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Amnesty - Congressional Proposals to Extend the Clemency Program
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Amnesty - Congressional Proposals to Extend the Clemency Program
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President (1974-1977 : Ford). Presidential Clemency Board. 9/16/1974-9/15/1975
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The original documents are located in Box 1, folder "Amnesty - Congressional Proposals to
Extend the Clemency Program" of the John Marsh Files at the Gerald R. Ford Presidential
Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 1 of The John Marsh Files at the Gerald R. Ford Presidential Library
April 8, 1975
MEMORANDUM TO:
PHIL BUCHEN
FROM:
JACK MARSH
Marty Hoffman at Defense called raising a question about the
hearings next Monday on the Clemency matter at which Charlie
Goodall is the leadoff witness.
Marty is also slated to be witness, and although he is aware of OUR
position on this matter, nevertheless, he would like to have some
guidance. Also, he suggests that we be certain that others appear-
ing before the Committee associated with the Administration simi-
larly receive guidance so that all of our people correctly reflect
the Administration's view.
My thought was it would be helpful if you would touch base with
Marty, and get some ideas as well as get from him his thoughts
on just what our position should be particularly among a number
of the legal issues that are part of the Clemency program.
JOM:cb
BERALD FORD LIBRARY
April 8, 1975
MEMORANDUM TO:
PHIL BUCHEN
FROM:
JACK MARSH
Marty Hoffman at Defense called raising a question about the
hearings next Monday on the Clemency Shatter at which Charlie
Goodell is the leadoff witness.
Marty is also slated to be witness, and although he is aware of our
position on this matter, nevertheless, he would like to have some
guidance. Also, be suggests that we be certain that others appear-
ing before the Committee associated with the Administration simi-
larly receive guidance so that all of our people correctly reflect
the Administration's view.
My thought was it would be helpful if you would touch base with
Marty, and get some ideas as well as get from him his thoughts
on just what our position should be particularly among a number
of the legal issues that are part of the Clemency program.
JOM:cb
FORD is LIBRARY GERALD
THE WHITE HOUSE
WASHINGTON
April 10, 1975
MEMO TO:
JACK MARSH
FROM:
RUSS ROURKE
Jack, Ted Marrs advises me that he has taken
a rather strong position with regard to the Goodell
memo. Basically, Ted suggests that the President
should not address himself at all to this proposed
legislation, and that, in any event, he should keep
all of his options open. Ted, therefore, agrees
with my recommended Option C on question No. 1.
Ted does not believe that Goodell is in a position
to express the various positions of the President.
He is not, as Goodell states in his memo, a member
of the President's staff, but is rather, Chairman of
a Presidential Board. Further, Ted is convinced
that this legislation was, for the most part, pre-
pared by Goodell's own staff.
In summary, Ted rips hell out of the entire
Option memo.
FORDO LIBRARY + BERRAL
THE WHITE HOUSE
WASHINGTON
April 10, 1975
MEMORANDUM TO:
JACK MARSH
FROM:
RUSS ROURKE
Jay French is extremely upset over the entire Clemency matter.
He is convinced that Goodell's memo seriously misleads the
President with regard to the nature of the problem. The issue of
constitutionality is a critical one, which is not even touched on in
the Goodell memo.
Moreover, S. 1290 is not even a contemplated subject of
discussion in the House hearings on Monday, in which Goodell
will participate. The hearings have been scheduled to discuss
four House bills, all relating in one form or another to amnesty.
OMB, which coordinates the testimony on the various executive
witnesses, has been unable to get a copy of Goodell's proposed
testimony.
Jay French feels that it is critically important that a meeting be
held tomorrow to accomplish this coordination. That meeting would
include Phil Buchen, Marty Hoffman, Charlie Goodell, Jay French,
Ted Marrs, a Department of Justice witness, etc.
Unfortunately, the Jerry Jones memo has a deadline of "COB" today.
Jay has attempted, without success, to contact Phil Buchen in an effort
to get Phil to put a halt to the Jerry Jones memo. He has an alternative;
he'll attempt to get Rod Hills to do this sometime this afternoon.
FORD LIBRART GENALD
THE WHITE HOUSE
WASHINGTON
April 10, 1975
Jack, Bill Nichols (OMB) called to seek some
guidance for the Justice Department witness at
Monday's hearings. (His concern ties in
directly with those same concerns previously
expressed by Ted Marrs and Jay French.) With
Charlie Goodell testifying first, and in the event
he addresses himself to Presidential positions
on the substance of any of these proposed bills,
he might, in effect, "cut the legs off" the sub-
sequent Justice Department witness as far as the
constitutional question is concerned.
Russ R
FORD is OERALD LIBRARY
THE WHITE HOUSE
WASHINGTON
April 9, 1975
RAR Recommendations:
1)
Option C. Goodell recommendation would violate the
President's basic practice of not commenting on possible
veto legislation, until the legislation is presented to him in
its final form.
