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The original documents are located in Box 3, folder "Correspondence (7)" of the Charles E.
Goodell Papers 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. Charles Goodell 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States of America his copyrights in all of his unpublished writings in National Archives collections.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 3 of the Charles E. Goodell Papers at the Gerald R. Ford Presidential Library
Fund
for New Priorities
in America
122 EAST 42ND STREET
NEW YORK, N.Y. 10017
212-697-2282
Holmes Brown
President
Stephen H. Lewis
Treasurer
Stanley S. Weithorn
Secretary
Mary Roberts
September 14, 1976
Membership Secretary
EXECUTIVE COMMITTEE
Earle W. Kazis, Chairman
Jane Baum
The Honorable Charles Goodell
Robert Boehm
1225 19th Street NW
Ernest R. Chanes
Washington, D.C. 20036
RECEIVED SEP 22 1976
Samuel Chavkin
Rachel Ginsburg
Carol Haussamen
David Mandel
Dear Senator Goodell:
Joseph Sabbeth
Julien J. Studley
William Susman
Please find enclosed an edited transcript
Edith Tiger
of the Congressional Conference on the question
BOARD OF DIRECTORS
of amnesty at which you were a panelist.
Maurice S. Paprin, Chairman
Michael Allen
William Anderson
Again, thank you for your participation.
Moe Becker
Lawrence A. Benenson
William Berdy
Cordially yours,
Charles Bound
Sylvia Crane
Arthur Eisen
Norman Eisner
Jack Sangster
Andrew Erish
Executive Director
Michael Feldman
Peter Flack
Albert H. Gaynes
Ruth Gage-Colby
Jerome Ginsberg
Joseph Gould
Scott Greathead
Ira Hechler
Uki Heineman
of LIBRARY GERALD R. FORD
Arthur Jacobs
Roy F. Johns, Jr.
Louis C. Jones
Herbert Kronish
Daniel Kurtz
Albert Landa
Abner Levine
Norman Levine
Robert Mark
Barbara Mogulescu
Ronald J. Mount
Courtlandt Nicoll
Henry Niles
Albert Ornstein
Sam Osman
Bertrand B. Pogrebin
William L. Putnam
Jesse Reed
Wayne Roberts
Martin Rothstein
Eli Sagan
Howard Samuels
Sidney A. Sass
Steven H. Scheuer
Ralph E. Shikes
George A. Smith
Robert Stein
Robin Stein
Roger Swaybill
Stanley Swerdlow
Stephen E. Tise
Samuel Warshauer
Oliver Williams
Jack Sangster
Executive Director
Alice Slater
Administrator
AMNESTY
AN UNRESOLVED NATIONAL QUESTION
i
R.FORD
GERALD
A Congressional Conference February 26,1976
(edited transcript)
Published by
FUND FOR NEW PRIORITIES IN AMERICA
AMNESTY
AN UNRESOLVED NATIONAL QUESTION
FORD & LIBRARY GERALD
A Congressional Conference February 26,1976
(edited transcript)
Published by
FUND FOR NEW PRIORITIES IN AMERICA
iv
Copyright © 1976
Fund for New Priorities in America
122 East Forty-Second Street
New York, N.Y., 10017
All rights reserved
GERALD R. FORD
V
CONTENTS
Introduction
vii
Congressional Amnesty
Conference Sponsors
viii
Congressional Amnesty
Conference Participants
X
The Background of Amnesty
1
The Nature of the Problem
The Legislative Situation
The Magnitude of the Problem
17
The Statistics of Amnesty
The President's Clemency Program
25
Economic and Racial Aspects
65
Pros and Cons of Amnesty
81
The Question of Deterrence
The Moral Aspects
Constitutional Aspects of Amnesty
113
Appendixes:
131
1. The Number of Those Still in
Need of Amnesty, by Reverend
Barry Lynn.
2.
Amnesty Bills Before the Ninety-
Fourth Congress, Summaries by the
&
FORD
Library of Congress.
