a stand be filed against these persons.

Unidas en accion y oracion, somos,

National Coordinating Team, 

Mauaide J esus Ybana O.D.N. 

Mario Barron C.S.J.

Cai.mebta Espinoza R.G .S.
876

STA TEM EN T OF N EW YOR K PR O V IN C E ADVIS ORY CO U N C IL OF T H E SO C IE TY OF JE S U S , 

SPR IN G 1974

The re are thousands of young men who are either in prison or in exile because 

of their opposition to military conscription and the Vietnam War.

In a spirit of reconciliation, the Advisory Council of the New York Province of 

the Society of Jesus favors total legal amnesty for all those young men whose 

crime was their failure to comply with the dra ft laws or their refusal to serve in 

Vietnam.

The Advisory Council urges all Jesuit communities, in concert with the ir 

stud ents, parishioners, co-workers and other associates to und erta ke action 

(e.g., to petition the Congress to cooperate with the various groups working for an 

amnesty, etc.) on behalf of a general amnesty.

There are compelling reasons why amne sty should not entail the stipuation 

of a condition of alternate service. First of all, no such condition was ever attac hed 

to the government’s granting of amnesty in the past. Secondly, there is a novel 

element present in the question of amnesty today. Many, if not most, of the 

young men (some estimate the number as high as 70,000) violated the law because they found the draft law and/or the Vietnam War contrary to their conscience. Further, many young men in exile would be forced in conscience to 

refuse an amne sty which contained such a condition, since it would imply a furthe r questioning of their sincerity.

This statem ent is in no way intended to discredit those many young men who 

have served in this conflict with no less sincerity. Many of them have suffered 

grievously and deserve their countrymen’s continuing concern, especially if they 

have been permanently disabled. This concern should be translated into generous 

and jus t veterans’ benefits.

Finally, let us keep in mind that amne sty should not be conceived as freeing 

all of us from the urgent task of bringing about those reforms of law and government which would prevent from arising again in the future the cruel situation 

which so many of our young have had to face over the last several years.

STA TEM EN T OF HOL Y CR OSS FA T H E R S EA STER N P R O V IN C E, JU L Y , 1973

In the context of the love and forgiveness preached in the Gospel and in the 

light of the Church’s teaching against war, particularly the war in Indochina, 

we, the religious of the Eastern Province of the Holy Cross Fathers, call upon 

the United States government to grant unconditionally amn esty to:

(1) all those who, because of the war, were brought into extenuating 

circumstances in which they breached civilian or military regulations;

(2) the half-million veterans who are now being punished by othe r-thanhonorable discharges;

(3) all those who have been convicted or are facing prosecution, so that 

their records might be wiped clean;

(4) all deserters, draft violators at home and abroad, and those accused 

-of civilian acts of resistance so tha t there may be a new beginning. Amnesty 

is not pardon. In judicial tradition amnesty blots out the offense for the 

sake or reconciliation and a new beginning.

An unconditional amnesty would free us for a responsible and serious effort 

to rebuild our divided people.

L E T T E R FR OM W ORL D JU S T IC E AN D PEA C E O F F IC E , PR O V IN C E O F ST . JO S E P H OF 

T H E C A PU C H IN -F R A N C IS C A N O RDER, D EC EM B ER 1, 1971

To Richard M. Nixon, President of the United Stales, Aspirants to the Presidency,

Our Senators and Representatives in Congress, Citizens of the United Stales,

Young men whose lives have been dominated by the Indochina war, in the confidence that they, wherever they are, are already concerned with the making of

a belter America.

We, the undersigned Capuchin Franciscan brothers of the Province of St.

Joseph (Indiana, Michigan, Minnesota, Mon tana and Wisconsin), beseech you, 

the President of the United States, to grant an immediate and general amne sty 

to those who have been forced to leave the country or who have been imprisoned 

because of their opposition to compulsory military conscription. We further 

beseech you to grant amnesty on an individual basis to those who deserted the 

arm ed forces for reasons of conscience when no o ther serious crime was involved. 

We adm it that some of the young men for whom we seek amnesty may have
877

had unworthy motives for their actions, but in general we must presume sincere 

objections of conscience. In these people we find no guilt! They should not be 

punished further.

Amnesty, Mr. President, must be an act of overarching statesmanship. Only 

you can gra nt it. It must be gran ted to reconcile this nation and to bring us together again. We urge you to act now since you have publicly declared th at our 

combat role in South Vietnam has ended.

We, as so many oth er Americans, deplore the grea t human cost of this war 

and the divisions it has wreaked upon this coun try. We seek not to discredit the 

efforts of those who gave their lives, we seek only to heal the wounds of those who 

remain.

(70 Signatures).

L E TTE R FR OM FR A N C IS C A N S O F HOL Y NAM E C O LLEG E, W A SH IN G TO N , D.C .

H ol y N am e C o l l e g e, 

Washington, D.C., March J, 1974-

To the House Judiciary Subcommittee No. 3 on Courts, Administration of Justice,

and Civil Rights.

We, th e undersigned, believe that an unconditional amnesty should be granted 

to all those who became alienated in any way from their country and families, 

as a result of the action s they took concerning their military involvement in the 

Vietnam War.

Furth ermore, we reque st th at the Congress petition the President to take the 

appropriate measures to effect freely and unconditionally the reconciliation of 

these individuals with their country a nd all those who love them.

L a w ren ce A. D eC o st e, O.F.M .,

(and 37 others).

sta tem en t of th e p a ssio n is ts, ea ster n pr o v in c e

The National Executive Board of the Conference of Major Superiors of Men 

sounded the trump et for amnesty one week ago today, on Memorial Day, and 

there was nothing uncertain about it. “A Religious Call for Amnesty” was loud 

and clear in its plea for universal and unconditional amnesty. Such an amnesty 

would “apply to all individuals who have broken laws regarding conscription 

into military service or who have withdrawn from participation in military 

service.”

Acknowledging the political difficulties involved in such an action and the 

heated debate to which the issue of amnesty gives rise, the CMSM Board nevertheless considers total amne sty “the surest path to the promotion of reconciliation in our nation.”

Any position favoring amnesty for Vietnam war objectors has, up to now, 

gone against the grain of prevailing public opinion in America. The President 

vowed “never” to yield to the claims of amne sty and, in the glow of returning 

prisoners of war, popular opinion swung against the idea of amnesty. In March 

1973, a poll showed 67% of Americans flatly against general amnesty.

But the Wate rgate affair has sprouted up and mushroomed over the country 

since then. In the latte r part of April, Henry Kissinger admonished his fellowcitizens th at it is difficult “to avoid a sense of the awfulness of events and the 

trag edy that has befallen people alleged to have done these things for whatever 

reasons.” He asked “compassion” for the human trage dy and stated tha t, when 

it (the Wate rgate affair) is all over, we have to ask if the country can afford an 

“orgy of recrim ination.” Watergate, besides providing the country with its most 

compelling evidence in our time of a drastic need for national moral reform, might 

also generate jus t the right climate to stimulate a sympathetic understanding of 

those who have opposed the Vietnam war “for whatever reasons.”

In view of the disclosures to the Ervin Committee, the reflective citizen migh t 

well wonder which is the greater vilification of the 50,000 American lives lost in 

Vietnam—the granting of an amnesty to those who would not serve in that war 

or the spreading dryrot in the office that houses the Commander in Chief? The 

natio n has reached a crucial state in its affairs. It can ill afford the widespread 

disillusionment evidenced by the Gallup Poll report of May 24th which showed 

that popular approval of the President’s performance in office had dropped to 

45 percent, the lowest of his time as President, and a drop of 23 perc ent since 

January.
878

The National Board of the CMSM has issued a call for compassion toward 

t hose who have broken laws regarding the Vietnam conflict. And llenry Kissinger 

has already sounded the same call for those involved in the Watergate affair. 

Ultimately, the plea for compassion in eithe r case will depend upon neither the 

stra tegy of politicians nor the findings of public opinion polls, b ut upon the efforts 

of men of good will thro ughout the country to bind up and heal the wounds of the 

nation, enabling it to live in an honorable peace with itself.

The issue of a broad amnesty must, sooner or later, confront the conscience 

of all Americans. The urgency for a Christian response to the call for amnesty 

should not be underestimated. For the Christian should be the first to recognize 

amnesty as an aspect of reconciliation. While amnesty as reconciliation is richly 

rooted in the Old Testament, it lies at the very hea rt of Christian faith. God’s 

mercy toward mankind is an amnesty. lie not only forgives the sinner, but his 

way of forgiving is a way of blotting out the sinner’s guilt. Moreover, God upholds 

those who seek a higher righteousness, lie is the advocate of peacemakers. The 

Christian, then, is called to give witness in his own life to the peace which is the 

fruit of a divine act of reconciliation. And, in view of Jesus’ warning in Matthe w 

5:24, the duty incum bent on men to be reconciled to each other clearly rests on 

the reconciling act of God himself. The Christian’s response to the plea for 

amnesty will have to go beyond the greeting of peace at Mass; nevertheless, it 

will have to find its beginning there in that moment which symbolizes the reconciliation of man with God and with his fellowman through Christ.

Priests and Religious, as messengers and models of reconciliation cann ot run 

the risk of confusing moral imperative with political tactic in this matt er of 

amnesty. By prayerfully reflecting on the whole notion of amnesty within the 

Christian concept of reconciliation, they will be better prepared to instruct others 

today as Paul the Apostle instructed the Corinthians: “God was truly in Christ, 

reconciling the world to himself by not reckoning against men their sins and by 

entrusting to us the message of reconciliation.” (II Cor. 5:19). If priests and 

Religious are to be more tha n symbols of th e healing power of the Gospel, they 

will have to bend every effort in the days ahead to bring people to a more compassionate regard for others. They will not be able to render this service unless they 

themselves are able to sep arate the issues from the dark and stiflng entanglements 

of hum an bitterness, hatred a nd vengeance and view them in the light of ch arity , 

justice and peace. Otherwise, their counsel and ministry might easily be dismissed 

as a n att em pt on the part of the blind to lead the blind.

“A Religious Call to Amnesty” should ring well with the Passionist religious. 

It focuses his attention on what should be in his eyes a contemporary aspect of 

the Sacred Passion of Christ. But it also challenges the Passionist to rise above 

conflicting political attitud es and to become for others, in this critical moment of 

his cou ntry’s history, a prophetic messenger of reconciliation. His vowed dedication to the promotion by word and deed of a deeper awareness of the meaning 

of the Passion for each man and for the life of the world provides a solid foundation for his atte mp ts to bring abo ut a healing of th e wounds of his coun try. The 

“Call” of the National Board of the CMSM, then, should be considered more 

as a summons to pray an d study, discuss and consult, in order th at one might be 

better able to do battle with the forces tha t make the Call for Amnesty necessary.

The Office of Social Concerns of the Province invites all Passionists to join it 

in endorsing “A Religious Call for Amnesty” and in working for the reconciliation 

of their fellow countrymen with one another.

L E T T E R FR OM S IS T ER S O F ST . JO S E P H , ST. LO U IS PR O V IN C E

Sisters of St. J oseph of Carondelet,

St. Louis, Mo., March 1, 1974.

Hon . R obert W. Kasten meier,

Chairman, Subcommittee on Courts, Civil Liberties, and the Ad ministratio n of Justice.

Dear Sir : As the Provincial Assembly of the St. Louis Province of the

Sisters of St. Joseph of Carondelet, we are striving to live the gospel message of 

peace and are comm itted to the special task of helping to bring about reconciliation in tod ay’s world.
879

For several years, families, communities, and people of our nation have been 

divid ed over the rightness or wrongness of our gov ernment’s militar y actio ns in 

Southeas t Asia. Those who have experienced the grea test hostility and hav e been 

called upon for the greatest sacrifices hav e been the young men who had to 

choose whether or not to serve in our nation ’s mil itar y forces. Iron ically, both 

those who served and those who refused to serve have found them selves among 

the chief victims of our nation’s strife.

I n iting w ith other religious leaders in our nation, we call upon our gove rnment 

to tak e prompt and specific steps to transform the climate of hostility, generated 

at home and abroad as a result of its mil itary involvem ent, into a climate of reconcilation and understanding. We support the resolution of the Nationa l Conference 

of Catholic Bishops:

“ Special attention must be given to the you ng people of our nation whom 

the war has profoundly affected in so ma ny ways, material, psychological, and 

spiritual. Our returning veterans and especially the wounded and the prisoners 

of war, must be given every possible consid eration and assistance to enable them 

to reintegrate their personal and professional lives into civilian society. In a spirit 

of reconciliation , all possible consideration must be given to those young men who, 

because of sincere conscien tious belief, refused to participate in the war.”

We therefore urge you to grant imm ediately, amn esty to those who, for reasons 

of conscience, are in exile, in prison or in legal difficulty because of the war. 

Respectfu lly yours,

P ro vin cia l Ass em b ly, St. L o uis P r o v in c e.

Sis ter s of St. J o se ph of C a r o n d ele t.

Ap r# 18, 1973.

To the President of the United Slates and onr Senators and Representatives in

Congress:

As the general social action secretariat of the Sisters of St. Joseph of Carondele t, 

we are strivin g to live the gospel message of peace and are comm itted to th e special 

task of helping to bring a bout reconciliation in toda y’s world.

For several years, families, communities, and people of our nation hav e been 

divid ed over the rightness or wrongness of our gove rnm ent’ s military actions in 

Southeas t Asia. Those who have experienced the grea test hostility and have been 

called upon for the greatest sacrifices have been the you ng men who had to choose 

whet her or not to serve in our nation’s militar y forces. Ironically, both those who 

served and those who refused to serve have found themselves among the chief 

victim s of our nation’s strife.

I nitin g w ith other religious leaders in our nation, we call upon our government 

to tak e prompt and specific steps to transform the climate of hostility, generated 

at home and abroad as a result of its mil itary involvem ent, into a climate of 

reconciliation and understanding. We support the resolution of the Nationa l 

Conference of Catholic Bishops:

“ Special attentio n must be given to the young people of our nation whom the 

war has profoundly affected in so m any ways, material, psychologica l, and spiritual. 

Our returning veterans, and especially the wounded and the prisoners of war, 

must be given every possible consideration and assistance to enable them to 

reintegrate their personal and professional lives into civilian soci ety. In a spirit 

of reconciliation, all possible consideration must be given to those young men who, 

because of sincere conscientious belief, refused to particip ate in the w ar.”

We therefore urge you to grant imm edia tely amnesty to those who for reasons 

of conscience, are in exile, in prison or in legal difficulty because of the war. 

Re spe ctfully yours,

Sister Alethea Connolly, CSJ,

Latham, N.Y .

Sister Ma rqu ita Finley, CSJ,

Minneapolis, Min n.

Sister Audrey Olson, CSJ,

Kansas City, Mo.

Sister Ma rily n Schafer, CSJ,

Concord, Calif.

Sister Margaret Collins, CSJ,

St. Louis, Mo., General Coordinator.
880

LETT E R FR OM IM M ACULA TE H E A R T CO MM UNIT Y

I mmacu la te H ea r t C om m u nit y,

Los Angeles, Calif. March 8, 1974.

We, the members of the Action-for-Justice Committee of the Imm aculate 

Heart Community, believe in universal and unconditional amnesty for all those 

who were or are in conflict with th e law for nonviolent acts of opposition to the war 

in south east Asia.

Our belief is rooted in two fundamental teachings of our Christian heritage: 

1) the authority and freedom of conscience, th at is, the dut y of individuals to 

judge for themselves what is right in the face of conflicting obligations; and 2) 

the recognition that our society is founded on a higher law than th at enacted by 

human persons. .

We understand amne sty as deliberately deciding to grant imm unity to those 

who face prosecution, and to release those now indicted or imprisoned. It does not 

mean simply forgetting or forgiving, but rather blotting out the ‘offense’, wiping 

the slate clean—for the sake of reconciliation and a new beginning.

It is our conviction th at none of us came out of the war with out blame. There 

is urgent need for reconciliation between—

those who made the war, from whatever motive or in ten t; 

those who fought the war, with whatever pride or regrets; 

those who fled the war, for whatever reasons, noble or ignoble; 

those who lost loved ones in the war, with whatever subsequent feelings; 

and

those who opposed the war, b ut too late and too feebly.