2)
Option C. This option suggests, however, that you might
make a statement with regard to S. 1290, something we have
already recommended against. The rationale for selecting
Option C is that the matter of "folding all parts" of the
Clemency Board is a fundamental question that might well
come up in a Q & A, and can be answered hypothetically.
3) Option C. I would prefer that no statement be made on this
question, but if one is asked, I feel the Administration must
have a position.
4) Option D. "Broadening the scope" of any future Clemency
Board is a judgement for the Congress to make. Again, I
disagree with the Goodell suggestion that the President
"telegraph" his veto position on this question.
BERALD FORD
APR 8 1974
PRESIDENTIAL CLEMENCY BOARD
THE WHITE HOUSE
WASHINGTON
April 7, 1975
NOTE FOR JACK MARSH
Attached is a memorandum which I am sending
to the President, requesting that he establish his
policy on four questions which I expect to arise during
the clemency hearing before a House Judiciary Sub-
committee next Monday. The Subcommittee will treat
my statements as Administration policy, and I want
to ensure that I will be equipped to accurately reflect
what the President feels on these issues.
I will be grateful if you will give some attention
to the memorandum today or tomorrow, so that it
will be possible to have a clear statement from the
President on the four issues - whether by his checking
boxes on the memorandum, or in a meeting- - -by
Friday afternoon.
Charles Hoodell
CHARLES E. GOODELL
Attachment
FORD & BERMLO LIBRARY
PRESIDENTIAL CLEMENCY BOARD
THE WHITE HOUSE
WASHINGTON
ACTION
April 10, 1975
MEMORANDUM FOR THE PRESIDENT
FROM:
CHARLES E. GOODELL
SUBJECT:
Your Position on Congressional
Proposals to Extend the Clemency Program
This memorandum presents four questions upon which you should
decide what your policy is to be. In my White House staff capacity
as Chairman of your Presidential Clemency Board, I have been
invited to submit testimony on Monday, April 14, before the
Subcommittee on Courts, Civil Liberties, and Administration of
Justice of the House Judiciary Committee. I need to have decisions
by you on these four questions in order to be able to state Administration
policy on your behalf at that hearing.
I will not raise these questions in my testimony, but I am sure that
they will arise in the Q & A. At that point, I will state whatever
positions you indicate.
I.
Should you support Congressional extension of your
clemency program?
BACKGROUND
Senators Javits and Nelson have introduced legislation whose primary
purpose is to extend indefinitely the clemency program. This is not
unconditional amnesty legislation, but rather an attempt to extend
indefinitely the application period of essentially the program which
you have established.
DISCUSSION
The Congressional supporters of the Javits -Nelson bill (S. 1290) support
your program, are opposed to unconditional amnesty, and believe that
the Administration has failed to communicate your offer of clemency
to most of those eligible for it. Their stated intention is for Congress,
in institutionalizing your program, to share the political responsibility
for it, and to help you in explaining to the American people why a
clemency program is necessary and appropriate.
&
FORD
GERALD
LIBRARY
- 2 -
The principal argument for taking a position in support of S. 1290 is
that it essentially urges Congressional adoption of your program.
Congressional passage of the bill will constitute, in the public's eyes, a
statement that your clemency program has broadly-based national
support, and that it was the right kind of program to create. If there
are to be political costs of an extension of the application deadline,
those costs would thereafter be shared by Congress.
On the other hand, institutionalization of the clemency program may
keep alive an issue which you sought to have closed in a limited period
of time. You set an application deadline originally because you did
want closure on public discussion of the issue. Indefinite extension
of the deadline may prevent that closure, and may prolong the life of
clemency as a political issue.
I do not believe that argument to be dispositive, because I believe that
clemency will remain a political issue irrespective of the position you
take, and that deadline extension will not contribute to the intensity of
discussion of that issue. The Clemency Board has ended its public
information campaign, and there will be no more television advertisements,
barnstorming trips, or press conferences. If applicants continue to come
into your program, they will do SO quietly, without any public visibility.
It has been my consistent experience, confirmed by the experience of
the other Board members, that most of the opposition to your program
is based on ignorance and confusion. Whenever we have explained its
details, whether General Walt to veterans groups, or Father Hesburgh
and I to others, initial hostility has changed at least to tolerance and
very often to explicit support. For example, many service organizations
are surprised to learn that the program has real benefits for VN
veterans. It is my belief, and the Board members concur, that your
program -- properly explained -- can be popular, and widely accepted
as a fair and reasonable solution to the difficult amnesty/clemency issue.
There is a danger, should S. 1290 come out of committee to the Senate
and House floors, that a spate of floor amendments will change a simple
extension which you find relatively unobjectionable into a hodge-podge
which you will feel compelled to veto.
If you support Congressional extension of the deadline, you will provide
a live option for some supporters of unconditional amnesty to coalesce
quietly around, in lieu of public debate on the merits of unconditional
amnesty. If you oppose Congressional extension of the deadline, there
will be substantial debate on the Hill. That debate will probably rise
GERALD FORD LIBRART
- 3 -
in decibel level if supporters of unconditional amnesty decide, seeing
no live option that they can get passed, to focus debate instead on
unconditional amnesty.