3. Amnesty Bill Proposed by the
SERALD
National Council for Universal and
Unconditional Amnesty, Summary by
NCUUA.
4.
Statement by Professor Joseph Sax
on the Problem of Amnesty.
5.
The History of Amnesty in America,
Statement by Professor Henry Steel
Commager.
6. Amnesties in U.S. History, List
Prepared by Professor Joseph Sax.
vii
INTRODUCTION
This is an edited transcript of a Congressional
Conference on Amnesty, which was held on February 26, 1976,
in the Dirksen Office Building at the United States Senate,
Washington, D.C.
The purpose of the conference was to explore all
possible approaches to a major unfinished business of the
Vietnam war -- the question of amnesty for those who face
punishment or who have been penalized for actions taken in
connection with the war. It has been estimated that up to
1,000,000 Americans would be affected by a broad amnesty:
those who resisted or evaded the draft, deserters, veterans
with less-than-honorable discharges, and civilians who
received war-related convictions.
What are the historical precedents for amnesty?
The constitutional aspects? Should the President's Clemency
Program be extended? Should alternative service be required
or should an amnesty be unconditional? These and related
questions were examined by a panel representing diverse
opinions. As Senator Philip A. Hart expressed it in a letter
announcing the conference: "Out of the different views
which will be expressed at this Conference may come a better
understanding of the issue which will help us move toward
solutions the public will come to accept." A unique aspect
of the conference was the participation by several veterans
as witnesses.
The proceedings have been edited as minimally as
possible. They have been supplemented by relevant material in
the Appendixes.
The conference would not have been possible without
the cooperation of Senator Hart and the unstinting effort of
his special assistant, Katharine Schirmer. Senator George S.
McGovern presided over the luncheon, arrangements for which were
made through the efforts of his foreign policy assistant, Kay
Casstevens. Mrs. Irma Zigas and Mrs. Louise Ransom of the
National Council for Universal and Unconditional Amnesty were
most helpful in recommending participants, pro and con. Jack
Sangster of the Fund for New Priorities in America devoted a
great deal of time and effort to arranging the conference, aided
by several officers and members of the Fund, especially Earle W.
Kazis, Maurice Paprin, William Susman, Jack Scherer, Rachel
Ginsburg, and David Mandel. The expert copy editing was done
by Mary Heathcote.
Ralph E. Shikes
Editor
GERALD R. FORD
viii
CONGRESSIONAL AMNESTY CONFERENCE SPONSORS
Senate
Philip A. Hart (D-Michigan)
George S. McGovern (D-South Dakota)
Edward W. Brooke (R-Massachusetts)
Dale Bumpers (D-Arkansas)
James S. Abourezk (D-South Dakota)
Birch Bayh (D-Indiana)
Mike Gravel (D-Alaska)
Alan Cranston (D-California)
Mark O. Hatfield (R-Oregon)
Lee Metcalf (D-Montana)
Gaylord Nelson (D-Wisconsin)
John V. Tunney (D-California)
House
Robert W. Kastenmeier (D-Wisconsin)
Bella S. Abzug (D-New York)
:
FORD TO
Gilbert Gude (R-Maryland)
GERALD
Elizabeth Holtzman (D-New York)
Edward Mezvinsky (D-Iowa)
Abner J. Mikva (D-Illinois)
Edward W. Pattison (D-New York)
Lester L. Wolff (D-New York)
Parren J. Mitchell (D-Maryland)
R. FORD
ix
Ronald V. Dellums (D-California)
Paul N. McCloskey, Jr. (R-California)
Henry Helstoski (D-New Jersey)
Don Edwards (D-California)
Robert F. Drinan (D-Massachusetts)
Shirley Chisholm (D-New York)
Claude Pepper (D-Florida)
Benjamin S. Rosenthal (D-New York)
Edward R. Roybal (D-California)
Michael Harrington (D-Massachusetts)
Fortney H. (Pete) Stark (D-California)
Jonathan B. Bingham (D-New York)
George Miller (D-California)
Thomas M. Rees (D-California)
George E. Brown, Jr. (D-California)
Herman Badillo (D-New York)
Louis Stokes (D-Ohio)
Edward I. Koch (D-New York)
Morris K. Udall (D-Arizona)
X
CONGRESSIONAL AMNESTY CONFERENCE PARTICIPANTS
Moderator
Martin Agronsky
WETA-TV (PBS)
Panelists
Lawrence Baskir
Director, Ford Foundation
Project on Amnesty; former
General Counsel, Presidential
Clemency Board.