So, rather tha n preoccupying ourselves with the painful and divisive process 

of legal prosecution, we favor amne sty as a way of freeing ourselves for the task 

of post-war reconciliation and healing.

By “universal” amnesty we mean to include the estimated 10,000 1

 draft 

resisters and military deserters who are in civil or military prison, on probation, 

or awaiting court action; the 80,000 dra ft resisters and military deserters who 

are underground in the United States; the 60,000 to 100,000 dra ft resisters and 

military deserters who are in exile; and the 388,000 Vietnam veterans who were 

given ‘less-than-honorable’ discharges for nonviolent offenses, often without due 

process.

By “unconditional” amnesty we mean th at no form of alte rnative service 

should be required as a condition for gran ting imm unity from prosecution or 

release from prison. Such service is punitive, and it imputes guilt to potential 

receipients—both of which we find unacceptable.

We cann ot now restore to life our dead soldiers, nor those of the Vietnamese. 

We cannot undo the devastation wrought upon the lands and people of Indochina. 

We cann ot assuage the suffering of one group of Americans by being vindictive 

toward another. But we can repent, and begin again—to “bind the wounds of 

the nation ” (Abraham Lincoln) and to work for a lasting peace.

Pa t Reif, HIM , Coordinator; Muriel Allen, IB M; Mary Bowler, 

III M ; Albertine Campbell, HIM; Carmen Cherry, HIM; 

Lenore N. Dowling, III M; Vivian Gabehart, III M; Dolores 

Kosinski, SFCC; Mary Louise Krug, IH M; Mechtilde Lauer, 

III M; Barbara Lukaszewski, SFCC; Joyce Richards, IIIM ; 

Viola Sam pert, IHM; Jean Scott; Joy Smith, IHM .

E xtr acts F rom C ath olic P er io d ic a ls an d N ew spa pe r s

N A TIO N A L CATH OLIC R E P O R T E R , MAR CH 16, 1973

One year ago we editorialized on the question of amnesty. After reviewing all 

sides of the issues we recommended th at amnesty be granted unconditionally 

to all young men who evaded the draft for reasons of conscience—for refusal 

to fight in a war they considered immoral. We have no reason now to think 

otherwise.

In fact, in the past year two major even ts have happened which make it 

imperative th at the amnesty question be favorably resolved: the cease-fire in 

Vietnam and the end of the draft. One can understand the political and strategic 

reasons for not acting on amnesty during our activ e military engagement in

1

 These estimates appeared in th e New York Times on January 30,1973.
881

Vietnam (no matter how immoral we thin k that war ma y be). And to a lesser 

extent we can understand the relu ctan ce to grant amnesty to dra ft evaders while 

other men were still being drafted. Bu t those considerations no longer apply.

Amid all the hoopla and celebration over the return o f hundreds of prisoners 

of war, the American people have pushed to the back of their minds the tens of 

thousands of young men who have gone to jai l or to other countries to evade 

milita ry service.

How many of them evaded for reasons of conscience and how ma ny evaded 

out of cowardice, only God knows. It would be difficult for any panel or ju ry of 

persons to jud ge their motives. Th ey are a loss to our nation, and it is for the 

good of the nation that the y be returned to produc tive lives in the communities 

from which the y were tak en or fled.

Thu s we consider Presiden t Nixon’ s adam ant stan d in opposition to amn esty 

unfortunate, to say th e least, not onl y for th e thousan ds of y oun g men imm ediately 

affected bu t for the cou ntr y as well. It seems almost capricious for the president 

to make whim national policy; we can understand his lack of sym pathy for nonsupporters of his war, but we are appa lled by his lack of restraint and his blindness 

to the need now as never before for reconciliation within our nation.

Con fronted with such an unbe nding presidential stance, which has reinforced 

the hardline attitu de of many Americans towa rd amnesty, Congress will probab ly 

do nothing to secure the return of draft evad ers on terms most of them will 

accept. (Those who acte d on grounds of conscience do not want “ forgiv eness” 

for doing something the y consider virtu ous, nor will the y accept the “ punishme nt” 

of com munity service to expiate their non-crime.)

Thu s the possibility of a general amnesty seems rather remote at this time 

unless the president comes to realize tha t amn esty means to forget, not to forgive, 

and decides to act in the natio nal interest, not out of spite. Only massive public 

pressure will achieve this, we fear. For the sake of those who remain in exile, 

however, as well as for our own, we hope this pressure is applied.

ED IT O RIA L, CO MMON WEA L M AG AZ IN E, MA RCH 16, 1973

The natio n is divided, still. Ma ny have long been convinced that war criminals 

in high places were going unpunished— men like Dean Rusk, Robert McN ama ra, 

McG eorge Bundy, et. al., central characters in the Pentagon Papers. Aft er the 

Christ mas terror-bom bing of the North Vietnamese civilian population, the 

number who would have added Mr. Nixon’ s name to this indictment increased 

sharply . Bu t with the coming of an unea sy truce in Indochina, emotions have 

calmed. Now, with the return of the PO W ’s, Messrs. Nixon, Rus k, McN ama ra, 

Bundy and the rest seem to be benefiting from some kind of unofficial, unspoken 

amnesty. All right, then, but cann ot the same spirit of amn esty be extended to 

war resisters in ja il or in exile, to draft-dod gers in Can ada or Sweden, as suggested 

here last week?

President Nixon, predictably, now opposes the idea of amnesty, although earlier 

he waffled on the issue. Further, according to the Gallup Poll, seven out of ten 

Americans oppose unconditional amn esty. Ty pic al is Senator James L. Buckley, 

Con servative-Re pub lica n of New Yo rk, who termed general amnesty “ mor ally 

objectionable and historic ally unprecedented.” It is hard to see this reasoning 

on eithe r score. Beginning with Washington, who gave a “ full, free and entire 

pardon” to those involved in the Whisky Rebellion, the follow ing Presidents 

gav e amn esty in one form or another: Adams, Jefferson, Madison, Jackson, 

Lincoln, Johnson, Gran t, Mc Kinle y, Coolidge, Roo sevelt and Trum an. Why 

should we not learn from their example?

As to moral objec tions to amnesty, we cannot see them — quit e the contrary. 

After all, we are not talkin g abo ut the Lt. Calley s of this war, the men who 

slaughtered innocent men, women and children in our name. We are talkin g c hiefly 

about young men trap ped by the nation ’s failure to prov ide as it should have for 

sele ctiv e conscientious objection to particu lar wars, men who refused to fight in a 

war the y judged immoral. Do we n ot owe them honor? These men were gu ilty o nly 

of being “prem aturely moral” on Vietnam. Ra the r than being sinners who neeH 

forgiv eness, they reflect credit on the com munity ; they testi fy to a moral sensitiv ity among at least some of our people of which Ame rica should be proud. 

All Americans are. glad to see the PO W ’s return, even know ing that ma ny of them 

were captured while rainin g down death on the hapless Vietnamese. The exiles 

and deserters h ave also been prisoners of war, and the y are the ones t ru ly deserving 

of a hero’s welcome.
882

Serious disagreement exists as to how many men would be affected by amnesty 

For reasons of its own the Nixon Administration seems to want to u nderestimate 

the numbers involved, and in his remarks on the subject, the President suggested 

th at they amounted to only a few hun dred. This is clearly far too low an estimate; 

other and more realistic calculations range from 10,000 to 70,000. To use the 

exact number is not the central question—one or a thousand, the principle is the 

same. Meeting in Kansas City last year for what was called “An Ecumenical 

Witness,” various religious anti-war groups joined in urging “a broad, general and 

plenary amnesty, withou t any qualifications or conditions, to all those men and 

women who hav e been arrested or face possible prosectution by civilian or military 

courts for any alleged offenses arising o ut of the war, as well as the meeting of our 

social responsibilities to those who might refuse amnesty, to the civilian members 

of the resistance, and to those who have served in the m ilitary .”

It is with this spirit of compassion and healing that we would identify ourselves. 

When Communist leader Leonid I. Brezhnev recently visited Czechoslovakia, its 

leaders honored his visit by declaring an amne sty for all who had fled abroad at 

the time Soviet troops entered th at country in 1968. If an Eas t European Communist nation can show this kind of mercy, cannot we do the same, and without, 

niggling conditions?

L E TTE R S TO T H E ED IT O R S, SIG N M AGAZI NE A P R IL 1975

The question of amnesty is another divisive issue th at Americans face. It is 

sadly ironic t ha t now tha t a peace has finally been arran ged with North Vietnam, 

Americans are finding it difficult to settle arguments among themselves. We 

have peace “over there,” an d now it seems we are going to quarrel bitterly among 

ourselves. Yet in a way it is u nderstandable. For until the war is over and the 

prisoners of war retu rned, amnesty could be discussed but did not have to be faced 

as an immediate issue. Now th at has changed.

For example, in November 12, 1971, President Nixon gave a curt, unqualified 

no when asked about those who, one way or another, had ducked out of Vietnam. 

But two months later, he said: “We always, under our system, provide amnesty, 

bu t not while there are Americans in Vietnam fighting to serve th eir country . . . 

and not while POW’s are held by the enemy. After that, we would consider it.” 

On January 31 of this year when he was asked about amnesty, he said; “Amnesty 

means forgiveness. We cann ot provide forgiveness for them. Those who served 

paid their price. Those who deserted must pay their price, and the price is not a 

jun ket in the Peace Corps or something like tha t, as some have suggested. The 

price is a criminal penalty for disobeying the laws of the United States. If they 

wan t to retu rn to the United States, they mu st pay the penalty. If they 

don’t wan t to return, the y are certainly welcome to stay in any country that 

welcomes them.”

The lines were drawn.

There is little point in questioning the mistaken etymology, the petulant tone, 

or the ambiguous classification. And there is no point in taking sides. Amnesty’s 

trad itio nal function has been the healing of angry wounds. And tha t function can 

only be achieved by ratio nal and civil discourse. The only problem is th at on the 

question of amnesty—especially with the peace sett lem ent and the retu rn of the 

prisoners of war—passions run high an d divisions run deep, and we get retribution 

instead of reconciliation. And we get nowhere. For regardless of how we feel, the 

question of am nesty is not a simple question of yes or no.

Amnesty involves questions of patriotism, legality, and morality. It conjures 

up feelings about national interest, duty, and individual conscience. It raises the 

poig nant and emotional question of equ ity: How do you justify letting draftresisters and deserters off scot-free when others, frequently against their wishes, 

went off to fight and were wounded or killed? It poses questions of national 

secu rity— Would it encourage mass evasions in the future? It faces complex 

practical questions. Should it be unconditional or tie d to some kind of redemptive 

service? Should there be a distinction between draft-evaders and deserters from 

the military?

In the light of such complex issues, one wonders if amnesty is an idea whose 

time has not vet come. The trouble is tha t the question has now been raised, and 

it must therefore be discussed and understood. But it must be discussed before 

it can be understood.

One cann ot help admiring the courage, the perseverence, and the patriotism 

of the POW’s. And one cannot help being irritated at some exiles who say they 

feel no guilt and would not welcome any act of implied pardon and certainly n ot 

one with any conditions attached . For one cannot help feeling that those who wish
883

to return should be expec ted to respond to the polit ical obligations that all 

citizens share. For while the indiv idua l conscience may instruct the political 

com munity— and it has the right and obliga tion to do so— it cannot direct it. 

In political affairs, the indiv idua l conscience must be responsible; ye t it cannot 

be sovereign. Perhap s this is the nub of the problem. The cou ntry should appreciate the courage and conv ictions of sincere conscientious objectors, even though 

it cannot excuse them from the consequences of breakin g the law. A person's 

conscience may tell him tha t the law must be disobeyed— and we cannot deny 

him that right— but since he lives in a society, he must accept the law ’s pen alty . 

Yet this does not exclude mercy. Th at is the problem: choosing between a policy 

of reconciliation and one of rigid adherence to the law. The dead will not be 

honored by the hardening of our hearts. Ye t evasio n and obedience cannot be 

regarded as equal before the law. For justice, tho ugh tempered with mercy, 

must first be just.

We have a lot of talkin g to do with one another.

Fathe r K en ne dy .

W ha tever judgmen t we make on the thorny issue of amn esty has to be made 

in terms of how we view the Vietn am war now— not in terms of how we viewed 

it five or ten years ago. At least in my own case, this viewpoint has undergone 

a significant change.

During the ear ly years of the war, I accep ted rather uncritica lly the prevailing 

opinion tha t our invo lvem ent in Vietnam was a good thing. We were helping 

South Vietnam in the face of an unju st attack by the North Communists. 

Our m otives were the best: we w anted to help a free people main tain their freedom. 

It was as simple as that.

I can ’t say that at any point I abandoned this position. It would probab ly 

be more accurate to say I’ ve simply become more and more confused and doubtful. 

Now that we hav e left Vietn am and I can see what we accomplished with all 

the bombing and killing and deva station tha t war ine vitably generates, it ’s hard 

for me to feel any longer that our involvement, there was a good thing. So much 

pain and suffering— for what? A fragile peace tha t leaves most of the vital issues 

still unresolved.

And what about our motives? I now have all kinds of misgivings about these, 

as well. When the clouds of dust kicked up by political expediency, popu lar 

journ alism, power struggles, special business interests, and a host of other factors 

that blur our vision hav e been cleared away, wha t will we see? When historians 

are fina lly able to sift all the evidence and give an obj ective explanation of why 

we fought in Vietnam, what will the y say? I don’ t know. But my instincts tell 

me it will probably be painful reading for Americans.

I try to imagine myself as an eighteen-or nineteen-year-old caught in the midst 

of all this turm oil and confusion. It is, say, 1968. I get my lett er from the draft 

board. Wh at do I do?

I honestly don’ t know what I would do. Jail, Canada, or Vietnam all seem 

like options I might possibly choose. When I think back to the days when I was 

eighteen or nineteen, I remember a young man try ing hard to figure out who 

he was. I certainly wasn’t in good shape to grapple with any complex moral 

questions. It was a time in m y life when I made many stup id decisions. Or perhap s 

it would be closer to the truth to say tha t most of my decisions were made for 

me— by family, friends, prevailin g valu es in soci ety, or my own peer group.

It is these two considerations that make me hope we will grant amnesty with 

few if any strings attached . As an adult member of s ociety, I regret that we forced 

you ng men to make wha t I am sure was, for man y of them, a difficult decision: to 

serv e or not to serve. We were not asking them to defend their homes and fam ily 

and cou ntry. We were not asking them to go halfway around the world to light art 

unde clared war in an obscure litt le land for debatab le goals. We asked them to 

go wh ile h alf the world denounced the war and responsible leaders in our own country questioned its morality . And we asked this of v ery young men caught between 

the inner turb ulan ce of late adolescence and the external confusion of the 1960’s.

Life itself grants us no amn esty from bad decisions. If, in our heart, we know 

tha t we h ave made a choice for un wor thy reasons, we hav e to live with that knowledge. It is no small punishment. Whether our society, in this particular instance, 

should try to add further a punishment is hig hly questionable to me.

Fa th er M cN a l l y.
884

The war is not over. The agony will go on in V ietnam and here. Only the mode 

has changed. We are condemned to get out of this histo rical process of revolution 

in Southea st Asia in the same way we got in, slowly, painfully. As Fran ces Fi tzgerald comments in th e New Yo rk Revie w of Books: “ It will be done, if it is done 

by Presid ential fiat, accompanied by governmental secrecy, governmental deception, furth er confusion of the American public, and suffering from the V ietna mese.” 

Contrar y to the inflated rhetoric of the President, the Paris Agre emen t does not 

estab lish peace with honor in Vietnam. It simply removes the American armed 

forces from act ive i nvolvem ent in the continuing contest for the soul and bodies 

of a tormented people. In jus t effecting this, the President was carryin g out the 

will of the American people.

So w e are home. Veterans’ hospitals will minister to the bodies of the woun ded. 