On balance, therefore, it seems to me unwise for you to oppose S. 1290,
and there is some political benefit to you in supporting it. I am compelled
against the conclusion that you should support it, however, by the simple
argument that if you favor extension of your program, you can extend it
yourself by executive order, and ask the Hill for an appropriation. If
you come out in favor of S. 1290, its Congressional supporters and those
on their left will make the argument that you are abdicating responsibility
by not extending your own program yourself.
OPTIONS
(a) Support indefinite Congressional extension of your
clemency program (S. 1290)
(b) No position, but you will not veto S. 1290 if Congress
assumes the responsibility of enacting it
(c) No position, and no statement on whether you will
sign S. 1290 if Congress enacts it
(d) Oppose S. 1290
RECOMMENDATION
I recommend option (b) -that you take no position, but intend not to
veto S. 1290 if Congress should enact it.
DECISION (a)
(b)
(c)
(d)
II. If your clemency program is extended, should all parts
of it be folded into the Presidential Clemency Board?
BACKGROUND
S. 1290 provides that the functions currently under the jurisdiction of
the Departments of Justice, Defense, and Transportation be transferred
to the Presidential Clemency Board until the end of 1976, when the
Board goes out of existence under your executive order. At that point,
the whole clemency program is to revert to the Department of Justice.
FORD
GERALD
LIBRARY
- 4 -
DISCUSSION
The Congressional supporters of S. 1290 believe that equity and
consistency in the treatment of similarly situated applicants will be
greatest if all the parts of your clemency program are under the
jurisdiction of the Clemency Board, instead of being split between
the Board and three Departments. Moreover, the Congressional
supporters of the bill argue that the Board projects to potential
applicants an image of your clement intent which is more likely to
attract applicants to the clemency program than the images projected
by the three Departments.
On the other hand, you originally split the jurisdiction of your program
four ways because the Justice Department is uniquely qualified to
engage in plea bargaining negotiation with draft evaders who have
not yet been indicted, and the Defense and Transportation Departments
are uniquely qualified to handle through their normal procedures
military deserters who have not yet been discharged from their service.
The rationale for that original decision remains, although the history of
your clemency program does support the proposition that inequities and
inconsistencies in assignment of length of alternate service have been
present as a result of the program's being split into four jurisdictions.
OPTIONS
(a) Support Congressional folding of all clemency decisions
into the Presidential Clemency Board, removing
jurisdiction from the three Departments
(b) No position
(c) Oppose Congressional folding of all clemency decision-
making into the Presidential Clemency Board
RECOMMENDATION
I recommend option (c) that you remain consistent with your original
decision to split jurisdiction under the clemency program, and oppose
Congressional folding of the whole program into the Board.
DECISION (a)
(b)
(c)
III. Should draft evader and deserter exiles in foreign countries
be permitted to visit this country for thirty days each year?
¿RALO FORD LIBRA,
- 5 -
BACKGROUND
S. 1290 provides that those eligible for your clemency program who
choose not to apply for clemency will be permitted to come home to
visit, under a non-immigrant visa, for thirty days a year, with
immunity from arrest and prosecution during those thirty days.
DISCUSSION
Although most potential applicants under your program have turned
out not to be ideologically motivated, there are some who have not
accepted your clemency offer either for ideological reasons or because
they have stable families and jobs in other countries, and dare not
disrupt those stable situations.
The Javits-Nelson bill assumes that there is a significant number of
such people who will never come back to this country to live, but who
have families here. The bill seeks to permit the reunification of those
troubled families by allowing an annual visiting period.
This issue raises again the specter of the exiles - - the most politically
sensitive group, on which excessive media has been focused.
OPTIONS
(a) Support thirty -day visiting period for exiles
(b) No position
(c) Oppose thirty-day visiting periods for exiles
RECOMMENDATION
Consistently with your taking no position on the legislation as a whole,
I recommend option (b) - -no position on the visiting period question. If
there is to be an act of mercy to exiles and their families, let Congress
assume the responsibility for the immunity from prosecution decision
which is essential to that act of mercy.
DECISION
(a)
(b)
(c)
IV. Assuming extension of your clemency program, should
its scope be broadened to include offenses other than
draft evasion and desertion?
GERALO FORD LIBRARY
BACKGROUND
Several bills have been introduced in the House to provide unconditional
amnesty for a variety of categories of offenses. Most of those bills
- 6 -
cover offenses beyond draft evasion and desertion, such as failure
to obey a lawful order and draft counselling. Some of the bills
provide for amnesty for any offense if it is shown that the offense
was substantially motivated by moral opposition to the Indochina war.
DISCUSSION
In choosing to have your clemency program cover only draft evasion
and desertion offenses, you extended an offer of clemency to two
categories of people most of whose offenses were not related to moral
opposition to the war. The Congressional sponsors of amnesty
legislation admit that extension of coverage to different offenses
would fold into the clemency program a large number of people
who did not act out of conscience. They further argue, however,
that your original clemency program has already done that--and
they are correct.