Ronald H. Brown
Director, Washington Bureau,
National Urban League.
Leslie Dunbar
Executive Director and Secre-
tary, Field Foundation.
Senator Charles Goodell
Former United States Senator
from New York; former Chairman,
Presidential Clemency Board.
Phelps Jones
U.S. Army, Retired; Director,
National Security and Foreign
Affairs, Veterans of Foreign
Wars.
Senator Edward M. Kennedy
United States Senator from
Massachusetts.
Admiral Gene LaRocque
Director, Center for Defense
Information.
Reverend Barry Lynn
United Church of Christ Center
for Social Action; Director,
"To Heal a Nation" program.
Senator George S. McGovern
United States Senator from
South Dakota.
Joseph Papp
Producer, Director, New York
Shakespeare Festival and
Public Theater.
Right Reverend Monsignor
Holy Rosary Church, Pitts-
Charles C. Rice
burgh, Pa.
FORD
GERALD
xi
Muriel Rukeyser
Poet; President, P.E.N.
Professor Joseph Sax
University of Michigan Law
School.
Henry Schwartzchild
American Civil Liberties
Union.
Chesterfield Smith
Attorney; former President,
American Bar Association.
I.F. Stone
Writer.
Robert Vayda
Department of Justice;
formerly in charge of
Selective Service cases for
Criminal Division.
Arnold Vickery
Department of Defense.
Witnesses
Gerry Condon
Director, Amnesty Project,
Clergy and Laymen Concerned;
ex-Green Beret medic; deserter.
Steve Grossman
Editor, AMEX-Canada.
Dr. Richard Harger
Professor of Psychology, Jack-
son State University, Miss.;
former Air Force Intelligence
Officer in Vietnam with over
forty intelligence missions.
Charles Jenkins
Director, Mississippi Feder-
ation of Child Development
Centers; twice indicted,
ultimately acquitted of draft
resistance.
Jeffrey Jones
Member of National Veterans
Fraternity, New Haven, Conn.;
participant in Clemency Program.
Colonel Edison Miller
U.S. Marine Corps, Retired;
twenty-four years in Marine
Corps; commanded Marine Corps
fighter-attack squadron in
Vietnam; POW for five years.
xii
Pat Simon
Gold Star Mother; Director,
Gold Star Parents for Amnesty,
Boston, Mass.
Bennie Thompson
Mayor, Bolton, Miss.; draft
resister on CO grounds.
Jim York
Deserter; participated in and
later resigned from the
Clemency Program.
Jack Sangster
Capitol Hill Co-ordinator;
Executive Director, Fund for
New Priorities in America
BERALD R. FORD
1
THE BACKGROUND OF AMNESTY
The Nature of the Problem
The Legislative Situation
489581 GERALD R. FORD
3
SENATOR HART: Good morning, and welcome all.
It is often difficult to generate much interest in
old business, items which should have been dealt with long
ago but which, for one reason or another, still remain close
to the bottom of our agenda. The amnesty question is such
an issue -- at the bottom of our agenda because, understand-
ably, many people want to forget the whole experience of
Vietnam; and hard to deal with because amnesty is one of
those political issues that doesn't yield to consensus.
Perhaps any act inspired by deep emotion or deeply held
conviction engenders an equally emotional or deeply held
response.
It is because of the hurdles that have long made
amnesty an unpopular subject that I am encouraged by the
response, both in and out of the Congress, which this confer-
ence has received, as I am sure you are.
Our participants today are persons of excellence
and represent the range of views on this question. Their
personal interest and involvement, whatever their positions
on the issue, should help move us toward a better understanding
of the issue and the road to its solution.