Families whose men did not come home will nurtu re their loss in solitud e in the 

years ahead. A task remains: How will we come to terms with the psychic wound 

festering in our national soul? IIow do we lay to rest the Vietnam war and walk 

aw ay from the grave? His tory will pronounce its own judg eme nt in time. Rig ht 

now, we must come to terms with our troub led conscience.

What response should we make to those who refused to take part in this war? 

Thi s is an importa nt part of the healing task. Their motives were many. Some 

were prophetic idealists. Ma ny of these went to prison. Th ey chose this option 

because their intervision drov e them to a direct confrontation with the general 

will. Some are simp ly the sad results of a pampered generation raised to rej ect 

any leve l of moral value beyo nd their p hysical self-interest, to refuse respon sibility 

for the consequences of their acts. Some fled the cou ntry . Some deserted their 

units and their oath. What a bewildering complexity.

Into the judgeme nt of the course of action we should tak e goes an equal comple xity of values and practicalities. A tota l amnesty is jus t not a political possibil ity . If the whole cou ntry were composed of forgiving Francises of Assisi, it 

is not clear tha t tot al amnesty would be wha t is called for. Our laws offer the 

sincere conscientious objecto r alte rna tive service with legal recourse. The nation 

has the right to conscript an arm y for its legitim ate defense. The person who 

objec ts to the morality of this particu lar war understands that his proph etic 

witness involves a pena lty. How, then, are we to uphold the sovereignty of law, 

the necessities of the common good, and yet manifest compassion and bind up 

the nation ’s wounds?

Eac h one of us brings to this question a set of assum ptions. We differ irreconcila bly abo ut the justice of the war and its mode of prosecution. Yet we should 

be beyond the screaming inv ective of the “ peace” rallies of the past and the 

self-deceiving propaganda of the government. Can we forg ive one another? 

Can we at least grant the possibility of good intention? No one could wat ch the 

retur ning prisoners of war march down the ramp, with pride in themselves, 

confidence in their self-worth, and love of their country , without being moved.

We have this in common: we love what we know we as a people are capable 

of becoming. Th at kind of confidence in ourselves should enable us to reach out 

with generosity to offer a futu re to others. No one should have the door of redemption slammed in his face. After the far more divisiv e and ambiguous Civ il 

War, Lincoln wrote tha t “ the gove rnment can prop erly hav e no motive of 

revenge, no purpose to punish merely for punishme nt’s sake.”

Th e official position of the American bishops puts it best: “ We recommend 

that the civil authorities grant generous pardon of conv ictions incurred under 

the Sele ctive Service Act, with the unde rstan ding tha t sincere conscientious 

objecto rs should remain open in principle to some form of service in the 

com mu nity.”

F a th e r B r e n n a n .

E D IT O R IA L, AM ERIC A, MAR CH 18, 1972

Th e word “ amnes ty,” we are told with increasing frequency these past few 

months, derives from a Greek word meaning to for get.” It is a sad irony tha t one 

of the grea test obstacles any proposal of amnesty faces toda y is rooted precisely 

in our desire to forg et, to blot from the mind the painful memories of the Vietnam 

war. We should like to forg et abo ut the constant bombing missions in Indo china 

and the wee kly toll of dead bodies, includ ing those not our own. At home, we 

should like to forg et the punishment still to be paid b y those who opposed the war 

by refu sing to particip ate.

There are, we are told, more than .500 draft resisters in federal ja ils, about 3,900 

und er indictment and some 70,COO young exiles who voted with their f eet against
885

the dra ft and the war. To attem pt to forget them is only to nurture delusion. 

Lik e the bombed-out terrain of Indochina, the disjo inted existence of these dra ft 

resisters does not cease to exist because we bear r ela tiv ely little about it.

The forgetting tha t we need— and that the word amn esty refers to— has little 

in common with this switchin g off of the mind. It must be activ e and delib erate , 

the offsp ring of a stron g and generous heart. Alon g with its twin , “forgive ,” 

amnesty aims prim arily at a healing of wounds afte r a divisiv e conflict.

The practice of amnesty has had a long and distinguishe d career, stre tching 

bac k to the Greeks in 40 B .C., and inclu ding a series of precedents in our own brief 

history. Five American Presidents, includin g Washington , Madison and Andrew 

Johnson, issued amn esty proclama tions in connection wit h armed rebellions 

against the government. And in 1947, President Truman granted amnes ty to 

1,523 violators of the Selecti ve Service Act during World War II.

If President Truman could extend forgiveness to men who violated the dra ft 

laws during a war considered just by the vast majori ty of Americans and their 

polit ical leaders, how can we And it impos sible to gran t amnesty afte r a conflict 

that has divid ed the American conscience as much as it has deva sted Indo china?

On this level the problem is esse ntia lly a simple one; we must choose betw een a 

policy of reconcilia tion and one of rigid adherence to the law. Cer tain ly it is far 

easier to be generous afte r a vic tory, espe cially if we feel that tru th and jus tic e 

hav e trium phed along with our arms. Bu t to turn national self-doubts abo ut the 

Vie tnam war against many of those who first questioned the wisdom of our policies 

would be cruel and unconscionable.

On another level, of course, the amnes ty question bristles with complexities 

which mus t be sorted out. Chief among them is the task of devising, if one can, 

a wa y of determ ining who “ resisted” the draft and who merely “ dodged” it.

The objection, voice d by Selecti ve Service Directo r Cu rtis W. Ta rr among 

others, that amn esty would underm ine the dra ft syste m by appearing to condone 

the actions of thousands who fled the cou ntry has a certain plausib ility. Bu t a 

questioning of the dra ft is an alread y accomplished fac t in the eyes of many. To 

place all the blame for this state of affairs on the shoulders of dra ft resisters is 

unrea listic. The war itself must bear a large share of respo nsibility for any present 

disa rray of the Sele ctive Service.

Moreover, the question of conscience cann ot be ignored here. The American 

Catho lic bishops, among others, have gone on record supp ortin g the right of 

sele ctiv e conscien tious objection , a right not recognized by existing dra ft regulations. Continue d punishment, by exile or imprisonment, of men who followed 

their conscience in this matter har dly reflects glory on American justice.

Th e suggestion, also voice d by oppon ents of amn esty, that the pardoning of 

dra ft resisters would dishonor the American dead and wounded in Vietnam also 

misses the main point. Am nesty aims simply at reconciliation. If we wish to heal 

our national divisio n, we must presume— there is nothing else we can do— that 

those w'ho fought and these who refused to fight on grounds on conscience acted 

in good faith. The dead will not be served by the hardening of our hearts.

Ano ther question remains: How sweeping should the amnesty be? If an amn esty 

proposal is to be equitable it should certain ly look to all those who have refused 

in conscience to serve in the war. Wh at about deserters? Tru e, before the law, 

their situation differs sign ifica ntly from tha t of dra ft evaders. Excluding them all 

from amn esty on principle, howe ver, ma y fail to make cognizance of the peculiar 

complexities of this war. Certa inl y amnesty for deserters will not sit well w ith a 

grea t par t of the nation . Th ey will remain troubled tha t conscience in some cases 

prompted the questionable response of desertion. Still, the issue is not strict 

justice but pardon; some provision for deserters seems necessary.

Framing an equitable and coherent amnesty plan will clearly tax the ingenu ity 

of our most gifte d Solomons. More importa nt, at the moment, is a commitm ent on 

the part of a large number of Americans to the goal of reconciliation through a 

generous use of the Pres iden t’s amnesty powers.

E D IT O R IA L OF TH E LA M P/ A C H R IS T IA N U N IT Y M AGAZI NE---- R ESO LU TIO N A DO PTED BY

T H E 8T H G EN ER A L C H A PTER O F T H E FR A N C IS C A N FR IA R S O F T H E A T O N E M E N T

P U B L IS H E R S O F T H E LA M P, O CTO BER 1973

The most urgent need facin g the Un ited States at this momen t is the need for 

reconciliation. After a decade of bitter dispute over the Vietnam war, Americans 

need to be broug ht together — to bind up our w’ounds, to unite in a common 

purpose to promote peace and justice.
886

Thousands of young men are currently in prison or in exile from the United 

States because of th e positions which they took on the Vietnam war. Their status 

is both a symbol and a cause of division in our country. Amnesty would be a 

healing and reconciling measure designed to overlook the past and move a unite d 

nation into the future. Amnesty is not pardon. In judicial tradition, amnesty forgets or blots out the 

offense for the sake of reconciliation and a new beginning. Let us remember in proclaiming amnesty we affirm our tradition of defense of conscience, the duty 

of individuals to judge for themselves what is right in the face of conflicting 

duties, and the foundation of our society on higher moral law. This war has brought no heroes but only victims. Therefore let us not be vindictive toward one group to assuage the sufferings of others. While we are making 

peace with our enemies, let us be reconciled among ourselves. We cannot restore to life our dead soldiers, nor undo the hurts and wounds of 

others. We cann ot undo the devestation of the lands and people of Indochina. 

We can repe nt and work for post-war healing. An unconditional amnesty would 

free us for a responsible and serious effort to rebuild our divided people. RESOLVED: th at this position, which applies the Gospel message to a critical 

moral issue, be communicated to the President of the United States and the 

appropriate members of the United States Congress.

ED IT O R IA L , T H E LO NG IS LA ND CATH OLIC , FE B R U A R Y 8, 1973

At a time in our history when Americans are burying the last soldiers killed in 

Vietnam and awaiting the return of th eir prisoners of war, it may seem foolhardy 

to discuss the idea of amnesty for war resisters. President Nixon, perhaps taking his cue from a Gallup Poll that showed 58 per cent of the public opposed to 

unconditional amnesty, sta ted tha t those who left the country to avoid military 

service “must pay the pen alty” if th ey wish to return. Mr. Nixon did not draw a distinction between those who deserted the military 

and those who refused service, eithe r by going to another land or subm ittin g to jail sentences. “Now, amnesty means forgiveness,” he said. “We canno t provide 

forgiveness for them.” To many, the President’s determination to exact the poun d of flesh was appalling. They found it hard to reconcile the Adm inistration’s ability to make 

peace with Hanoi, Peking and Moscow with its refusal to make peace with the 

sons of our own society. When the Vietnam ceasefire was announced, Cardinal John Krol, President of 

the U.S. Bishops’ Conference, reiterated the bishops’ concern for “those young 

men who have suffered for their refusal to participate in the war because of 

sincere conscientious belief.” “The Catholic bishops,” said Cardinal Krol, “have urged th at the civil authorities grant ‘generous pardon of convictions incurred under the Selective Service Act, with the understa nding that sincere conscientious objections should 

remain open in principle to some for of service to the comm unity.’ ” President Nixon rejected this alternative. “Those who deserted must, pay their 

price and the price is not a jun ket in the Peace Corps, or something like t hat, as 

some have suggested.” The Iowa Catholic Conference this week, in calling for amne sty for “all those 

young men who refused or ceased to fight and bear arms” in the Vietnam War, pointed to one aspect of the issue which may be caught in the craw of some of our 

decision-makers. “In overwhelming numbers the young men in question, those who have refused 

to fight in this war, have done so as a ma tter of conscience, and their decisions 

have contributed to the awakening of th e conscience of a whole people,” said the conference. “At an early and unpopular time, these young men concluded that 

most Americans today hold: This war is wrong.” The ICC called the war a “tragic conflict” and asked whether Americans can 

“now, in good conscience, punish them for having realized in anticipation what 

most of us know.” The debate over the question of amnesty will u ndoubtedly continue for some 

time to come. At least three pieces of legislation are pending in Congress. Several 

Church anti-war and civil rights groups are scheduling a national conference on amnesty in Washington. An international conference of dra ft exiles is slated for 

Paris on Feb. 19.
887

The answer, we feel, is somewhere in between Mr. Nixon’s “no forgiveness, 

pay the pen alty ” approach and that advocating unconditional amnesty. We too 

feel the need to help heal the wounds in this country caused by the war and 

reiterate our support of the alte rna te service concept.

Reconciliation—or as Cardinal Krol suggests, ending the suffering and hate— 

also means th at those who opposed the war also m ust adopt a stance which leads 

to healing the wounds.

A hard-line att itu de at either extrem e leads to continued divisions, suffering 

and hate.

E D IT O R IA L ON AM NES TY BY FR . ED W ARD J . O’D O N N ELL , ED IT O R ST . LO U IS R EV IE W

Amnesty is a Christian Response of reconciliation without pursuing the determ ination of right and wrong. People can look to the past and see th e suffering 

and d eath of servicemen as an argumen t again st amnesty. Instead we suggest that 

they look to the future and accept amn esty as a means of burying the last horrible 

rem nants of a nationsapping war.

ED IT O R IA L, TH E CATH OLIC R EV IE W , BY R O B E R T J . S IE V E R S , E D IT O R , MAY 10, 1972

U.S. citizens have pointed east to Berlin, to Czechoslovakia and other Eastern 

European countries where guarded borders and walls sealed off free movement and 

access and rightly said th at such barriers reflect on the caliber of communist life.

A similar so rt of comparison can be made in this country, where an average of 

80 dra ft dodgers and deserters cross into Can ada each week. Some simply flee 

military service. Others do so because they refuse to be a part of a war they feel 

is unjust and immoral.

There are walls, in America, boxing in young people who find no reasonable 

alternatives to service in a war they oppose. Some choose pr ison; others, exile.

The problem is one that affects more t han a few. An estimated 70,000 are in the 

ranks of the Vietnam-era draft evaders and milita ry deserters.

Their future is clouded by emotions and politics. And there are, besides the 

personal issues, the larger ones of the impact of amnesty on armed forces still 

fighting in Vietnam.

Two days of congressional hearings—the first in 20 years on am nesty—brough t 

out the complexities of the problem as well as some vital considerations. It is 

these facts th at ought to tem per our own attitudes about amnesty.

Even in arguing for a deferment of amnesty until after the Vietnam hostilities, 

Major General Benade, deputy assistant defense secretary for military personnel 

policy, confessed t ha t “it is possible to make a moving and persuasive argument on 

eith er side of this question.”

Yet the history of this country on amnesty and the weight of testimony a t these 

hearings oblige us to consider the welfare of young men who were forced to act 

before the rest of the nation fully grasped the issues.

Robert C. Ransom, whose son was killed in Vietnam, observed; “I would subm it 

that the untenable position into which we forced these young men is responsible 

for their predicament tod ay.”

Two bishops—one Methodist an d one Catholic—raised their voices for amnesty.

“ We tru st we have not witnessed a perm anen t exodus from our country but 

that the exiles will re turn to their homeland,” said Bishop John Wesley Lord of 

Washington, D.C., United Methodist Church. “I t will be a sorry day for our 

natio n when conscience condemns.”

Bishop Flanagan of the Diocese of Worcester, Mass., could not only point to 

last fall’s statement of U.S. bishops requesting amnesty for conscientious objectors 

but could add his personal note:

“I personally support the proposal for some form of legislation or executive 

order which would grant amnesty to these men and provide alternative service 

oppo rtunities for them. I would further advocate that this service should not in 

any way be punitive but rathe r should be a form of service beneficial both to the 

individual and to the community. The men who fulfill this honorable service 

should have the same GI benefits as those provided for men who serve in the 

armed forces.”

The Constitution empowers the president to grant pardons. And they have.

George Washington granted amnesty to the farmers who staged the Whiskey 

Rebellion of 1794. Lincoln provided for a general amnesty to those who signed 

an oath of allegiance to the Union more tha n a year before Lee’s surrender at 

Appomattox. Calvin Coolidge gran ted amn esty to 100 military deserters after
888

World War I. An amnesty board formed by Harry S. Truman pardoned 1,523 of 

the 15,805 men convicted of violating the Selective Service Act. The pardons 

incidentally came on Christmas Day, 1947.

The Vietnam war is different, providing many more reasons for amnesty. 

Henry Steel Commanger put it well: “ If the war in Southesat Asia is a mistake 

from which we are even now extricating ourselves, is it jus t th at we should punish 

those who—at whatever cost—helped to dramatize th at mistake?”