One possible task is to enumerate a list of offenses (draft counselling,
for example) not included in your clemency program, but committed
by many people for reasons of conscience. An alternative tack,
designed to restrict clemency to those who acted for moral reasons,
is to broaden the jurisdiction of your clemency program to cover any
offense, but to stipulate that clemency may only be offered if a clear
showing is made that the offense was committed as an act of conscience
in opposition to the war. A third tack is to maintain that you have
already covered most of those who have acted in conscience, since
most of them are evaders and deserters, and that the program's
jurisdiction should not be extended to further offenses, however
motivated.
Since it has turned out that most of the evaders and deserters before
the Board have not committed their offenses because of moral opposition
to the war, it seems irrational to me to take that third tack, even though
that is most consistent with your original position.
We can justly argue, based on the experience of the Board and of the
Defense Department, that we have learned since September that most
of those eligible for your clemency program did not act out of moral
opposition to the war, and there are a lost of people who did and whose
offenses are not covered by the program. A change in your position
is justified by your having learned new facts from the experience of
your program.
FORD
GERALD
LIBRARY
- 7 -
OPTIONS
(a) Support broadening of scope of clemency program to
include several new specified categories of offenses
(b) Support broadening of scope of clemency program to
include any offense, provided that a showing is made
in individual cases that the offense was committed as
an act of conscience
(c) No position, but would not veto broadening as in
option (b) above
(d) No position
(e) Oppose broadening to other offenses
RECOMMENDATION
Consistently with your taking no position on clemency extension
as a whole, and consistently with what you have learned about
the clemency problem since your program began, I recommend
option (c) - -no position, but you would not veto broadening to any
offense, provided a showing is made that an individual offense
was committed as an act of conscience.
DECISION
(a)
(b)
(c)
(d)
(e)
BERALD FORD
APR 2 197
PRESIDENTIAL CLEMENCY BOARD
THE WHITE HOUSE
WASHINGTON
April 7, 1975
NOTE FOR PHIL BUCHEN
Attached is a memorandum which I am sending
to the President, requesting that he establish his
policy on four questions which I expect to arise during
the clemency hearing before a House Judiciary
Subcommittee next Monday. The Subcommittee will
treat my statements as Administration policy, and
I want to ensure that I will be equipped to accurately
reflect what the President feels on these issues.
I will be grateful if you will give some attention
to the memorandum today or tomorrow, so that it
will be possible to have a clear statement from the
President on the four issues--whether by his checking
boxes on the memorandum, or in a meeting--by
Friday afternoon.
Charles Hoodll
CHARLES E. GOODELL
Attachment
FORDO : LIBRARY
PRESIDENTIAL CLEMENCY BOARD
THE WHITE HOUSE
WASHINGTON
ACTION
April 10, 1975
MEMORANDUM FOR THE PRESIDENT
FROM:
CHARLES E. GOODELL
SUBJECT:
Your Position on Congressional
Proposals to Extend the Clemency Program
This memorandum presents four questions upon which you should
decide what your policy is to be. In my White House staff capacity
as Chairman of your Presidential Clemency Board, I have been
invited to submit testimony on Monday, April 14, before the
Subcommittee on Courts, Civil Liberties, and Administration of
Justice of the House Judiciary Committee. I need to have decisions
by you on these four questions in order to be able to state Administration
policy on your behalf at that hearing.
I will not raise these questions in my testimony, but I am sure that
they will arise in the Q & A. At that point, I will state whatever
positions you indicate.
I.
Should you support Congressional extension of your
clemency program?
BACKGROUND
Senators Javits and Nelson have introduced legislation whose primary
purpose is to extend indefinitely the clemency program. This is not
unconditional amnesty legislation, but rather an attempt to extend
indefinitely the application period of essentially the program which
you have established.
DISCUSSION
The Congressional supporters of the Javits -Nelson bill (S. 1290) support
your program, are opposed to unconditional amnesty, and believe that
the Administration has failed to communicate your offer of clemency
to most of those eligible for it. Their stated intention is for Congress,
in institutionalizing your program, to share the political responsibility
for it, and to help you in explaining to the American people why a
clemency program is necessary and appropriate.
BERALD FORD LIBRARY
- 2 -
The principal argument for taking a position in support of S. 1290 is
that it essentially urges Congressional adoption of your program.
Congressional passage of the bill will constitute, in the public's eyes, a
statement that your clemency program has broadly-based national
support, and that it was the right kind of program to create. If there
are to be political costs of an extension of the application deadline,
those costs would thereafter be shared by Congress.
On the other hand, institutionalization of the clemency program may
keep alive an issue which you sought to have closed in a limited period
of time. You set an application deadline originally because you did
want closure on public discussion of the issue. Indefinite extension
of the deadline may prevent that closure, and may prolong the life of
clemency as a political issue.