To my colleagues in the Congress who have joined
as co-sponsors of this discussion go my very deep thanks.
No politician would suggest that amnesty is a "winners" issue,
QERALD R. FORD
4
and their support in airing the problems of our deserters,
evaders, and servicemen with bad discharges is very welcome.
Our purpose today is twofold: First, once again
to set out the scope and nature of the amnesty problem. This
morning I hope that we can develop the facts. Who are we
talking about when we speak of Vietnam deserters and evaders?
How many are there? What are the problems they face now and
tomorrow?
All too often we forget that potential amnesty
recipients are not just a handful of people, some perhaps
very happily in residence in Canada or Sweden. There are
over 500,000 who are less than full citizens because they
violated a law. What difference do these violations make in
their lives now, anywhere from three to twelve years after the
fact? What has been done and what might be done to end the
war for these men?
And second, our purpose is to explore, through an
understanding of differing viewpoints, how an amnesty might
be fashioned which would be acceptable both to those who
receive it and to the majority in the country which would
grant it. Everyone in this room knows how many thorny
questions there are: veterans' benefits, alternative ser-
vice, military discharges, reaffirmation of allegiance, and
the list goes on.
The question of a case-by-case review of all
potential amnesty recipients to insure that only the true
conscientious objector receives amnesty is equally important.
5
And what of the question, "Do we want to continue to punish
the teenaged soldier who looked at his own problems, looked
at the war, and decided his problems were more important?"
That's not exactly the dictionary definition of "conscientious
objector." It reflects, at least partly, older people's
attitudes toward that war.
So the amnesty question, as we all know, is neither
simple nor subject to an easy answer. I hope our discussions
today will bring together the component issues in a way that
works toward consensus.
The conference is purposely without a formal structure
or agenda so that, rather than reciting each of our prepared
positions, we can exchange and, I hope, identify areas where
we are in agreement. With that accomplished, we can focus
our creative energies toward developing answers to the issues
which divide us.
I want to quote Justice Oliver Wendell Holmes on
the meaning of amnesty.
"A pardon in our day is not a private act of grace
flowing from an individual happening to possess power. It is
part of the constitutional scheme. When granted, it is the
determination of the ultimate authority that the public wel-
fare will be better served by inflicting less than what the
judgment fixed."
To me that is the crux of the question -- whether
the "judgment fixed" must continue to be applied to those who
objected to our presence in Vietnam.
FORD & GERALD LIE
6
It has been suggested that a very brief summary
be made of where we stand legislatively.
What has Congress done? The fact that we are
holding a conference today makes it clear that the answer
is: not much.
On the Senate side, there are two bills that deal
with amnesty. One, the Nelson-Javits bill, would establish
a case-by-case conditional program similar to the President's
Clemency Board. The other, which I joined with six of my
colleagues in introducing, provides an unconditional amnesty
for selective service violations and military absenteeism-
related offenses. *
The first bill has been referred to the Government
Operations Committee; the second to the Judiciary Committee.
House action on amnesty legislation has been more
varied and has progressed further through the legislative pro-
cess because hearings have not been held by either Government
Operations or Judiciary on the Senate side. More than a
dozen bills have been introduced on the House side. Some
are similar to the two Senate bills and others are broader.
Bella Abzug's bill, for example, would grant general
and unconditional amnesty for selective service and
absenteeism-related offenses, as well as other violations of
military and federal civil law.
The House Judiciary Committee on Courts, Civil
Administration of Justice, and Civil Liberties, chaired by
Congressman Kastenmeier, has held hearings both on the
*
Senator Hart's bill and other proposed amnesty bills are
summarized in Appendixes 2 and 3.
7
operations of the President's Clemency Program and on
several of the House-introduced bills. Last fall that sub-
committee reported to the full House Judiciary Committee a
bill that would provide immunity from prosecution and punish-
ment for selective service violators, military absentees,
and those who disobeyed an order which, if obeyed, could
reasonably have led to the death of another person. The
immunity is conditioned upon the applicant's filing of a
certificate stating simply that the act was because of
disapproval of our military involvement in Indochina. No
alternative service is required.