Sta tem en ts an d L e t ter s of I n d iv id u a l C ath olic s

L E T T E R OF R EV . TH EO D O R E H ESB U R G H , C .S .C ., P R E S ID E N T , N O TR E DA ME U N IV ER SIT Y

U n iv e r sit y of N otre D ame,

Of f ic e of t h e P r e s id e n t,

Notre Dame, Ind., March 2, 1974.

Hon. R o b er t W. K ast en m eif .r,

Chairman, Subcommittee on Courts, Civil Liberties, and the Adm inistration of '

Justice House of Representatives, Washington, D.C.

D ea r C ongres sm an K astf.n m e ie r : I write to lend my support to legislation

th at would grant universal and unconditional amnesty. I respectfully request 

th at a copy of this letter be included in the record of the hearings of the Subcomm ittee on Courts, Civil Liberties, and the Administration of Justice of the 

House Committee on the Judiciary.

The deep scars of the Vietnam War remain with us. We have not overcome the 

frustration, division and disunity th at afflicted our country as never before since 

the Civil War. The Vietnam War produced a cleavage of the young and the old, 

a cleavage between those who saw the war as an obscenity an d those of the military 

indu strial estab lishm ent and the government who prosecuted the War, with 

enthusiasm at times. There was perhaps never before in o ur history such division 

between the military and the civilian.

The havoc caused by the war is gruesome. Fifty thousand young men lost their 

lives and another half million young Americans will be ar the scars of the war on 

their bodies. We spen t $130 billion to devasta te the earth and its people and 

millions of Vietnamese— North and South—and their neighbors— Laotians and 

Cambodians—were killed and maimed and wounded.

Less tangible havoc also was caused by the war. There never was a time when the 

most sensitive people in our society, those morally sensitive to values and to what 

is right, have been more alienated to the ir own country, many to the point of 

leaving it. One of the unfinished parts of the business th at faces us today is to 

strain ourselves a little to bring back into the fullness of the society in which we 

live in America those who have been totally alien ated from it, simply because 

the y could not accept its values in the time of war.

There are those in prison today because they stood up a nd said, “ I will not serve 

in such an immoral conflict.” Some 70,000 men, more tha n the number killed in 

Vietnam, went to places like Canada and Sweden because they felt th at they 

could not live in this country if it meant th at they would have to take part in 

something they did no t believe in. I think th at it has been of grea t moral value to 

this country that so m any young people have been willing to make extreme sacrifices—to go to jail or go abroad—simply because they wanted to show tha t the y 

really believed something so deeply that they would put their freedom and their 

futures on the line for it. I think the coun try should cherish people like this. I 

think that there is so much good will a nd so m uch virtue in all of this th at we 

should act firmly to bring about a reconciliation.

While unconditional amnesty may create some problems because of the wide 

divergence in the circumstances and motivation of the many different kinds of 

personal actions involved, I believe t ha t the situation that created our difficulties 

today was so horrendous th at it is best to get it totally behind us. Inequities th at 

might be occasioned by total and unconditional amnesty would certainly be 

matched by other numerous inequities in the present situatio n. Our recent past 

does not do us proud, bu t I thin k th at we m ust look to the future with love, with 

hope, with courage and with dedication. Great inequities have been comm itted, 

and it is likely th at they can be removed only by grea t generosity and 

magnanimity.

Sincerely,

(Reverend) Theodore M. Hesburgh, C.S.C.,

President.
889

STA TEM EN T ON AM NES TY SIG N ED BY DOR OT HY DAY AN D R EV . TH EO D O R E M. 

H ESB U R G H , CSC AN D 47 O TH ERS, O CTO BER 1973

We ask again tha t the public and the government face the fact that for all tha t 

has happened in our Vietnamese war, only men who are young hav e been or are 

being punished; and tha t in disproportionate numbers these men are non-w hite 

and from low economic esta te.

We are speaking of those men who are or were imprisoned for refusing induction; of those who expatria ted themselves before or after induction or who have 

live d undergroun d; and of those given “ less-than-hon orable” or other discrim inatory discharges from the military.

We believe tha t justice— justice tha t is symm etrical in its equ al trea tment of 

all citiz ens— requires an uncon dition al amnesty, pardon, or fair restitution for 

all men who are charged with, may be charged with, or hav e been conv icted for 

offenses rising out of their refusal to particip ate in the militar y actio n in Sou theast Asia, or for offenses against mil itary law while doing so.

A country which has found only a lieutenant guilty for My Lai, has found no 

one legally culpable for the massive deception revealed in the Pentagon Papers 

and in the disclosures of late r lawlessness and deceit in the wa r’s conduct, has 

seen its honor sacked by Wa terg ate and similar affairs— such a cou ntry so long as 

it ma y belong to a ju st people cannot now impose its pena lties only on these young 

and powerless men. Th at c anno t be fair, cannot be in keeping with our best ideals.

Our war, we trust, is over. The nation now has much to do, much tha t it can do 

onl y as a unite d people. Ther e is too little mutual trust among us, too much that 

is corrosive of hopes and spirits.

A general and unconditional amn esty would be a simple and clear act. It would 

be a sign tha t we want to live at peace with each other, that we want to end 

within ourselves the awfu l divisions caused by the war, that we want to get on 

with the work of mak ing this a better land.

Who can be opposed to such an act? Can the dead speak, and advise us; or can 

any speak for them? Would we really want to turn to pare nts of the dead and set 

them spea king against each other, some urging amn esty and some opposed?

Are veter ans (including for mer prisoners of war) opposed? Th ey ap pear divided, 

many for, many against, many indifferent. Although interest and w eigh t do atta ch 

to the views of the veterans of this war who were them selves enlisted men, even 

the y, in the tradition of our civi l soci ety, have now to advance those views as 

citizens, and not as a distinct group.

Can Congressmen and members of the administration, both present and former 

ones, who put us into the war and who kept us in it so long, hav e it in their hearts 

to abso lve themselves while the y hurt these young men?

Can those Congressmen who opposed the war, in the way th e public empowered 

them to do, want to hurt those powerless men who opposed the war in the only 

ways the y could or knew how, men who in the process helped crea te and sustain 

tha t public disgust with the war which finally gave some success to Congressional 

effort to end it?

We believe that Congress and the President are, in fact, ful ly free to act for 

amn esty, and that the y cannot rightfully claim to be held bac k by constit uen ts’ 

pressures. We believe amnesty, as was segregation in th e South, is an issue wherein 

statesm en would not trade on fears but can, and therefore should, lead. We belie ve 

that the people will respond help fully to forthrig ht leadership, as did people in the 

Sou th when segregation was outlawed.

We believe tha t if Congress or the President will give the American people the 

opportu nit y to be generous and just, the nation will be so. We ask for tha t opportun ity .

Does this nation, that was established to “ form a more perfect unio n” and to 

“ insure domestic tra nquility,” not want to heal itself? Do we not want to tak e 

this chance on justice?

There are few’ a cts a government can decide upon that clearly and imm ediately 

benefit individ uals; amnesty would be one. We think it would be even more. We 

would be say ing to ourselves that w’e now put the Vietnam war behind us, with its 

terrible freigh t of bitterness and recrimination, and of corruption and bru tality 

too. We would signal a decisive turning aw ay from the darkness of the war years, 

and tow’ard rebuilding and restoring and healing, both here and, as we are mor ally 

bound to do, in Indo-Chin a. We also would be affirming to ourselves tha t America 

has no ti me or need for vengeance against ourselves, and especially not against our 

you th. We would, instead, be welcoming the return, as free members of a freer 

society, of young men who can give much to the futur e— theirs and ours and our 

coun try ’s.

31-6 58—74-----58
890

STA TEM EN T OF FA T H E R RIC H ARD A RM ST RONG, M .M ., D IR EC TO R , TH E C H R IS T O PH ER S, 

FEB R U A R Y 27, 1974

I urge the Congress of the United States to gra nt an unconditional amnesty 

to the hundreds of thousands of Americans who are in need of it because they o pposed our nation’s involvement in the longest, most bitterly divisive foreign war 

of its history.

It is now time to bind up the wounds of tha t war, and to move ah ead with the 

task of constructing a more humane global and domestic society—a task we have 

scarcely begun.

Equity no less than compassion o ught to move us to forget the painful divisions 

of the past, to grant the kind of am nesty which offers the best hope of reaching a 

true spirit of reconciliation in o ur country.

Unconditional amnesty for those who need it is a vital first step towards th at 

reconciliation.

STA TEM EN T O F JE S U IT SE CO ND A RY ED U C A TIO N A SSO C IA T IO N , R EV . ED W IN J . 

MC D ERM O TT, S .J ., P R E S ID E N T , M AR CH 1974

March 7, 8 and 11 may be very tense days in the Nation’s Capital; they may 

become days tha t history will record as Days of Reconciliation. On the Hill, he arings will take place before the House Jud icia ry Committe e concerning those 

Americans who did not comply with the Selective Service System or who deserted 

the Armed Forces of the United States. One moth er will be there to testify and she 

will describe her two sons; one made her a Gold S tar Mother; the other is in exile 

in Canada. Militarists will testify; pacifists will testify. The discrepancies of these 

hearings is a “sign of our tim es.” Who are these people? With a t least four possible 

positions to take, where do we stand ?

Who are involved? Numbers are h ard to come by but these are circulated.

Draft Refusers: 7,400 convicted by the Federal Cou rt; 39,000 referred to 

the Depa rtment of Justice for prosecution; 5,700 with cases pending.

Deserters: 32,000 still at large; about 100,000 deserted during the Vietnam 

war.

Exiles: about 35,000 in Canada an d a few other countries.

Court-Martial Convictions: 550,000 men were convicted by military courts 

of offenses th at would not be crimes in a civilian context (e.g. AWOL, disobedience).

Less-than-honorable discharges: abo ut 450,000 veterans of Vietnam era.

Where do we stand as a Christian? We can (1) refuse to consider amnesty, (2) 

call for conditional amnesty, (3) call for unconditional amnesty, (4) do nothing.

1. Refuse to consider amnesty. This is the stance Mr. Nixon has publicly 

repeated. Others refuse to consider amnesty also a nd give reasons: such men 

violated the law and if this act is unpunished the whole fabric of legal sanction 

in the United States will be pulled to shred s; they had oppo rtunities to req uest 

the status of conscientious objectors ; when these men deserted their country, 

other young men had to die in th eir place.

2. Conditional amnesty: Mr. Roybal (D-Cal) introduced a bill “to offer 

amnesty under certain conditions to persons who failed or refused toreg ister 

for th e dra ft or to be inducted into the Armed Forces.” He wanted the draft 

resisters to agree “to serve for a period of two years in public service.” Those 

who want “conditional amne sty” seem to w’ant to protect four values: political obligations, respect for conscience, equity, and reconciliation.

3. Unconditional amnesty: This position has been worded by Ms. Abzug 

(D -N Y) : “To exonerate and to provide for a general and unconditional 

amnesty for certain persons who have violated or are alleged to have violated 

laws in the course of protest against the involvement of the U.S. in I ndochina.” 

Legislators who seek unconditional amnesty declare tha t the Congress an d/or 

the President have bower to declare this amnesty (U.S. Const. Art. II, Sec. 

2); they urge it as the only practical way of reconciling our Nation; they see 

any other approach as an eye-for-eye retribu tion or even vengeance. They put 

absolute amnesty ahead of nationalism. They propose it as the radical lesson 

of love from the Gospel.

4. Do Nothing. “ Leave it up to others who know’ more abo ut the problem.’ 

Where do other people stand?

American Bishops, November 16, 1972 (near the end of Vietnam involvement): “ It is v itally imp ortant that Americans now turn their attention to 

the ta sk of reconciliation. . . . This war can well leave a residue of bitterness 

which could poison our national life for years to come. . . . All possible
891

co nsid er at io n m us t be giv en to th ose yo un g men , wh o, be ca us e of sinc ere 

co ns cien tio us belief, refu sed to par ti cip ate in th e wa r. A yea r ago, we ur ge d 

‘t h a t th e civ il auth ori ties g ra nt ge ne rous p ar do n of co nv ictio ns in cu rr ed u nd er 

th e Se lective Se rvice Ac t, w ith th e unders ta ndin g th a t sinc ere co ns cien tio us 

ob je ct or s sh ou ld re m ai n op en in pr in ci pl e to some form of se rv ice to th e 

co m m unity.’ ”

Io w a Cat ho lic Co nferen ce , Feb ru ary 16, 1973: “ We st ro ngly ur ge th a t 

am nes ty be ex te nd ed to all thos e yo un g men who refu sed or ce ased to tigh t 

an d b ea r a rm s for th e U .S. (T he y) ha ve don e so as a m att er of c on scien ce, an d 

th eir d ec isi on s ha ve c ontr ib ute d to th e a w ak en in g of t he c on scien ce of a wh ole 

pe op le. Can we now, in good conscie nce, pun is h th em fo r ha vi ng realized in 

an ticip ati on w ha t m ost of us no w kn ow ? . . . We ur ge : he al th e wou nd s, 

im m ed ia te ly res to re th es e you ng men to th eir ful l r ig hts as A merican c itiz en s. ”

Con ferenc e of M aj or Su pe rior s of Men (C M SM ), M ay 28, 1973: “ We 

co ns id er am nes ty to be a po sitive act of co mpa ssion direc te d to our fellow 

citiz en s w ho are in pr ison o r in e xile. . . . A m ne sty does no t m ean ‘fo rg iv in g’ ; 

it is n o t a ju dgm ent o f co nd em na tio n, nor an act of co nd on at io n. I t is sim pl y 

an act of ‘ fo rg et ti ng,’ a wi ping cle an of th e slat e, an ov er lo ok ing of any past 

leg al tr an sg re ss io n. . . . We be lie ve th a t a unive rs al and un co nditi on al am nes ty will do th e m os t a t th is tim e to pro m ote reco nc ili atio n. I t sh ou ld 

ap ply to al l in di vi du al s wh o ha ve br ok en law s re ga rd in g co ns cr ip tion in to 

m ilitar y se rv ice o r w ho h av e w ithd ra w n from p art ic ip ati on in m ilitar y service . 

Thi s will a ffec t th os e wh o ha ve a vo id ed th e dra ft th ro ugh go ing u nde rg ro un d 

or leav in g th e co unt ry , th os e wh o ha ve be en im pr ison ed be ca us e of nonco op er at io n or for ms of co ns cien tio us o bj ec tion not reco gn ized by our co ur ts, 

and th os e who ha ve left m ilitar y serv ice or ha ve been im pr ison ed be ca us e of 

re fu sa l to t ak e p a rt in co m ba t. (W e ar e not he re s pe ak in g of c rim in al o ffense s 

unre la te d to th e dra ft and th e w ar. )”

Di ocese of Oak land , So cia l Ju st ic e Co mmiss ion, Ja n u ary 15, 1973: “ A 

re sp ec t for th e fre ed om of co nscie nce of b oth p art ic ip ants an d no n-p ar ticip ants 

in th e war, a re ga rd fo r C hr is tian va lues , an d th e ne ed to go fo rw ar d in th e 

work fo r a world w ithout w ar will le ad Catho lics to a co ns cien tio us decis ion 

in re ga rd to co nd itio na l or unc on di tion al am nes ty . It is th e ju dgm ent of 

th is Com miss ion th a t a no am nes ty po sitio n is in co ns iste nt w ith th e Go spe l 

va lues as well as w ith a wise gov er nm en ta l po lic y to r e- un ify th e nat io n aft er 

th e tu rb ul en ce cau sed b y th e w ar .”

Sta te m en t of R ev . Antho ny C ap izzi, S.J., C am pus M in is ter, St. J o seph ’s

C olle ge, P hil adelph ia , Apr il 6, 1973

I t is no w tim e th a t we en su re safe pa ss ag e ho me fo r anoth er grou p of PO W s: 

th e men wh o m ad e th e pr in ci pa le d an d mor al decis ion to re si st th e w ar e ffort an d 

now m ak e up th e ne ar ly 200,0 00 dra ft re sister s and m ilitar y des er te rs in civ il an d 

m ilitar y prison s, in exile in oth er co un trie s, an d wh o ar e under gro und in th e 

U nited Sta te s.