I do not believe that argument to be dispositive, because I believe that
clemency will remain a political issue irrespective of the position you
take, and that deadline extension will not contribute to the intensity of
discussion of that issue. The Clemency Board has ended its public
information campaign, and there will be no more television advertisements,
barnstorming trips, or press conferences. If applicants continue to come
into your program, they will do so quietly, without any public visibility.
It has been my consistent experience, confirmed by the experience of
the other Board members, that most of the opposition to your program
is based on ignorance and confusion. Whenever we have explained its
details, whether General Walt to veterans groups, or Father Hesburgh
and I to others, initial hostility has changed at least to tolerance and
very often to explicit support. For example, many service organizations
are surprised to learn that the program has real benefits for VN
veterans. It is my belief, and the Board members concur, that your
program properly explained -- can be popular, and widely accepted
as a fair and reasonable solution to the difficult amnesty/clemency issue.
There is a danger, should S. 1290 come out of committee to the Senate
and House floors, that a spate of floor amendments will change a simple
extension which you find relatively unobjectionable into a hodge-podge
which you will feel compelled to veto.
If you support Congressional extension of the deadline, you will provide
a live option for some supporters of unconditional amnesty to coalesce
quietly around, in lieu of public debate on the merits of unconditional
amnesty. If you oppose Congressional extension of the deadline, there
will be substantial debate on the Hill. That debate will probably
FORD
ERALO
- 3 -
in decibel level if supporters of unconditional amnesty decide, seeing
no live option that they can get passed, to focus debate instead on
unconditional amnesty.
On balance, therefore, it seems to me unwise for you to oppose S. 1290,
and there is some political benefit to you in supporting it. I am compelled
against the conclusion that you should support it, however, by the simple
argument that if you favor extension of your program, you can extend it
yourself by executive order, and ask the Hill for an appropriation. If
you come out in favor of S. 1290, its Congressional supporters and those
on their left will make the argument that you are abdicating responsibility
by not extending your own program yourself.
OPTIONS
(a) Support indefinite Congressional extension of your
clemency program (S. 1290)
(b) No position, but you will not veto S. 1290 if Congress
assumes the responsibility of enacting it
(c) No position, and no statement on whether you will
sign S. 1290 if Congress enacts it
(d) Oppose S. 1290
RECOMMENDATION
I recommend option (b) -that you take no position, but intend not to
veto S. 1290 if Congress should enact it.
DECISION (a)
(b)
(c)
(d)
II. If your clemency program is extended, should all parts
of it be folded into the Presidential Clemency Board?
BACKGROUND
S. 1290 provides that the functions currently under the jurisdiction of
the Departments of Justice, Defense, and Transportation be transferred
to the Presidential Clemency Board until the end of 1976, when the
Board goes out of existence under your executive order. At that point,
the whole clemency program is to revert to the Department of Justice.
GERALD FOND LIBRARY
- 4 -
DISCUSSION
The Congressional supporters of S. 1290 believe that equity and
consistency in the treatment of similarly situated applicants will be
greatest if all the parts of your clemency program are under the
jurisdiction of the Clemency Board, instead of being split between
the Board and three Departments. Moreover, the Congressional
supporters of the bill argue that the Board projects to potential
applicants an image of your clement intent which is more likely to
attract applicants to the clemency program than the images projected
by the three Departments.
On the other hand, you originally split the jurisdiction of your program
four ways because the Justice Department is uniquely qualified to
engage in plea bargaining negotiation with draft evaders who have
not yet been indicted, and the Defense and Transportation Departments
are uniquely qualified to handle through their normal procedures
military deserters who have not yet been discharged from their service.
The rationale for that original decision remains, although the history of
your clemency program does support the proposition that inequities and
inconsistencies in assignment of length of alternate service have been
present as a result of the program's being split into four jurisdictions.
OPTIONS
(a) Support Congressional folding of all clemency decisions
into the Presidential Clemency Board, removing
jurisdiction from the three Departments
(b) No position
(c) Oppose Congressional folding of all clemency decision-
making into the Presidential Clemency Board
RECOMMENDATION
I recommend option (c) that you remain consistent with your original
decision to split jurisdiction under the clemency program, and oppose
Congressional folding of the whole program into the Board.
DECISION (a)
(b)
(c)
III. Should draft evader and deserter exiles in foreign countries
be permitted to visit this country for thirty days each year?
FORD VIBRAET
- 5 -
BACKGROUND
S. 1290 provides that those eligible for your clemency program who
choose not to apply for clemency will be permitted to come home to
visit, under a non-immigrant visa, for thirty days a year, with
immunity from arrest and prosecution during those thirty days.
DISCUSSION
Although most potential applicants under your program have turned
out not to be ideologically motivated, there are some who have not
accepted your clemency offer either for ideological reasons or because
they have stable families and jobs in other countries, and dare not
disrupt those stable situations.