I am told that this legislation has not yet been
scheduled for action by the full House Judiciary Committee.
In summary, amnesty legislation is still stalemated
in the Congress. Some legislation, including a universal
and unconditional amnesty bill for all objectors, military or
civilian, proposed by the National Council for Universal and
Unconditional Amnesty, has not yet been thoroughly examined.
We have asked that today's discussions not focus on the details
of specific amnesty bills, but the issues we will discuss must
at some point be heard and translated through the legislative
process.
SENATOR MC GOVERN: This week the President issued an executive
order to the Secretary of Agriculture to make certain changes
and reforms in the food stamp program. Now certain reforms
are drastically needed --- that is true. But President Ford
FORD
GERALD
8
issued this order just as the Senate Agriculture Committee
was in the last stages of marking up a bill to restructure
and improve the food stamp program and preparing to send it
to the Senate floor. A lot of hard and thorough work had
gone into this bill, yet the President chose to pull the rug
out from under us with this executive order to implement his
own program, completely ignoring our efforts in the
Congress -- the body empowered by the Constitution to legislate.
I mention this now in order to point out what great
power the President has -- how he can make changes, give
directions, and set forth policies just by ordering that it
be done. Right now President Ford has the power to grant an
unconditional amnesty and he could do it as easily as he
ordered a new food stamp program.
Let me say that if things had turned out differently
in 1972 there would have been a presidential order calling
for unconditional amnesty and we would not be having this
very meeting today. There would have been no need for it.
The true spirit of America is to be honest with
ourselves and with our fellow humans. The admission of a
mistake is the condition of its correction. One act above
all else would signal a return to the ideals of the American
Revolution: not a begrudging pardon of the war resisters,
who were right; but their unconditional readmission to their
country, which was wrong. We must assess and change mistaken
policies: we need not belabor any person, least of all the
young men who followed their conscience into exile or prison.
9
SENATOR KENNEDY: I want to commend Senator Hart for taking
the lead in holding this conference. I recall that Phil
was usually the only senator sitting with me at the hearings
of the Administrative Practices and Procedures Subcommittee
on Amnesty in 1972.
I hope that this conference and the current
declarations in Massachusetts and elsewhere of Amnesty Week
will insure that the young men still in exile, those still
underground, and those who continue to live with the mark of
society's disfavor -- whether as a result of a draft conviction
or a less-than-honorable discharge -- because of Vietnam --
will know that they are not forgotten.
A few weeks ago I traveled to Canada on a Health
Subcommittee inquiry. Later I received a letter from Joe
Bodolai, of Toronto. He wrote: "I came to Canada in 1970
from my home in Ohio as an act of conscious opposition to
U.S. involvement in the Vietnam war. Rather than merely 'evade'
the inconvenient aspects of the war's effect on me, I chose to
publicly resist, to break the law. I made no effort to obtain
a legal deferment, which I know full well I could have done.
Instead of claiming that I was unhealthy, unfit, crazy or
otherwise an unsound specimen of American manhood, I chose
to break the law. I am perfectly healthy, perfectly sane.
It is perfectly sane to have opposed the war. I could not
let the record show that only the sickly, squeamish, or the
unfit opposed the war. I was the pride of America.
GERALD FORD
10
"I am the son of Hungarian immigrants. A first-
generation American. All my life I believed in American
history. I did right by it, too. I could have easily carried
out the American dream. I was a good student, a good ball-
player, I 'coulda been a doctor'
"I want to come home a free and proud man. I
don't want to have to ask for forgiveness: I cannot do SO.
I know that I can easily travel in the U.S.A. with false
identification, but I can never do SO. I break only unjust
laws. I only want to come home with my head held high."
He remains in Canada, exiled, isolated, unable to
return home.