The Ni xo n A dm in is trat io n ha s ta lk ed of m ak in g a he alin g pe ac e. W he th er we 

ag ree or n ot w ith t he m or al p os itio n of war re sister s, th er e can be no he aling of th is 

co u n tr y ’s wou nd s w ithout a ge ne ral am ne st y. A m ne sty wou ld br in g ba ck in to 

useful citiz en sh ip th ou sa nds of exile d you ng pe rson s, it wo uld en d th e em ot io na l 

an d e co no mic suf ferin g o f th e f am ilies o f th os e wh o ar e in pr ison or ex ile, or o th erwise su bje ct to pr os ec ut io n.

For th os e of us who ha ve co nd em ne d th e w ar as an outr ag e th er e is a clea r 

re sp on sibi lity to su pp ort th e men wh ose op po sition to th e w ar led th em to re sist 

m ilitar y service . Tho se who do not ag ree th a t th e w ar was im m or al and ille gal 

m ust co ns ider th e ne ed to re unit e th e co un tr y.

A m ne sty is a tr adit io n in American so ci ety wh ich ha s he lped to pr es er ve th is 

un ion of dive rse pe op le fo r tw o ce nt ur ies, fro m th e lim ited am nes ty de clar ed bv 

th e C on tinen ta l Co ng ress aft er th e R ev olu tionar y W ar th ro ugh th e di ct um of 

A br ah am Lincoln follo wi ng th e Civil W ar — “ w ith malice to w ar d no ne , w ith 

chari ty fo r all .”

We ur ge th a t no co nd iti on s w hat ev er be att ach ed to am nes ty an d th a t nei th er 

alt ern ati ve no r nat io nal service , no r an y fo rm al de cl ar at io ns of w ro ng do ing be 

re qu ired . The m ajo ri ty of w ar re sister s di d w ha t th ey be lie ve d to be ri ght. T hei r 

co nv ictio ns ha ve a re as on ab le ba sis in law , na m el y th e N ur em burg Pr in cipl es of 

1950, of which th e U nited S ta te s was on e of th e pr in ci pa l arc hitec ts and par ties . 

Pr in ci pl e V II st ate s th e co op er at io n in an unju st w ar or co op er at io n in vio la ting 

th e law s of w ar fa re its el f a crim e under In te rn ati onal Law. T hus, m ost war 

resistor s, w ith a ge ne ral or spe cific kn ow ledg e of th es e Pr in cipl es ha ve simply
892

been fulfilling what they believed was their obligation to resist unlawful acts of 

war. While it may be true general amnesty will include a few persons who did not 

act o ut of conscience, the alte rnative, a case by case review, would be fa r worse. 

Such a review would end up punishing those who are unacc epta ble to the people 

doing the review and would inevitably discriminate aga inst the poor, the less 

articulate, and those with less pull.

In 1868, when a total amnesty was granted by President Johnson after the 

Civil War, he quoted Lincoln: “ I hope there will be no persecutions, no bloody 

work a fter the war is over.” To continue to punish and prosecute the yo ung men 

who conscientiously opposed the war will furth er divide us as a natio n. An amnesty 

would be a healing and reconciling act, enabling the return of m any more young 

men who have been sepa rated from us by the war.

L E T T E R FR OM T H E QUAD-C IT Y C EN TE R FOR TH E ST UDY O F PEA C E & N O N V IO LEN C E

Qua d-C ity C e n t e r fo r t h e Stu dy

of P ea ce & N o n v io len c e,

Davenport, Iowa March 11, 197Jt

.

To Members of the U.S. House of Representatives Judiciary Committee.

We urge th at Congress not wait for Executive action on amnesty, but act 

prom ptly to provide unconditional relief for the hundreds of thousands of young 

Americans who are facing criminal or administrative penalties for non-violent 

acts of evasion or resistance to the draft, to the military or to the war in Southeast Asia.

After counseling hundreds of d raft age Americans regarding their rights under 

the Selective Service System, from 1967 to 1972, we are overwhelmingly convinced 

th at these young men were acting from conscience positions. Their fault, if any, 

was th at they discovered the terrible mistake of Vietnam before most other 

Americans did.

In a larger sense, unconditional amnesty can be a much needed act of national 

reconciliation, healing the wounds of a war which has seriously torn apart the 

very fabric of American society, at home as well as abroad. If our legal system 

and our court procedures cannot be responsive to matters of conscience and to 

new knowledge and new facts, wTe may be condemned to live through more 

Vietnams and more Watergates. So to make the law of our land an unnatural 

absolute is to make captives and victims of us all.

Unconditional amnesty can mean, then, that we the people who make our laws 

readily assume the responsibility of adjusting those laws and their application to 

the higher demands of conscience and personal truthfulness. Judg men t in the 

absolute sense we can leave, with confidence, to God.

Father J ohn S. Smith, Director.

ST A TEM EN T OF ABBOT R A PH A E L W ALS H, O .S .B ., O F OM AH A, SUM M ER 1973

Our Country is in need of some gesture of magnanimity to bring us together 

again. Skepticism and depression are everywhere because of the Vietnam War and 

Wate rgate. We need something to pull us together again and our President 

campaigned on the promise to bring our country together. A presidential grant 

of amn esty to all who resisted the war in Vietnam would be that magnanimous 

gesture and would help to heal the wounds of war and put us in the direction of 

using the resources of this country for constructive purposes. I would be very 

much in favor of such an act of Christian charity.

L E T T E R FR OM R EV . FR A N K BU IS M A TO , OE M, SA N FRAN CIS CO , C A LIF .

C en te r fo r P ea ce & Socia l J u st ic e,

San Francisco, Calif., March 1, 1974-

H on. R o b er t W’. K a st e n m e ie r,

Chairm an, House Judic iar y Subcommittee No. 3,

U.S. House of Representatives, Washington, I).C.

Dear Congressman Kasten meier: Peace at home is as imp ortant as peace

abroad. An act of faith and reconciliation is needed to stop further punishment of 

young men who resisted the war in Indo-China.
893

Justice requires an unconditional amn esty, pardon or fair restitutio n for all 

men convicted or facin g conv iction arising out of their refusal to participate in 

the mil itary actio n in Sou th-E ast Asia.

A general land uncon ditional amn esty would be a sign tha t we want to live at 

peace with each other, tha t we want to end within ourselves the anguish of 

divisions caused by the war.

We should welcome the return as free members of a freer society these young 

men who can give much to the futu re— theirs and ours.

A forthright leadership by your Com mittee on behalf of Amnesty would find a 

positive response from the people.

Sincerely yours,

Re v. F rank Buismat o, OF M, Director.

L E TTE R FR OM LO RAN T. LE NTZ

R ice L ak e, Wis., March 16, 197J+.

li o n . R ob er t K as te nm eier ,

Representative, Second District of Wisconsin,

House Office Buildin g, Washington, D.C.

Dear C ong res sma n K as te nm ei er : Due to the distance invo lved , I was not 

able to atte nd the hearings on am nesty held by your sub-committee in Washington 

this week. I am writing this letter in the hope that you and you r sub-committee 

will give the argum ents I set forth here consideration when you write your recommendation to the full committee.

In December of 1969 I was convicted of refusin g induction into the United 

States Arm y and sentenced to three years in federal prison. I served over a year 

and a half of tha t sentence in prison, nearly all of that time being spent in Springfield, Mo. I completed the remainder of the sentence on parole statu s.

It was and is my view tha t when the Armed Forces of the United States are 

engaged in the kind of immoral and illegal activit ies in which the y hav e been and 

still are engaged in Southeast Asia (and other part s of the globe), it is immoral 

and unconscionable for an indiv idua l to permit his body and/or mind to be used 

by the militar y or to cooperate with the mil itar y in any way. To surrender responsib ility for one’s own actions is to deny one’s integr ity and identity, and I 

would like to thin k tha t our society places more emphasis on those valu es than 

on blind obedience to conscienceless statism. Furth ermore, I thin k it is appa rent 

tha t the Sele ctive Service System (SSS) had saf ety valv es designed into it in the 

form of deferments so that those who might have prov ed most disruptive to the 

syste m were tem pted with an easier way out than confr ontation and the arm y was 

therefore able to contin ue to get bodies in order to wage illegal and immoral war.

Those of us who said “ No ” , whether through dra ft resistance or desertion, to the 

lun acy and imm orality which have marked this coun try ’s mil itar y ventu res 

were mer ely the van guard of the public as a whole, although I do not feel tha t 

the leg itim acy of our position lies solely in its acc eptab ilit y by the public. For 

example, if the ma jor ity of Germ ans in the 1940’s had supported the extermination of Jews, would tha t hav e detr acte d from the va lid ity of the objections of 

the opposition? In our own country, was the popular support of (or at best, lack 

of outrage at) the lynchin g of blacks a moral proof that the min ority who activ ely 

opposed such treatm ent of their brothers were the ones who were wrong? Th at 

public opinion now in regard to Vietnam has change d so rad ically from public 

opinion in the ear ly Johnson years is larg ely a tribute to those wrho did resist the 

gove rnm ent’ s coercion and worked diligen tly and at great risk to expose the 

gove rnm ent’ s lies.

We hav e heard a great deal lat ely abo ut vario us proposals for cond itional amnesty tied to some form of alte rnate service. I have obje ctions to alte rna te service 

on sever al different grounds.

One is that if the Congress were rea lly concerned with “ testing” the patr iotism 

of young Americans (which presumes, I suppose, tha t all older Americans have 

already had their patriotism “ tested” in some way ) in terms of some visible 

measuring stick su ch as partic ipa ting in ce rtain government programs, they w ould 

enact legislation requiring tha t eve ry American, regardless of economic status or 

sex, would perform service of some kind and there would be no policy of deferments. I am aware that such a policy has und oub tedly been discussed and I am 

aware that most citizens and, I believe, legislators pro bab ly feel that having a 

universal dra ft of that sort is not necessary to “ tes t” the patriotism of young
894

Americans and that legislators are well aware that people can serve the best 

interests of their country and their brothers and sisters in ways other than compulsory government service.

Given this prevailing attitude, requiring alternate service as a test of the loyalty 

of those who oppose whatever the current military policy happens to be smacks 

of gross discrimination. Shall patriotism for one’s country be defined solely by 

compliance with the current party line being handed down from Washington? 

Such an opinion must surely suffer since the revelation of the campaigns of deceit 

on the part of both the Nixon and Johnson administrations. Millions of Americans 

were exempted from the “l oyalty test” of compulsory military service by virtue of 

the fact that they were born female. Hundreds of thousands of others were able 

to avoid a confrontation with the SSS by utilizing the deferments that the SSS 

had provided for that very purpose. They passed their “l oyalty test” by going 

along with the rules of the game and not challenging the authority of the SSS to 

snatch up young men and use them for immoral purposes. I say that it is merely 

one more example of the government’s arrogance and vindictiveness to require 

those few thousand young men who either could not or would not escape service 

through the safety valve deferments of the SSS to “prove” their patriotism now 

by taking the “l oyalty test” of alternate service.

Another objection I have to alternate service is that it implies that those of us 

who opposed the Vietnam war and the draft, which ultimately led to our going to 

prison or into exile, or deserting, committed a crime to society and must therefore pay some sort of debt to society before we can be cleared of guilt and accepted again. The debt we are to pay is alternate service.

We have no debt to p ay— on the contrary, society is in our debt for our refusal 

to participate in one of the most shameful episodes in American history.

Perhaps the strongest objection I have to the concept of alternate service is 

that if one participates in such a program, he is submitting to the government’ s 

claim that it has a right to compel him to kill whomever the government tells 

him to kill or, failing that, to perform some necessary service that will free someone 

else to satisfy the government’s desires. In this manner, alternate service compels 

one to be a participant, albeit indirectly, in those very activities to which he 

objects.

Again, if one allows the government the authority to impose alternate service, 

he surrenders his right and responsibility to make major decisions regarding the 

way he lives his life in relation to his fellow man. It has always seemed contradictory to me that so man y of those people who claim that the federal government 

has a limited role in providing for the social and economic needs of the people 

of this country on the grounds of rugged individualism and free enterprise and 

who shudder at the prospect of such concepts as socialized medicine and nationalization of primary industries that exploit our natural resources, should at the 

same time be willing to delegate to the government the power to compel an 

individual to kill or to enable someone else to kill his fellow man.

I regard the issue of amnesty vis-a-vis Congressional legislation to be one not 

of society’s “forgiving” or “forgetting” the “crimes” committee by those of us 

who would not be coerced into supporting the Southeast Asian war, but of removing those penalties which society had no right to place on us in the first place. 

It is little enough to demand as restitution for the way we have been treated when 

our only crimes were trying to keep from adding to the shame of our country’s 

immoral actions in Indochina and seeing through the government’s policy of 

lying before the rest of the country was willing to admit that the policies of the 

government and the military were and are based on secrecy and lying to the 

American people.

As a draft resistor who will certainly be affected b y whatever Congress decides 

on the issue of amnesty, I wish to go on record that I will not condone nor participate in any program of amnesty other than complete, unconditional amnesty. 

I did not compromise my conscience in 1969 and I cerntainly am not going to do 

so now so that Congressmen w’ho lack the courage to do justice by those men who 

served their country by trying to awaken her conscience can continue the reprehensible policy practices by the Nixon administration of using war resistors as 

scapegoats for the problems with which they themselves have burdened our 

society.

We fought for our country’s honor and our personal honor in military and 

civilian courtrooms, in prison cells and stockades, in foreign lands— far from our 

loved ones and our homes. Congress should vote for unconditional amnesty in 

the realization that it is they, not we, who are in need of forgiveness for their 

complicity with the Executive branch of government in the waging of war in 

Indochina.
895

It is tr ue th at we resistors do no t ne ed am nes ty nea rly so m uc h as th e na tion 

as a wh ole n ee ds i t. IF th is c oun tr y is ev er t o repl ac e th e de ep s en se o f de gra dat io n 

bro ught about by ye ar s of go ve rn m en t sl au ghte r in an d lyin g ov er Vietnam (and 

now W ater ga te ) w ith a sense of socia l pu rpos e, it is ne ce ss ar y to m ak e a cle an 

br ea k w ith th es e b ankru pt policies of de ce it an d deh um an iz at io n an d to st op 

op pres sin g thos e who op po se su ch policies. U nc on di tion al am nes ty is th e on ly 

way t h a t th e Co ng res s an d th e pe op le ca n av ow t heir d isap pr ov al o f pas t m ista ke s 

an d th eir de te rm in at io n to m ak e a new be ginn ing.

It is America’s good fo rtun e th a t th er e ar e men to wh om she ca n m ak e su ch a 

st ate m ent of a new di re ct io n to he rself an d to th e wo rld. It is on e mor e way in 

wh ich th e war r es iste rs will ha ve se rv ed th eir co un try.

L oran T. L e n t z.

A STA TEM EN T FOR AM NES TY FR OM K E N N E T H B U RROW S, B E L L E N D O R F , IO WA

I am not a s tu dent of po lit ics, an d I m ak e no pre te ns e to offer a sh ar p po lit ic al 

an alys is of th e iss ue of am ne sty. I am a co ns cien tio us ob je ct or , pr es en tly per ­

fo rm ing alt ern ati ve service , an d m y ar gum en ts in fa vo r of am ne st y ar e ba se d 

la rg ely on th e mor al qu es tio n invo lv ed as well as w ha t ap pea rs to be a Co nst it uti onal dilemma. In oth er wo rds, is it ri ght for th e U.S . to refuse to off er 

am ne st y to th os e who, in va riou s ways, op po sed th e w ar in Vietnam ? And, wo uld 

no t a re fu sa l to offer am nes ty now be sy m pto m at ic of a lo ng -s ta nd in g Am eri can 

m al ad y which vi ol ates th e C onst itutional gua ra nte e of rel igi ou s fre ed om ?

At th e o uts et it is im port ant to clear th e a rg um en t of th e obv ious, l es t it con sume 

to o muc h tim e. The re ar e war re sister s (by na me) cu rr en tly in exile, in prison or 

in th e un de rg ro un d pu re ly a s a re su lt of th ei r refu sa l to live up t o a re sp on sibi lit y. 