The Javits -Nelson bill assumes that there is a significant number of
such people who will never come back to this country to live, but who
have families here. The bill seeks to permit the reunification of those
troubled families by allowing an annual visiting period.
This issue raises again the specter of the exiles -- the most politically
sensitive group, on which excessive media has been focused.
OPTIONS
(a) Support thirty -day visiting period for exiles
(b) No position
(c) Oppose thirty-day visiting periods for exiles
RECOMMENDATION
Consistently with your taking no position on the legislation as a whole,
I recommend option (b) - -no position on the visiting period question. If
there is to be an act of mercy to exiles and their families, let Congress
assume the responsibility for the immunity from prosecution decision
which is essential to that act of mercy.
DECISION
(a)
(b)
(c)
IV. Assuming extension of your clemency program, should
its scope be broadened to include offenses other than
draft evasion and desertion?
BACKGROUND
Several bills have been introduced in the House to provide unconditional
amnesty for a variety of categories of offenses. Most of those bills
VORD LIBRAR
- 6 -
cover offenses beyond draft evasion and desertion, such as failure
to obey a lawful order and draft counselling. Some of the bills
provide for amnesty for any offense if it is shown that the offense
was substantially motivated by moral opposition to the Indochina war.
DISCUSSION
In choosing to have your clemency program cover only draft evasion
and desertion offenses, you extended an offer of clemency to two
categories of people most of whose offenses were not related to moral
opposition to the war. The Congressional sponsors of amnesty
legislation admit that extension of coverage to different offenses
would fold into the clemency program a large number of people
who did not act out of conscience. They further argue, however,
that your original clemency program has already done that--and
they are correct.
One possible task is to enumerate a list of offenses (draft counselling,
for example) not included in your clemency program, but committed
by many people for reasons of conscience. An alternative tack,
designed to restrict clemency to those who acted for moral reasons,
is to broaden the jurisdiction of your clemency program to cover any
offense, but to stipulate that clemency may only be offered if a clear
showing is made that the offense was committed as an act of conscience
in opposition to the war. A third tack is to maintain that you have
already covered most of those who have acted in conscience, since
most of them are evaders and deserters, and that the program's
jurisdiction should not be extended to further offenses, however
motivated.
Since it has turned out that most of the evaders and deserters before
the Board have not committed their offenses because of moral opposition
to the war, it seems irrational to me to take that third tack, even though
that is most consistent with your original position.
We can justly argue, based on the experience of the Board and of the
Defense Department, that we have learned since September that most
of those eligible for your clemency program did not act out of moral
opposition to the war, and there are a lost of people who did and whose
offenses are not covered by the program. A change in your position
is justified by your having learned new facts from the experience of
your program.
BERRAB PORD SIBRARY
- 7 -
OPTIONS
(a) Support broadening of scope of clemency program to
include several new specified categories of offenses
(b) Support broadening of scope of clemency program to
include any offense, provided that a showing is made
in individual cases that the offense was committed as
an act of conscience
(c) No position, but would not veto broadening as in
option (b) above
(d) No position
(e) Oppose broadening to other offenses
RECOMMENDATION
Consistently with your taking no position on clemency extension
as a whole, and consistently with what you have learned about
the clemency problem since your program began, I recommend
option (c) - -no position, but you would not veto broadening to any
offense, provided a showing is made that an individual offense
was committed as an act of conscience.
DECISION
(a)
(b)
(c)
(d)
(e)
BERALB 9020 VIBRARY
THE WHITE HOUSE
due 4/10
ACTION MEMORANDUM
WASHINGTON
LOG NO.:
cob
APR 10 1975
Date:-
April 9, 1975
Time:
FOR ACTION: Phil Buchen
CC (for information):
Jack Marsh
Ted Marrs
FROM THE STAFF SECRETARY
DUE: Date:
Thursday, April 10, 1975
Time:
cob
SUBJECT:
Goodell memo (4/10/75) re: Your Position
on Congressional Proposals to Extend the
Clemency Program
ACTION REQUESTED:
X
For Necessary Action
For Your Recommendations
Prepare Agenda and Brief
Draft Renlv
X
For Your Comments
Draft Remarks
REMARKS:
PLEASE ATTACH THIS COPY TO MATERIAL SUBMITTED.
FORD VIBRARY
If you have any questions or if you anticipate a
delay in submitting the required material, please
Jerry H. Jones
telephone the Staff Secretary immediately.
Staff Secretary
PRESIDENTIAL CLEMENCY BOARD
THE WHITE HOUSE
WASHINGTON
April 10, 1975
ACTION
MEMORANDUM FOR THE PRESIDENT
FROM:
CHARLES Charles E, E. GOODELL Hoodell
SUBJECT:
Your Position on Congressional
Proposals to Extend the Clemency Program
This memorandum presents four questions upon which you should
decide what your policy is to be. In my White House staff capacity
as Chairman of your Presidential Clemency Board, I have been
invited to submit testimony on Monday, April 14, before the
Subcommittee on Courts, Civil Liberties, and Administration of
Justice of the House Judiciary Committee. I need to have decisions
by you on these four questions in order to be able to state Administration
policy on your behalf at that hearing.