Two hundred years ago, we were about to enter our
own war of independence, one that split families, friends,
and communities. Reconciliation was an essential part of the
war's aftermath, when George Washington chose not to pursue
either those who had fought against the Revolution or those
who had deserted the revolutionary ranks. A short time later
he showed the same compassion and mercy when he offered
unconditional amnesty to those who had participated in the
Whisky Rebellion.
Vietnam produced in its wake a bitterness as deep
as either of those two traumatic experiences.
Reconciliation must encompass all of the victims
of Vietnam: the young men who lost their limbs, the young
men who risked their lives, the widows and dependents of the
55,000 Americans killed in Vietnam, the families of the MIAs.
11
For too many veterans, the return to America was
a return to a land that wanted desperately to forget.
Reconciliation must do more. For if we have done
too little for the veteran, we have done even. less for the
young men who have become outcasts from this land. President
Ford deserves some commendation for having taken a first step
in breaking with his predecessor and starting the Clemency
Program. But it was far, far too little.
Ultimately, that process must grow both from an
understanding of the need for national reconciliation and
from a renewal of respect for the individual act of conscience.
I recall when Bishop Flanagan of Worcester testified
on amnesty before my subcommittee and recited the words of
President Kennedy. "War will exist," the President had
written, "until the distant day when the conscientious objector
enjoys the same reputation and prestige as the warrior does
today. "
That respect for individual conscience is part of
our national heritage, and there is no doubt that it is part
of our religious heritage as well. For those young men who
refused to be part of the Vietnam war policy for deep personal
reasons of conscience, no further penalty should be exacted.
They have suffered enough -- whether by serving time in jail or
by being separated from their families, friends, and futures.
Cardinal Cushing urged us to look upon them with
compassion and understanding. He asked, "Could we not do this
in the name of life, and with life, hope
"
SENATOR HART: Now I want to introduce Martin Agronsky, who
GERALD R. FOUD
12
will be our moderator today.
MR. AGRONSKY: What we want to do today is to bring public
attention back to this whole matter of amnesty, which has
been curiously overlooked, neglected. In this country people
feel it has been dealt with and resolved.
The Senator demonstrated, however, that it has not
been adequately dealt with. Certainly it has not in any
sense been resolved.
We have facts. We know that over 56,000 young
Americans lost their lives in Indochina. We know that 300,000
other young Americans were wounded in that war. We know the
problems of psychological adjustment for Vietnam-era veterans
who returned -- even for those who were fortunate enough to
come back physically unscathed. It has often proven very
difficult indeed. Drug habits that were acquired in Vietnam
have led to significant difficulties for a lot of them here
at home. And, unhappily, an inordinate percentage of the
people in this country in jails today are Vietnam veterans.
We know that opposition to the war in Indochina
or to the military regime which sustained it has also left
its lasting wounds. We know that today hundreds of thousands
of Americans are actually fugitives from the law of this
country because of their opposition to that war. Thousands
of young Americans live in exile abroad or underground in
our country for violation of the Selective Service Act or the
Uniform Code of Military Justice. In addition, over 700,000
veterans were discharged from military service in a category
that is described as a less-than-fully-honorable discharge,
13
which leaves them with a permanent social stigma and one
that has a very significant economic effect. It leaves
them virtually unemployable.
Soon after Gerald Ford became President, in 1974,
he instituted the Presidential Clemency Program, which every-
one hoped would open a new channel for resolving the legal
difficulties of some of those for whom amnesty is advocated.
It was a three-part program. It involved the Department of
Defense, the Department of Justice, and a specially created
Clemency Board headed by one of the gentlemen who is on our
panel here today, the distinguished former Senator from New
York, Charles Goodell. The program faced criticism from
many sides.
One of our other panelists today, Phelps Jones
of the Veterans of Foreign Wars, labeled the amnesty program,
to use his words, a "well-intentioned, albeit unwise, effort."
Another of our panelists, Henry Schwartzchild of
the American Civil Liberties Union, called the program "worse
than no amnesty at all."
And that is the spectrum in which it is viewed in
this country. There are facts. Eighty percent of the per-
sons eligible for the program didn't apply for it. Many who
did apply have since dropped out for various reasons that we
want to examine today. We know that, for whatever reasons,
the President's Panel has not resolved the amnesty issue.