Unm ov ed by qu es tio ns of th e m ora lity of vio len ce, th eir goal wa s, an d is, sol ely 

to av oid contr ib uting them selves. In a wa y, am nes ty does not to uch th em . T hei r 

crim e is a lack of am bi tion , not op po sitio n to w ar ; a refu sal to offer them se lves 

to an y wor thwhile cause. While we can ri ght ly fin d th ei r st and de vo id of m er it, 

we sh ou ld be ar in m in d th a t th ou sa nd s of ot he rs wh o liv e th e sam e e sc ap ist ph ilo sop hy will ne ve r be sin gle d ou t be ca us e th ey will ne ve r be ca lle d up . U nder thes e 

circ um stan ce s, it ha rd ly see ms de m oc ra tic to sin gle out ev en th is batc h of th e 

lis tle ss fo r pu ni sh m en t an d le t th e re st go fre e. How ev er fa irly th e wh eels of a 

d ra ft lo tt ery tu rn , th a t ki nd of sy st em does not re qu ire all men to ac co un t for 

th em se lv es . (If we ar e go ing t o begin to discuss ea ch ci tize n’s ob lig atio n to re nd er 

serv ice to th e co untr y— an d I be lie ve th a t ob lig atio n ex ist s, pro vi de d it is not 

confi ned to ju st m ilitar y service —th en le t’s fin d a sy stem th a t as ks serv ice of 

ev er yo ne and qu it link in g it on ly to th e d ra ft eli gib le.)

The ar gum ent fo r am nes ty ne ce ss arily look s to th os e wh o ar e in exile, in p ris on 

or in th e under gro und be ca us e th ey we re m ov ed by sinc ere go od co nscie nce to 

re je ct th e vio lenc e in V ietn am . T he ar gum ent fo r am nes ty rec og nize s th a t in 

seek ing re co nc ilia tion fo r th es e m en , oth er s n o t as hi gh ly m oti vate d m ay be 

reco nc ile d in th e process. B ut th e arg um ent fo r am nes ty plea ds th a t th e good to 

be a cc om plishe d in th e for m er f ar ou tw ei gh s th e ha rm to be ch an ce d in th e l att er.

Why s ho ul d th e s in ce rely m oti vate d b e re co nc ile d sin ce t hey ref us ed t o d o w ha t 

ot her s did n o t refu se? W hy sh ou ld we reco nc ile th e living dis side nt s aft er filling 

gr av es w ith th e pat ri otic? We m ust re m em ber th a t Amer ica’s his to ry is re pl ete 

w ith pro ud ta le s of pe op le wh o fled co un trie s be ca us e of pe rs ec ut io ns an d in ju stic es, ho pi ng to find a b ett er wa y. We hail to day th e works of So vi et dis side nt 

w rite rs, ci ting t he m fo r th eir s in gu la r co urag e an d th eir in di vid ual s ta nds ag ai nst 

th e in ju stic es th e p erce ive. Y et we are in co ns iste nt . W he n su ch wou ld-be he roes 

su rfac e a t ho me, we st ri ve to co nd em n th em .

The w rite rs of th e U.S. C onst it uti on to ok pa in s to guar an te e th a t th is wo uld 

ne ve r ha pp en — th a t American s wou ld not su ffer th e sa m e per se cu tion s th ey fled 

in Eur op e. In re ac hi ng for th a t en d, th e w rite rs in st al le d free do m of relig ion in to 

th e C onst itution. I t m ean t n o one wou ld eve r b e f or ce d to se rv e a n ati onal p ur po se 

in op po sitio n to relig ious co nv ictio ns . Ho w well ha s th a t guar ante e wo rn?

Nex t to an in flat ed love an d re sp ec t fo r our m ilitar y, n o t we ll. E ac h d ra ft 

eligib le m an is th eo re tica lly giv en th e op tion in th is c ountr y to s er ve in th e a rm ed 

forces or to not serve. B ut it is a nar ro w p a th cut fo r th ose who ch oo se not to 

se rv e. T he burd en s of pr oo f of co ns cien ce ar e on th em . T he ge nu inen es s of th ei r 

co ns cien tio us ob je ct io n is ju dged by th eir d ra ft bo ar ds . T hei r co ns ci en tio us ob ­

je ct io n to a part ic ula r w ar is c all ed im po ssible— it’s eit her p ac ifi sm acros s the bo ard 

or it is no th in g. T hei r co ns cien tio us ob je ct io n to w ar w it hout fo rm al rel igious 

co nv iction s is a weak arg um en t to off er. And ev en th ose wh o seek st atu s as co nsc ientio us ob je ct or s and are gra nte d it ar e re qui re d to co ope ra te w ith a nd su bm it
896

to a system they view as immoral by purpose. In summary, for those opposed to 

war, the options are few. There may be some kind of religious freedom, bu t there 

is little of freedom of conscience, and the two are vitally, inherently linked.

If we still maintain th at ours is the best way—if we say freedom of conscience 

should be subordinated to needs of war and nationalism —then let us adm it ours 

is not the free country we once dream ed abo ut. If we insist on punishing those 

whole moral convictions have caused them exile or imprisonment, let us admit 

th at freedom of religious belief is not for everyone, all the time. If we refuse to 

offer a mnesty now, let us adm it th at our military needs comm and more respect 

than one of our most cherished freedoms.

In the wider analysis, amne sty is already a late step. The natio n has walked 

on the freedoms of those now needing amnesty by not remaining true to its Constitutio nal pledge. Amnesty could function as an apology for that offense. By 

announced American ideals, it is a moral imperative.

From the president on down, rhetoric abo ut amnesty condoning criminal acts 

has muddied the water. Criminality is not at stak e as much as freedom. Indeed, 

if the asserting and pursuing of a free conscience is to be held as criminal, there 

is no point in talking of freedom anymore, except in past tense. The amnesty 

issue has challenged government to define the limits of religious freedom. That 

freedom, along with the lives of thou sand s who exercised it, is what now hangs 

in the balance.

American Exiles in Canada: A Social and Psychological Follow-u p 1

(By Saul V. Levine,2

 M.D., Associate Professor, Department of Psychiatry, 

University of Toronto) 

abstract

The end of the Vietnam War and some forms of amne sty as a possibility have 

both had an unsettlin g effect on American draft dodgers and deserters in C anada. 

While many had established successful lives in Canada, they were often still 

plagued by self dou bt and ambivalence. The most common negative emotions 

exacerbated recently have been guilt, depression, anger, anxiety, dehumanization, 

alienation, and shame. Until the final chapter on the war is written, until the 

level of ambiguity diminishes, there will still be an emotional toll take n from 

these young men.

For young American men who find themselves in Canada for reasons having 

to do w ith the Vietnam War and U.S. military, 1973 has been an unsettlin g year. 

Many of these exiles (draft dodgers and deserters) had finally, afte r much effort, 

reached a psychological stage wherein they could look to the future, settle down, 

and build rewarding lives for themselves and the ir families outside the United 

States. Bu t with the end of the Vietnam War and some form of Amnesty at least 

a possibility, they have once again found themselves tom and confused. If they 

are not questioning themselves abo ut their reasons for being in Canada, for having 

left the military, their paren ts, the States—then others are. Much had alrea dy 

been written abo ut these men (Christy, 1972; Emerick, 1972; Kilmer, Locky, 

Wiley, 1971; Kline, 1971; Levine, 1972; Polner, 1972; Williams, 1971) and the 

furor died down, bu t they are now the objec t of public interest once again. In 

the p ast few months scores of media men, representing newspapers, radio and TV 

networks and station s from across the United States and the rest of the world 

(Japan, France, Germany, England) have been conducting interviews here with 

any expatriates they can find, and questioning them abo ut their feelings abo ut

the War, their families, amnesty, their plans, etc............ This has led to an

exacerbation of personal issues long dorm ant, and a reawakening of stro ng feelings. 

This autho r had studied this group a few years ago (Levine, 1972) and has been 

interested in following their personal progress and views from the point of view 

of their ada ptation to a situation which was originally extrem ely trying.

It is (still) very difficult to know or even estimate the total number of these 

young men in Canada. The most accu rate and verifiable inform ation from the 

Departme nt of Citizenship and Immigration reveals th at approximately 27,500 

draft-age men applied for Canadian citizenship between Janu ary, 1965 and Septem1

 M an us cr ip t su bm itte d fo r a fo rthc om in g spe cia l iss ue o f th e Jo urn al of Social Issu es.

2

 S au l Le vine is Assoc iate P ro fe ss or of Psy ch ia tr y a t th e U ni ve rs ity of Tor on to whe re he 

Is also D irec to r of th e M en tal H ea lth Cl inic a t th e H os pi ta l fo r Sic k Ch ild ren. His in te res ts an d pr of es sion al ex pe rie nc es are dive rse, hu t cu rr ently he is mos t invo lved in th e 

soc ial effects of di ffe rent life styl es . He ha s pu blish ed stud ie s an d pa per s on ur ba n com ­

mu nes. speed us er s, po ve rty an d ps yc hi at ry , br ie f ps yc ho th er ap y w ith ch ildr en , an d In di an 

m en ta l he al th , am on g othe rs.
ber, 1972. One must assume that at least some of these men emigrated for reasons 

tot ally independent of the War or the military. In addition, there is a presumably 

large, bu t undefined number of American exiles in Canada who have not been 

able to att ain landed immigrant status because of insufficient “po ints” (money, 

job, education, skills, etc.). On the basis of information from a variety of sources 

(antidraft programs, National Council of Churches, Amex etc.) it is estim ated 

th at approximately 15-20,000 men are in this situation, probably fewer than in 

1970. Many of these men planned to come into Canada first, and apply for immigrants’ visas while here, bu t a recent (November, 1972) change in the imm igra ­

tion Act no longer makes this a possibility. There are thus a large number of men 

“tr apped” in C anada—they can’t return to the States for fear of prosecution, and 

the y can’t make themselves known to Canadian authorities for fear of deportation. 

The relatively free interchange across the border is down to a trickle, whereas in 

past days there was tremendous traffic in both directions. To these figures one 

could also add a large num ber of depen dents now living with these men (wives, 

children). Given these less-than-satisfactory estimates, we are probably dealing 

with a population of between 40,000 and 50,000 Americans in C anada for reasons 

directly related to the m ilita ry (Dee Knight, 1973).

This is far more tha n the number allowed by the U.S. government (4,000) 

(Buchanan, 1973), and far less than estim ated by the various Anti-Draft Programs 

(75,000-100,000). These figures do not include the many thou sand s of young 

men who have come up here for a few m onths over the past few years and then 

returned, nor do they encompass those up here for ideological reasons bu t not 

under any personal thr ea t of being drafted. They also do not include the exiles 

living in other countries (e.g. Sweden, Great Britain), or those living U nderground 

in th e United States, but some of our findings are obviously relevant to all of these 

groups.

In an earlier study (Levine, 1972), the author studied the process of adaptation 

of American draft dodgers and deserters arriving and living in Canada. These 

young men experienced many of the problems faced by other immigrant groups 

(Bar-Yosef, 1968; Brody, 1970; David, 1970), but there were significant differences. 

It was ap par ent th at these expa triates tended to go through four fairly predictable 

stages in their first year in this country. The first was called disorganization, and 

referred to a sta te of pain, bewilderment, ambivalence, and intense loneliness. 

This was followed by the stage of Acting Out, characterized by impulsivitv, 

dropping out, occasional anti-social behavior, sudden departures and destructiv e 

relationships. The next stage was labelled Searching, wherein the individual began 

to explore himself and his interpersonal relationships, look for meaning in life, 

pursue academic and vocational interests, and develop some stable ties in Canada. 

The stage least commonly reached at the time was the final one, called Adaptation 

and Integration, during which time expatriates became totally integrated into 

the Cana dian scene—socially, economically, politically, even emotionally at 

times.

Reasons for the relative rar ity of this last stage were: the “forced” nature of 

the ir entry into Canad a; the comparatively short time here; the patriotism 

engendered in American you th (present in estranged exiles); the ambivalence of 

these young Americans; beckoning messages (family, friends) to come home; 

rese ntm ent by Canadia ns; a stron g supp ort network and social system made up 

of m any men in the same situation, and often supported by Americans (e.g. National Council of Churches). They thus tende d to remain Americans-in-Exile 

rathe r tha n become New Canadians.

There were other factors, however, th at predisposed to effective coping with 

the stress of this majo r move and successful ada ptation to Canada. It was found 

that those expatrirates who did better in Canada tende d to be older, and had 

pare ntal supp ort (not necessarily agreement), some college education, planned 

and prepared for the move in advance, contacts in Canada, an ideology or philosophic rationale for their actions, money or marketa ble skills, and considerable 

luck. It became appar ent that these middle class individuals were of the draft 

dodger group, while the deserters tended to be characterized by factors m itigating 

against easy in tegration into the social fabric of life here: relatively young, lack of 

sup port or preparation, unemployment and poor academic record, often prior 

emotional difficulties, and others.

What has happened to these men over the succeeding years and what is their 

situation at present? Over the past few months the autho r has had extensive 

interviews, both formal and informal, with m any exp atri ate Americans and those 

providing services to these men. Twen ty-two exiles were formally interviewed 

(twelve dra ft dodgers, ten deserters), bu t many more expressed their feelings 

freely and informally during discussions. On the basis of these intei views and
898

oth er information we can see th at a number of interesting developments have 

take n place and we can divide them into, (a) during the war, and (b) after the 

war’s end, rep atriatio n of prisoners and much talk of amnesty.

(а) As time went on and the Vietnam conflict began to app ear interm inable, 

more of these men achieved the level of stage four. The majority of draft dodgers 

took out citizenship papers and settle d into a new life here, convinced tha t return ­

ing to the United States was an impossibility, nor was it something necessarily 

desirable to them. The men were now more dispersed, into their own very personal 

thing, integrated into the Canadian community. Amnesty, just a few months ago 

was not even to be considered by either side, a nd in any case, preoccupation with 

the concept served to p reve nt effective assimilation. As mentioned above, deserters 

had a rougher time coping, and many retu rned to the States to face punishm ent 

or went Underground there. Yet, thousands of even this group began trying to 

make a good life in Canada. The expatriates began to “live” again—relationships 

deepened, roots were established, and a stable patte rn of living devolved. Wives 

and lovers, children, jobs, schooling, responsibilities—all these factors served to 

get these men thinking more in terms of their present and future, instead of just 

the past. By all o ur means of estimation (adm ittedly crude), the large number of 

young men were in a relatively emotionally healthy state. This may have been 

due to the process of att rition a nd selection (the weakest went back, for example, 

or never came originally), or to the relatively strong support network.

On the basis of my contacts with those Canadians and Americans here known 

to the exiles as sources of help (Council of Churches; Ainex; Toronto Anti-Draft 

Program; American Deserters Committee; Red, White and Black; Union of 

American Exiles; Committee to Aid Refugees from Militarism etc.), and with the 

men themselves, it was obvious th at there was a marked decrease in the number 

of “cries for help” by expa triates in emotional distress over the past couple of 

years. In other words, by far the majority of exiles were “making it ”.

(б) It is necessary to reiterate th at the end of the Vietnam war and the considerable public concern abo ut amnesty have had an unse ttlin g effect on the 

exiles in Canada (and elsewhere). Consequently, there has been an aggravation 

of painful feelings and thou ghts among the men and their families. Many had 

convinced themselves th at they were staying in Canada, th at this was “bett er” 

country, th at return to the States was morally wrong, and certainly th at their 

original actions were justified. Not only was this valid for many of them, but it 

was imp ortant psychological work for them to accomplish if they were to make 

any kind of reasonable life in Canada. Staying here would have been untenable if 

there had been a discrepancy between their feelings and their cognitive set—the y 

had to convince themselves, to maintain their emotional equilibrium, th at they 

had pursued the “right ” course of action. An ideology, a philosophical justification 

of the ir actions was necessary to prevent severe cognitive dissonance (Festinger, 

1957), and a severe blow to their self-esteem. Since the war’s end many have been 

urged to return home by family and friends, and with the departure of each 

individual (there have been a few), self-questioning becomes intense.