I will not raise these questions in my testimony, but I am sure that
they will arise in the 2 & A. At that point, I will state whatever
positions you indicate.
I. Should you support Congressional extension of your
clemency program?
BACKGROUND
Senators Javits and Nelson have introduced legislation one of whose
purposes is to extend indefinitely the clemency program. This is not
unconditional amnesty legislation, but rather an attempt to extend
indefinitely the application period of essentially the program which
you have established.
DISCUSSION
The Congressional supporters of the Javits-Nelson bill (S. 1290) support
your program, are opposed to unconditional amnesty, and believe that
the Administration has failed to communicate your offer of clemency
to most of those eligible for it. Their stated intention is for Congress,
in institutionalizing your program, to share the political responsibility
for it, and to help you in explaining to the American people why a
clemency program is necessary and appropriate.
BERRALO FORD LIBRART
- 2 -
The principal argument for taking a position in support of S. 1290 is
that it essentially urges Congressional adoption of your program.
Congressional passage of the bill will constitute, in the public's eyes, a
statement that your clemency program has broadly-based national
support, and that it was the right kind of program to create. If there
are to be political costs of an extension of the application deadline,
those costs would thereafter be shared by Congress.
On the other hand, institutionalization of the clemency program may
keep alive an issue which you sought to have closed in a limited period
of time. You set an application deadline originally because you did
want closure on public discussion of the issue. Indefinite extension
of the deadline may prevent that closure, and may prolong the life of
clemency as a political issue.
I do not believe that argument to be dispositive, because I believe that
clemency will remain a political issue irrespective of the position you
take, and that deadline extension will not contribute to the intensity of
discussion of that issue. The Clemency Board has ended its public
information campaign, and there will be no more television advertisements,
barnstorming trips, or press conferences. If applicants continue to come
into your program, they will do so quietly, without any public visibility.
It has been my consistent experience, confirmed by the experience of
the other Board members, that most of the opposition to your program
is based on ignorance and confusion. Whenever we have explained its
details, whether General Walt to veterans groups, or Father Hesburgh
and I to others, initial hostility has changed at least to tolerance and
very often to explicit support. For example, many service organizations
are surprised to learn that the program has real benefits for VN
veterans. It is my belief, and the Board members concur, that your
program -- properly explained -- can be popular, and widely accepted
as a fair and reasonable solution to the difficult amnesty/clemency issue.
There is a danger, should S. 1290 come out of committee to the Senate
and House floors, that a spate of floor amendments will change a simple
extension which you find relatively unobjectionable into a hodge-podge
which you will feel compelled to veto.
If you support Congressional extension of the deadline, you will provide
a live option for some supporters of unconditional amnesty to coalesce
quietly around, in lieu of public debate on the merits of unconditional
amnesty. If you oppose Congressional extension of the deadline, there
will be substantial debate on the Hill. That debate will probably rise
GERALD FORD VIBRARY
- 3 -
in decibel level if supporters of unconditional amnesty decide, seeing
no live option that they can get passed, to focus debate instead on
unconditional amnesty.
On balance, therefore, it seems to me unwise for you to oppose S. 1290,
and there is some political benefit to you in supporting it. I am compelled
against the conclusion that you should support it, however, by the simple
argument that if you favor extension of your program, you can extend it
yourself by executive order, and ask the Hill for an appropriation. If
you come out in favor of S. 1290, its Congressional supporters and those
on their left will make the argument that you are abdicating responsibility
by not extending your own program yourself.
OPTIONS
(a) Support indefinite Congressional extension of your
clemency program (S. 1290)
(b) No position, but you will not veto S. 1290 if Congress
assumes the responsibility of enacting it
(c) No position. and no statement on whether you will
sign S. 1290 if Congress enacts it
(d) Oppose S. 1290
RECOMMENDATION
I recommend option (b) -that you take no position, but intend not to
veto S. 1290 if Congress should enact it.
DECISION (a)
(b)
(c)
(d)
II. If your clemency program is extended, should all parts
of it be folded into the Presidential Clemency Board?
BACKGROUND
S. 1290 provides that the functions currently under the jurisdiction of
the Departments of Justice, Defense, and Transportation be transferred
to the Presidential Clemency Board until the end of 1976, when the
Board goes out of existence under your executive order. At that point,
the whole clemency program is to revert to the Department of Justice,
LIBRARY BERALD FORD
- 4 -
DISCUSSION
The Congressional supporters of S. 1290 believe that equity and
consistency in the treatment of similarly situated applicants will be
greatest if all the parts of your clemency program are under the
jurisdiction of the Clemency Board, instead of being split between
the Board and three Departments. Moreover, the Congressional
supporters of the bill argue that the Board projects to potential
applicants an image of your clement intent which is more likely to
attract applicants to the clemency program than the images projected
by the three Departments.
On the other hand, you originally split the jurisdiction of your program
four ways because the Justice Department is uniquely qualified to
engage in plea bargaining negotiation with draft evaders who have
not yet been indicted, and the Defense and Transportation Departments
are uniquely qualified to handle through their normal procedures
military deserters who have not yet been discharged from their service.
The rationale for that original decision remains, although the history of
your clemency program does support the proposition that inequities and
inconsistencies in assignment of length of alternate service have been
present as a result of the program's being split into four jurisdictions.
OPTIONS
(a) Support Congressional folding of all clemency decisions
into the Presidential Clemency Board, removing
jurisdiction from the three Departments
(b) No position
(c) Oppose Congressional folding of all clemency decision-
making into the Presidential Clemency Board
RECOMMENDATION
I recommend option (c) that you remain consistent with your original
decision to split jurisdiction under the clemency program, and oppose
Congressional folding of the whole program into the Board.
DECISION (a)
(b)
(c)
III. Should draft evader and deserter exiles in foreign countries
be permitted to visit this country for thirty days each yea
LIBRARY GERALD FORD
- 5 -
BACKGROUND
S. 1290 provides that those eligible for your clemency program who
choose not to apply for clemency will be permitted to come home to
visit, under a non-immigrant visa, for thirty days a year, with
immunity from arrest and prosecution during those thirty days.
DISCUSSION
Although most potential applicants under your program have turned
out not to be ideologically motivated, there are some who have not
accepted your clemency offer either for ideological reasons or because
they have stable families and jobs in other countries, and dare not
disrupt those stable situations.
The Javits-Nelson bill assumes that there is a significant number of
such people who will never come back to this country to live, but who
have families here. The bill seeks to permit the reunification of those
troubled families by allowing an annual visiting period.
This issue raises again the specter of the exiles -- the most politically
sensitive group, on which excessive media has been focused.
OPTIONS
(a) Support thirty -day visiting period for exiles
(b) No position
(c) Oppose thirty-day visiting periods for exiles
RECOMMENDATION
Consistently with your taking no position on the legislation as a whole,
I recommend option (b) - -no position on the visiting period question. If
there is to be an act of mercy to exiles and their families, let Congress
assume the responsibility for the immunity from prosecution decision
which is essential to that act of mercy.
DECISION
(a)
(b)
(c)
IV. Assuming extension of your clemency program, should
its scope be broadened to include offenses other than
draft evasion and desertion?
BACKGROUND
BERAID FORD LIBRARY
Several bills have been introduced in the House to provide unconditional
amnesty for a variety of categories of offenses. Most of those bills
- 6 -
cover offenses beyond draft evasion and desertion, such as failure
to obey a lawful order and draft counselling. Some of the bills
provide for amnesty for any offense if it is shown that the offense
was substantially motivated by moral opposition to the Indochina war.
DISCUSSION
In choosing to have your clemency program cover only draft evasion
and desertion offenses, you extended an offer of clemency to two
categories of people most of whose offenses were not related to moral
opposition to the war. The Congressional sponsors of amnesty
legislation admit that extension of coverage to different offenses
would fold into the clemency program a large number of people
who did not act out of conscience. They further argue, however,
that your original clemency program has already done that--and
they are correct.
One possible task is to enumerate a list of offenses (draft counselling,
for example) not included in your clemency program, but committed
by many people for reasons of conscience. An alternative tack,
designed to restrict clemency to those who acted for moral reasons,
is to broaden the jurisdiction of your clemency program to cover any
offense, but to stipulate that clemency may only be offered if a clear
showing is made that the offense was committed as an act of conscience
in opposition to the war. A third tack is to maintain that you have
already covered most of those who have acted in conscience, since
most of them are evaders and deserters, and that the program's
jurisdiction should not be extended to further offenses, however
motivated.
Since it has turned out that most of the evaders and deserters before
the Board have not committed their offenses because of moral opposition
to the war, it seems irrational to me to take that third tack, even though
that is most consistent with your original position.
We can justly argue, based on the experience of the Board and of the
Defense Department, that we have learned since September that most
of those eligible for your clemency program did not act out of moral
opposition to the war, and there are a lost of people who did and whose
offenses are not covered by the program. A change in your position
is justified by your having learned new facts from the experience of.
your program.
FORD
GERALD
LIBRATY
- 7 -
OPTIONS
(a) Support broadening of scope of clemency program to
include several new specified categories of offenses
(b) Support broadening of scope of clemency program to
include any offense, provided that a showing is made
in individual cases that the offense was committed as
an act of conscience
(c) No position, but would not veto broadening as in
option (b) above
(d) No position
(e) Oppose broadening to other offenses
RECOMMENDATION
Consistently with your taking no position on clemency extension
as a whole, and consistently with what you have learned about
the elemency problem since your program began, I recommend
option (c) - -no position, but you would not veto broadening to any
offense, provided a showing is made that an individual offense
was committed as an act of conscience.
DECISION
(a)
(b)
(c)
(d)
(e)
BERALE R. FORD LIBRARY