The possibility of return with minimal punishment, and difficulties here in 

Can ada (not the least of which is growing anti-Americanism) have suddenly 

served to u pset a nd confuse m any of the expatriates. There has not been a regression back through the four adaptive stages, but the kinds of thoughts and feelings 

present during the w ar have not become much more intense and painful. After a 

period of relative quiescence, more of the exiles have been coming recently to 

counseling centers for advice, to review their dra ft status and to receive emotional 

support.

Emotions

The degree and form of certain emotional states were particularly unique in th is 

group as a whole. The emotions were based on pre-existing personality and social 

circumstances, obviously, bu t were rema rkably coloured by the recent common 

experiences of the expatriates. While many had established successful lives in 

Canada, they were still often plagued by negative feelings originating in their own 

decisive actions in response to the war (even if the consequences of these actions 

were known to them beforehand). Self doubts and ambivalence lead to heightened 

levels of painful emotions; the ones most often seen in these men are guilt, depression, anger, anxiety, dehumanization, alienation, and shame.

Guilt

One of th e m ost pervasive of the emotions felt bv the exiles is one of guilt. This 

is no t as simple as th eir detractors might lead the public to believe, however; it is 

not simply a m att er of having done wrong, feeling remorseful a bou t their actions,
899

an d wish ing to at one fo r th ei r sin s. The pa ra do xi ca l natu re of th is gu ilt lies in th e 

fa ct t h a t th ey stil l feel a mor al ju st ific at io n fo r th ei r original ac tion s (d ra ft e va sion 

or de se rtion) , th a t th es e a ct io ns were in fa ct co urag eo us a nd hon ou ra bl e. W hy t hen 

fee lin gs o f gu ilt ? Th is is a m ul tifa ce te d em ot ion ba se d on a num be r of fa ct ors : (1) 

th e gu ilt ov er ha vi ng left ho me, of te n ag ai nst th eir pare nts ’ and fr ie nds’ ad vi ce ; 

n o t be ing ab le to re tu rn (le ga lly ); of te n re je cted , os tra cize d, critic ized ; (2) th e 

gu ilt ov er ha vi ng left th ei r co unt ry ; ev en in st ro ng di sa gr ee m en t w ith it s policies, 

leav in g th e countr y to wh ich on e ha s be en bro ught up to love is an ex trem el y 

th re at en in g act to ca rr y ou t; (3) th e gu ilt ov er not ha vi ng ta ken th eir pu ni sh ­

m en t— in jai l, for ex am ple— as m an y o th er s di d; (4) th e gu ilt ov er not ha ving gone 

un de rg ro un d an d fo ug ht t he s ys tem , as still o th er s di d; (5) th e gu ilt ov er th e fa ct 

th a t 55,00 0 oth er me n, m an y lik e th em , we re kil led in th e Vietnam war, an d 

hu nd re ds of th ou sa nd s injured, when th ey too co uld ha ve come to C an ad a (m an y 

we re te m p te d ); di d th eir be ing in exile ca us e th e un ne ce ss ary death of yo un g men 

els ew here? (6) th e gu ilt o ve r n ot ha vi ng ser ve d in th e m ilitar y— “do ing o ne ’s d u ty ” 

was h am m er ed in for ye ar s pr io r to t heir d ep ar tu re , an d wa s th us dif fic ult to den y; 

(7) th e feelings of gu ilt e ng en de red by n ot seeing a lo ve d one ag ain , es pe ciall y if he 

or s he die s (p ar en t, sib lin gs, friend etc.) wh ile th e exile is in Can ad a, is espe ciall y 

po ig na nt a nd in te ns e; (8) th e gu ilt o ve r h av in g kille d— some d es er te rs had d on e so 

wh ile o n ac tive d u ty in Vietnam ; (9) th e p atho lo gi ca l (neu rotic ) gu ilt bro ugh t w ith 

so m e of th em from ea rlier da ys , ei th er m ak in g its elf m an ifes t no w or co nt in ui ng 

to plag ue th e indi vi du al . G ui lt is th e sin gle mos t co mmon affecti ve sta te fe lt by 

th es e men , b u t it is clo sel y re la te d (cas ua lly in m an y instan ce s) to de pressiv e 

fee lin gs.

De pre ssi on

Var ying de gree s of de pr es sive sy m pto m at olo gy we re see n. How ev er, de pres sion 

as a s tr ic t diag no sa bl e clinica l e n ti ty wa s pro bab ly no mor e co mmon th a n in th e 

co m pa ra bl e po pul at io n of C an ad ia n or American yo un g men a t ho me . W ha t 

was seen wa s a de pr es sive mo od , a co mm on sa dn es s th a t pre dom in at ed ov er 

le ngth y pe rio ds of tim e an d in a vari ety of si tu at io ns. If loss of an im p o rt an t 

in di vi du al (o bj ec t) is a ne ce ss ary an d sufficient pr er eq uis ite fo r th e de ve lo pm en t 

of de pr es sive sy m pt om s, t he n m an y of th e expatr ia te s ha d ev er y reas on to m an ifes t 

th es e ki nd of feeli ng s an d be ha vi or . On e of th e im p o rt an t dif fer ences be tw ee n 

th es e an d C an ad ia n yo un g men is th a t th e la tt e r co uld alway s go do wn to th e 

S ta te s to vi sit or ev en liv e; th e exiles co uld n o t do so ex ce pt und er an as su m ed 

nam e and ta kin g serio us ch an ce s. The d ra ft do dg ers an d de se rter s ar e in th e 

une nv ia bl e po sition of po ss ibly ne ve r seeing th eir ne ighb or ho od s, towns , old 

friend s, and m an y sign ifi ca nt fa m ily m em be rs— th is is a real loss. In ad ditio n, 

m an y face d to ta l re je ct io n or lack of su pport , and we re le ft fee lin g es tran ge d an d 

al ie nat ed (see be low ). Fur th er m ore , in a sign ific an t num ber of cases ov er th e 

ye ars, th er e ha d be en actu al dea th s of p are nts or siblings ba ck ho me , w ith out a 

re un ific at io n or re co nc ilia tion of some ki nd . Fe elings of gui lt fol low ed by de pr es ­

sio n were quite co mmon in th es e in di vi du al s. W he n so m eo ne ’s se lf- im ag e is so 

in trin si ca lly en m es he d in a spe cific b u t co nt ro ve rs ia l and s erious co urse o f ac tion , 

an d th a t ac tion its el f co me s in to qu es tion , as ha s be en hap pe ni ng s ince th e w ar ’s 

en d, th a t in div id ual ’s self- es teem pl um m et s, an d de pressio n of te n en sues. For 

some th er e is a feeling of hav in g m ad e an irr ev oc ab le decis ion th a t he nc ef or th 

sti fle s any po ss ib ility of hav in g opt io ns; th a t is, th e id ea th a t a do or is bar re d 

to one , ev en if he ha s no in te nti on of go ing th ro ugh it, is, for som e, par ti cula rl y 

stre ss fu l. Thi s is espe cially so fo r th os e wh o ha ve be en bro ught up to be lie ve in 

unl im ited op tion s, an d for th os e wh o ha ve so m et hi ng warm an d se cu re (ev en 

mem ories ) on th e oth er side of th a t do or.

An ge r

All th es e em ot io ns ar e n o t m utu all y ex clu siv e, no r ar e th ey ne ce ss ar ily enge nd er ed by differen t si tu at io ns. T hu s we ca n fin d an exile wh o har bors fee lin gs 

of gu ilt an d sadn es s, y et is angr y a t th e s am e tim e. Like th e o th er em ot io ns th ere 

ar e m ul tipl e (co nscio us) ra tiona le s fo r th e an ge r. The exile ca n be angry a t th e 

American go ve rn m en t fo r co nd uc ting a b ru ta l or d isho no ur ab le w ar, fo r “ fo rc in g” 

a m or al di le m m a an d a pa infu l decis ion on him , for refu sing to gra nt am nes ty , 

or for de m an di ng r etr ib uti on and pu ni sh m en t. He m ig ht be an gry a t C anada fo r 

its of te n in di ffer en t or ev en ho stile re ac tion to th es e Ameri cans. He co uld be 

an gr y a t himself fo r ha vi ng o rigina lly des er te d or ev ad ed t h e d ra ft o r, co nv er se ly , 

fo r be ing wea k and re p en ta n t a t th e pre se nt tim e. So me ha ve ev en show n anger 

a t th eir fellow exiles fo r ju m pin g on th e am nes ty ba nd w ag on and re tu rn in g to 

th e S ta te s as soon as th e opport unit y pre se nte d its elf.
900

With some the anger manifests itself as a temporary resentmen t, but with 

others it is an all-pervasiv e seething and omnipresent hate. It is the auth or’ s 

impression tha t this latt er group was in (or in for) the most personal difficulties . 

They had not yet come to terms with their original actions , not yet been able to 

cope with their situation (no longer new), and were not yet havi ng the kinds of 

experiences necessary for livi ng— mut ually nurturan t personal relationships, 

satisfyin g occupations (job, school, activ ities ), and a sense of positive meaning 

to their lives. The y were often so preoccupied with the hostile forces “ out there” , 

tha t it made personal introspection and self-realization an impos sibilit y. Anger 

as a predom inant affec tive state appears to be t he most self-destructiv e of emotions 

in these y oung men because it seems to prevent a ny kind of reasoned action, even 

again st the hated obj ect ; it is a t once stultify ing and ultim ately self-d efeatin g. It, 

also seemed to be a harbinger of serious psychopa tholo gy, especially paranoid 

stat e, when seen to this severe e xtent .

Anxiety

For some of the exiles, a state of free-floating anxiety seems to be prominent 

in their psychological experience. Ma ny of these men are fearful, unha ppy, confused, ambivalen t, and indecisive. Those predisposed to this type of affect seemed 

either to be chronically psychoneurotic, or those with the least support resources 

(job, money, relationships, etc .). The latter also tended to be the youngest and 

least mature, and there was considerable evidence of difficulties in the past, 

especially in coping with major transitions.

Ambiguity , unfamiliarity, and lack of support are difficult stresses for any 

individual to cope with, and these a ccurately describe the situation for some men. 

The whole issue of amnesty has lent an air of ambiguity to almost all the men 

seen during this stud y, and has meant a great deal more personal upheav al. This 

type of stress is much more ominous in someone who has strong dependency needs, 

or where need for structure and routine is inordinate. When the anxiety became 

uncontr ollable or unbearable in the few cases with which I am fam iliar, it extended 

into intense fears and phobias, confusion and emotional paralysis, and even 

psychotic decompensation on occasion. In general, it was not so destructive, but 

certa inly was present in the majo rity of men I interviewed. It often took the form 

of “ existential angst” and served a useful purpose in the younger men as an aid 

to iden tity resolution. The problem, of course, is that many of the issues or tasks 

of adolescence had been to some extent resolved (or at least buried), but the 

possibility of amnesty changes the rules of the game.

De/iMmomzaZZon

One must be c areful before invok ing a p erjorativ e term such as dehumanization 

to describe the attitu des and behavior of a large group of individuals. But to the 

exten t tha t the severe stress of leaving home under duress has forced many of 

these men to protect themselves from the onslaughts of painful emotions, dehumaniza tion is an accurate description. Th at is, these individuals often avoided 

feeling fear, shame, guilt or other seven* discomfort by compartmentalizing their 

emotions and reducing their capa city to feel affect intensely. The dehumaniza tion 

was usually both object-directed and self-directed, and the results have been seen 

and cited elsewhere (Gro up for the Advanceme nt of Psychia try, 1964). Increased 

emotional distance from other human beings, diminished sense of personal responsibi lity for the consequences of one’s actions, increasing involvement with procedural problems to the detriment of human needs, inab ility to oppose dominant 

group attitud es and pressures, and feelings of personal helplessness. In most 

instances, the dehumanization was and is adap tive for the particular indivi dual, 

and served to stave off intense psychic pain and disorganization. In these circumstances, impulsive or irrational behavior was actu ally prevented by utiliz ing 

defense mechanisms of denial and isolation, keeping people and problems at a 

distance. There is a price, however, and in other situation s this mode of behavior 

becomes maladaptive, resulting in destructive interpersonal relationships and 

ultim ately, personal misery.

Alienation

Feelings of alienation are said to be common in contemporary society (Lystad , 

1969; Sykes, 1964), b ut my findings was that this was particularly prevalent and 

gnawing among the expatri ates. If alienation can be defined (Seeman, 1959) as 

feelings of normlessness, meaninglessness, powerlessness, isolation and selfestrangeme nt, then it is a state very commonly seen in this context. These young 

men have a great deal of diffic ulty feeling “ at home” in Can ada , in spite of the 

cultures having such strong similarities. Those who felt most alienated, however, 

seemed to be those for whom the Cana dian way of life was most different
901

from their own—for example, exiles from the Deep South of the United State s. 

In addition, growing and vocal anti-Americanism even among the New Left in 

Canada, has made many of the men feel unwelcome and uncomfortable here. 

Further, there are still many Canadians who resent the intrusion of men whom 

they see in simplistic reac tionary terms (cowards, spongers, dishonest, etc.). 

The men find themselves in particu lar difficulty if they view themselves as exiled 

Americans instead of New Canad ians. But in e ither case, it is a difficult time for 

an American of any persuasion to be in Cana da—th is country has become preoccupied with defining a national identity that seems to incorporate enm ity 

towards the States as part of the definition. Even sympath etic Canadians have 

little sym pathy for those here without landed immigrant status, and seem to 

resent any suggestions th at any men would return if amnesty were offered.

Related to the experience of alienation are feelings of loneliness, lonesomeness, 

and homesickness. It has not been an easy task for some of the expatriates to 

readily make warm friends in their adopted country. These feelings have become 

much more manifest since the end of the war and at least the potentia l gran ting 

of am nesty. Most of them know of open arms longing and waiting for them back 

home, and this merely adds to the dilemmas th at they face in Canada. It used 

to be tha t many of the exiles could rely on each other for supp ort and nurtura nce ; 

they often lived close to each other in specific communes or neighborhoods. With 

the dispersal of the men throughout the country and multiple moves (most moved 

three times in their first year here), they can’t even rely on each other to the 

same extent. Furthermore, pockets of Americans living to some extent isolated 

from the surrounding comm unity actually aggravate the feelings of alienation. 

Shame

A small proportion of th e men feel shame over what they have done (deserted, 

evaded the draft, left their country, estranged their pare nts). Related to this 

intense emotion are feelings of regret, embarrassment, and humiliation. Some of 

them feel strongly th at they made a serious mistake and have in fact behaved 

wrongly, even immorally. These men are tending to wan t to go back and face 

their punishment, even insisting on it to “clear their conscience” . It is difficult 

for these men to reveal their feelings to their compatriots.

I have been impressed by the Draft Counsellors’ att itu des in these cases like 

these th at I have seen—the guilt-ridden, asham ed individual is not subject to 

group hara ssment or antipathy, but rather is encouraged to pursue th at course of 

actio n which makes sense for him. He is actively helped to return to the S tates if 

th at is what he wants. While the extreme cases of this natur e are uncomm on, 

milder degrees of these feelings are present in a large m ajority of the men, and this 

makes for a grea t deal of intrapsychic ambivalence and conflict. Certainly regret 

th at they d idn ’t handle it differently is a very common feeling—thi s is especially 

po when they have seen re petitively their friends avoid serving by “ legal” means. 

Discussion

I have concentrated on these emotional states which are in essence negative 

(“ downers”), from the point of view of the individual’s personal happiness. I am 

convinced th at the Vietnam war and their handling of it have taken a considerable 

personal toll from these young men, even thou gh they weren’t in combat themselves. What they did took courage, in fact, and they paid for their own sacrifice 

in personal hardship and loss. While many of the men matured and are leading 

relatively satisfying lives, many of the above feelings will continue to haunt them 

for years to come. I would not call the ir experiences particularly growth-enhancing; if anything, there has been a slowdown in their outw ard thrust (intellectual, 

social, occupational) for most of them since leaving the United States.

Notwithstand ing the intense and poignant emotions fe lt by these men, it is my 

impression (and it is only that) th at there is no greater prevalence of serious 

psychopathology in this group tha n in any other comparable group. In spite of 

considerable and unusu al stress experienced by all of th em they are in general a 

resourceful and adaptiv e group. There are exceptions, of course, bu t any young 

adult group has a significant incidence of mental illness, emotional incapacitation, 

antisocial behavior etc. (Pasamanick, Roberts, Lemkau, Kreuger, 1959, Srole, 

Langer, Michael Opler, Rennie, 1962). The fact th at these men are new immigrants is no t sufficient data to lead to the conclusion th at they m ust have serious 

emotional problems; th ere is in fact evidence to the c ontrary (Sauna, 1970). These 

exiles are obviously not a psyc hiatric patient population. I made a distinction, 

then, between the classical clinical syndromes and the kind of emotions discussed 

above. The toll the war has taken is not manifested in mental illness statistics; 

it is seen, rather, in the d ay-to-day lives and preoccupations of these men; it has 

been considerable.
902

Can ad a pr id es its elf on ab ho rr in g th e “ m el ting p o t’’ ideal of American a ss im ilation of im m ig ra nt culture s an d do es m uc h to see to it th a t et hn ic m in or itie s m ai nta in th ei r un iq ue ne ss and flo urish he re. I t is now en unci ate d Fe de ra l go ve rn ­ m ent po lic y th a t cu lt ura l div er si ty an d th e co ns id erab le ric hn es s it affords is a de sira ble goal. I t is k no wn th a t adapta tion and a ss im ila tio n fo r all new im m ig ra nt s 

is a ch alleng ing ta sk (B ar -Y os ef , 1968; Brody , 1970) ; it is espe cially so when th e 

m ig ra tion is to a larg e exte nt in volu nta ry (D av id , 1970). Th e Ame ric an exiles ar e not ty pi ca l Ne w C an ad ia ns ; be ca us e of th e natu re of 

th ei r rela tion sh ip to th eir nat iv e co un try, th ey re ta in a uniq ue et hn oc en tris m (K lin eb erg, 1940) ev en wh ile att em pti ng to be co me par t of Can ad a. Th is is th e 

mos t pr im itiv e of th e s ta ge s of socia l pe rc ep tion , an d it e ffec tually l im its t he wa ys th a t new in fo rm at io n ca n be p roce ssed to a na rr ow a nd pe rson al fram e of r ef eren ce (G ro up for th e Adv an ce men t of Psy ch ia try, 1964). W ith th is co gn iti ve se t, it is 

dif fic ult fo r a refuge e from th e Am eri can m ilitar y or po lit ical sy stem to even a t­ te m p t to give up his her itag e an d adopt a new co un try. In a sen se, th e su btle dif ferences b etwee n th e tw o co un tries mak es it ev en h ar der to d iscr im in at e be tw ee n 

th em ; th e cu ltur es an d life st yl es are so simila r, an d th e Am erican inf lue nce so pe rv as iv e in Can ad a, th a t th e level of am bi gu ity rises trem en do us ly . In to le ra nce 

fo r am bi gu ity is in ve rsely re la te d to th e degree of pe rson al co mfo rt an d se cu ri ty (F ra nk el -B ru nn w ic k, 1950); in a st ate of pe rs on al st ra in th en , m an y of th e me n ha d diffi culty t ole ra ti ng t hi s am bi gu ity. (I t m ig ht , in effect, be ea sie r t o adap t to a co m pl etel y foreign co untr y in th es e ci rc um stan ce s ra th er th an one see n as al m os t a re pl ica of th eir ow n.) So me m an ag e b ett er th an oth er s; th es e Am erican ar riva ls ha ve re ce nt ly bee n classified in to two gr ou ps — th e e xpat ri at es , for wh om C an ad ia n citiz en sh ip is a goa l, an d th e exile s, for wh om re tu rn to th e Sta te s ei th er t o resu me 

liv in g or “th e ca us e” is th eir goal (C olho un , 1973 ).

Am ne st y

The e nd of th e w ar and th e m ed ia co ve rage of th e wh ole issue of am ne st y ha ve 

fo rced th e exil es ba ck on to “ Pa ge O ne ” , an d co nf ro nt ed th em with th ei r own co nflic ts (see ab ov e) . In ad di tion to th e pe rson al dilemmas facing th e men , w ha t see ms to int er es t all t he rep ort er s de sc en di ng on C an ad a is “ W hat if ?” (a m ne sty is 

de clar ed ). The re is a s m uc h co nt ro ve rs y ragi ng in C an ad a ab out am ne st y as th er e is in th e State s, b u t for differ en t reas on s. In th is co untr y cit izen s see m re se ntfu l of th os e exiles wh o wish to re tu rn , co ns id er in g th em ex ploi ters an d in gr ates . The exile m ov em en t its elf is spl it alon g s im ilar li ne s: th os e w ith t heir Can ad ian ci tize nsh ip (and by ne ce ss ity th e re vo ca tion of th eir American cit izen sh ip) ha ve be en cr itic al of th e dra ft ev ad er s an d des er te rs wh o wish to re tu rn ho me . Th is deb at e ha s b een seen b oth in th e pop ul ar pres s an d ce rtai nl y rage s in th e cu rr en t e xpat ri at e press. Th ose wh o wish to leav e poin t out th a t th ey are not th e on ly newc om ers wh o ha ve left G 5% of It al ia n im m ig ra nt s to C an ad a sin ce World W ar II ha ve 

re tu rn ed to It aly ). Furt her, m an y clai m th at th ey n ev er cl aimed to wan t to s ta y in th is co untr y— it was a m att er of ne ce ss ity a t th e par ti cula r tim e. M an y are in th e proc es s of “ch an ging th eir m in ds” , or wrestlin g w ith mi xe d feelings. In par t it de pe nd s on th e natu re of th e am nes ty off ered, an d th e part ic ula r indi vi du al in 

qu es tion . The re is prec ed en ce fo r va riou s form s an d de grees of am nes ty (P re siden tial or Co ng ressiona l) be ing de clared in th e U nited S ta te s aft er mo st of its wa rs (C ivi l War, Worl d W ars I an d II ). It is im port ant to bea r in min d th a t a t th e pr es en t tim e th er e is a de fa ct o am nes ty in effect; th a t is, mos t exiles (d ra ft ev ad er s) wh o ha ve re tu rn ed re ce nt ly ha ve be en give n a m in im al se nt en ce of mild alt ern ate serv ice plus a pro bat io nar y pe rio d (Percy , 1973). Pre si de nt Nixon ha s ca tego ric al ly refu se d to gra nt an y form of am ne st y, wh ile som e in flue nt ial Co ng ressmen an d Sen ator s ha ve com e ou t in fa vo r of var yi ng ki nd s of am ne sties. The m os t lik ely co nc ep ts see m to invo lve un co nd itio na l am ne st y for dra ft 

ev ad er s an d co nd itio na l am nes ty (a fter im pr ison m en t or al te rn ati ve service ) fo r de se rter s, or co nd itio na l am nes ty fo r dra ft ev ad er s an d no am ne st y at all for de se rter s. Thi s po ssible di ch ot om y ha s m et w ith a gr ea t de al of op po sitio n, fo r it see ms to ba se an en tire judi cial ap pr oa ch on “ wh en someone saw th e li ght” . 

I t ha s als o be en criti cize d as favo rin g th e mid dle class yo un g man w ith resources (the dra ft do dg er) wh ile be ing unduly punitiv e to th e low er class in di vi du al (th e 

de se rter ). In th e m ea nt im e m an y or ga ni za tion s ha ve aligne d them se lv es on bo th 

sid es of th e am ne st y ques tion.3

s Pro -Amnesty Groups: AMEX, AC LU , Canadian Anti Draft P rogra m, FO RA (Families of Resisters for Amnesty), Safe Return Com mittee, Union of American Exiles, National Council of Churches, Amnesty International. Anti-Am nesty Groups: NA D (No Amnesty for D eserters), POW-MIA, President Nixon’s 

Adm inistration.
903

Who would return to the United States from Cana da if an amnesty was offered, 

and who would not? Let us assume for the purpose of this discussion that the 

amnesty offered was unconditional to both draft dodgers and deserters, with no 

form of punishment or alte rnative service demanded (there is no possibility, in 

my opinion, for this type of amnesty to be declared). With this kind of f antasy 

material, after months of speaking with exiles and those who work closely with 

them, I draw the following conclusions:

(1) virtu ally all exiles want an unconditional amnesty; the y want what all 

Canad ians have, the option of going to the State s, even if jus t for a visit.

(2) most would be sorely tempted to retu rn to their homeland.

(3) all exiles without landed immigrant sta tus in Canada, for whateve r 

reason, would r eturn to the United States.

(4) at lea st three quarters of the deserters would return.

(5) at least half the draft evaders would remain in Canada.

In other words th e majority would go home again under circum stances which do 

not appear to be a likely e ventuality. With modified am nesty plans, the numbers 

leaving Canada would be substan tially reduced; obviously a young man with a 

family must weigh very seriously the time he must spend in prison.

The last ten years have been an unh appy period for thousands of young men 

who left the United States under duress to avoid service in the military in a war 

which even the most conservative of politicians would consider a mistake, and the 

most liberal would label as a moral disaster. These exiles have suffered considerably. 

They are not held in high esteem by the m ajority of either Canadians or Americans. 

Many of them have renounced their American citizenship and have become 

Canadians, bu t thousands of them consider themselves to be patriotic Americans. 

Canadians have a right to expect the exiles to become citizens of their country, 

bu t the U.S. mu st first clarify its own plans. It is the auth or’s opinion that the la st 

chapter of the book of this ugly war cannot be completed until these boys are 

given the option of staying abroad or returning to their homes and families; 

America has m uch to gain by such a move.

B IB LIO G R A PH Y

1. Bar-Yosef, R. W. Resocialization and Re-Socialization: The Adjustmen t 

Process of Immigrants. Internatio nal Migration Review, 1968, 2:27.

2. Brody, Eugene. Behavior in New Env ironments-Adaptation of Migrant 

Populations Sage Publications: Beverley Hills, 1970.

3. Buchanan, Patrick, J. New York Times, February 20, 1973.

4. Christy, Jim. The New Refugees. Peter Martin Associates: Toronto, 1972.

5. Colhoun, Jack. Amex-Canada, Toronto, 1973, 3:7.

6. Emerick, Kenneth. War Resisters Canada. Knox, Pennsylvania Free Press: 

Philadelphia, 1972.

7. David, Henry P. Inv oluntary Inte rnation al Migration: Adaptation of 

Refugees in Behavior in New Environments. E. Brody, Ed., Sage Publications: 

Beverley Rills, 1970.

8. Festinger, L. A Theory of Cognitive Dissonance. Bow, Peterson’. New York, 1957.

9. Frankel-Brunnwick, E. In The Authoritaria n Personality T. W. Adorno, 

Ed., Harper and Brothers: New York, 1950.

10. Group for the Advancement of Psychiatry. Psyc hiatric Aspects of the 

Prev ention of Nuclear War Report No. 57, New York, i964.

11. Kilmer, R. L., Locky, R. S. Wiley, D. S. They Can ’t Go Home Again. 

Pilgrim Press, Philadelphia, 1971.

12. Kline, C. et al. The Young American Exp atriate in Canada: Alienated or 

Self-Defined? Amer. J. Orthopsychiat., 1971, 41 (1) :74.

13. Klineberg, O. Social Psychology, Henry Holt & Co., New York, 1940.

14. Dee Knight, Amex-Canada, Toronto. Personal Communication, 1973.

15. Levine, Saul V. Draft Dodgers: Coping with Stress Adapting to Exile. 

Amer. J. Orthopsychiat., 1972, 42(3), April.

16. Lystad, Mary, Ed., Social Aspects of Alienation. National Clearing House 

for Mental Hea lth Information, Washington, D.C., 1969.

17. Pasamanick, B., Roberts D., Lemkau, P. Kreuger, D. A Survey of Mental 

Disease in an Urban Population in Epidemiology of Men tal Disorder, A.A.A.S. 

1959.

18. Percy, Sen. Charles. AP—Toronto Star, March 12, 1973, P.81.

19. Polner, Murray. When Can I Come Home? A De bate on Amnesty. Anchor 

Books, Doubleday: New York, 1972.

20. Sanua, Victor D. Immigration, Migration and Men tal Illness in Behavior 

in New Environments. F. Brody Ed., Sage Publications: Beverley Hills, 1970.
904

21. Seeman, Melvin. On the Meaning of Alienation. American Sociological 

Review, 1959, 24(6) :783.

22. Srole, L., Langer, T. S., Michael, S. T. ,Opler, M. K. and Rennie, T.A.C. 

Mental Health in the Metropolis: The Midtown Manhatta n Stud y, McGrawHill: New York, 1962.

23. Sykes, Gerald E. Alienation: The Cultural Climate of Modern Man. 

George Braziller: New York, 1964.

24. Williams, R. The New Exiles: American War Resisters in Canada Liverright: New York, 1971.

State of New Hampshire,

House of Representatives,

Concord, March 12, 1974-

Hon. J ames C. Cleveland,

Representative, Second District,

Rayburn House Office Building, Washington, D.C.

Dear Representative Cleveland: I was happy to meet you in Hinsdale last 

week and enjoyed your visit. I would have liked a much longer period to talk 

with you but understand your scheduling problems. I also wanted the local people 

who were there to get a chance to talk to you, rather th an me trying to monopolize 

your time.

My main purpose in imposing another letter on you so soon is that I understand from the news t ha t there are hearings now in the House of Representatives 

relative to amne sty for Viet Nam War deserters and draft law violators. Last 

year during the regular session of the N.IL House a House Resolution No. 9 

was introduced, (not by me), which memorialized Congress to not grant amnesty 

to these people.

I am a member of the Military and Veteran’s Affairs Committee which held 

two days of hearings on this resolution. Prior to the hearings we were threaten ed 

with every thing from riots to personal attacks. We had Federal Marshalls and 

State Police as well as the normal security personnel in attendance to main tain 

order. Fortunately nothing happened other tha n some pre tty violent atta cks on 

the Committee Members verbally during the hearings. A couple of people were 

ejected from the hearing room for these tactic s and disrupting the hearings.

Since there was so much contradictory information presented I was asked by 

the Committee Chairman to research the subject and present my findings to the 

Committee before a vote was taken. The information in the enclosed speech 

which I made on the floor of the house is a result of this research. The B-52 information was included since m any allegations were made in Committee testimony. 

I feel I am equipped to speak on B-52 operations in the Viet Nam War since I 

personally spent over one and one half years on Guam and in Thailand with 

B-52s, and flying over every country in South Eas t Asia. The Committee vote 

was unanimous to pass.

When the committee report was brought to the floor of the House an attem pt 

was made to over turn it. This of course resulted in many pleas for compassion, 

forgiveness and love. After making the enclosed speech 1 accepted all questions 

for about 45 minutes. These questions (?), covered the whole range and I was 

called every thing from arm chair expert by some who didn’t know of my military 

background, to super-patriot, flag waver, vindictive SOB etc. When the whole 

floor debate was over and a division vote take n about 30 people were for am nesty 

and the rest of the House against it. I am sure th at some where in the files in 

Congress right now this resolution rests, and I thin k it fairly represents the feelings of N.H. residents.

The figures quoted by me in the enclosed speech are no doub t quite different 

today, smaller numbers of people are still involved, however the basic facts are 

as valid now as last year.

I think that it is extremely interesting th at the people who are crying the 

loudest for amnesty for Viet Nam War deserters and draft law violators are the 

same identical people who are crying the loudest th at the President is no better 

tha n anyone else a nd must obey the law. It seems that it depends on whose ox 

is being gored whether or n ot the law should be obeyed.

Hopefully you will make the effort to try and defeat any move for general 

amn esty in the House of Representatives. I would like very much also to hear 

your views on the subject.

Thank you for taking the time to read all this correspondence from one N.H. 

resident and State Representative.

Sincerely,

o

George F. Slicer.