That is what our discussion is all about. How
can it be resolved?
&
FORD
RALD
14
Consistently in the amnesty debate, support is
heard for programs that are based on a case-by-case review
or a system of alternative public service. The Clemency Pro-
gram had elements of both. Another thing we want to try to
do today is explore the practical and, should I say, the
philosophical dimensions of implementing such programs.
Amnesty isn't unknown to this country. President
George Washington began this country's amnesty heritage by
pardoning the Whisky Rebellionists, and he stated then that
his intent was "to mingle in the operations of government
every degree of moderation and tenderness which the national
justice, dignity, and safety may permit."
In one Civil War amnesty, President Andrew Johnson
said this: "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."
There was an amnesty following the Spanish-American
War in 1898, but only limited clemency followed involvement
in World War I, World War II, and the Korean war.
One question before us is whether there is a
genuine difference between those wars and our involvement in
the war in Vietnam, a critical difference which perhaps calls
for a different approach and, more important, which many
people believe calls out for a broad amnesty.
What we also hope to do today is focus on some
examples of people who went through the machinery of the
15
Clemency Program and also on some who chose alternative
routes to resolve their legal problems. We want to hear
what happened to them.
Our goal, then, is to clarify the issues, as
Senator Hart has indicated; to examine the alternatives;
and to explore what, if any, remedy is possible. And if we
can accomplish that, we will have accomplished something
extremely difficult.
I wonder if the remedy, which is certainly the
philosophical approach, might not best be found in the words
President Ford himself used on August 9, 1974, when he was
sworn into office. Mr. Ford, you will remember, began his
inaugural speech with these words:
"My fellow Americans: Our long national nightmare
is over. Our Constitution works. Here the people rule. But
there is a higher power, by whatever name we call Him, who
ordains not only righteousness but love, not only justice but
mercy."
I, for one, am perfectly willing to use the
President's words and his philosophy as perhaps the best
approach for any of us to take to the problem we want to deal
with today.
As Senator Hart has indicated, there are diametri-
cally opposed points of view. Since we want to address our-
selves primarily to the facts, and then to see from a
consideration of the facts if we can emerge with some
&
solutions, we can usefully begin with a gentleman who has
GERALD
16
the facts at his fingertips, the Reverend Barry Lynn of
the United Church of Christ.
17
THE MAGNITUDE OF THE PROBLEM
The Statistics of Amnesty
&
FORD
GERALD
19
REV. LYNN: You know, Disraeli said there were three kinds
of lies. He said there were lies, there were damn lies, and
then there were statistics. I believe, however, that the
statistics I want to present today about the magnitude of
the problem of amnesty in 1976 are relatively conservative
figures. Most of them come directly from governmental
sources. And I have my friends from the Department of Justice
and the Department of Defense sitting next to me to clarify
any errors they believe I have made.
I would like to start by saying that there are
over one million people in the United States today, or in exile
abroad, who would benefit from a broad and total amnesty.
On the question of draft resistance, most of the
figures I will present cover the period 1963 to 1973, the
Vietnam era as defined by the Presidential Clemency Program.
But I would like to suggest, as some of the legislative
proposals also indicate, that the genuine Vietnam period is
much broader than that. Actually the period runs from 1961,
when our first military advisers went to Vietnam, through
May of 1975, when our last GIs left Indochina.
There are 4,400 known draft evaders still being
sought by the Department of Justice, still facing a possible
penalty of five years in prison and a $10,000 fine. Through
the work of Senator Hart and Senator Kennedy and others here,
we have the list of those persons. The Department of Justice
GERALD FORD
20
released to counseling organizations around the country
the list of those still in need of some resolution of their
cases and still in legal jeopardy.
However, persons not on that list included many
who had never registered for the draft at all. They had never
become involved in the selective service machinery because
they had never gone to register with their local draft boards.
Former United States Attorney General Ramsey Clark, who now
supports amnesty but paradoxically was the Attorney General
when many of these indictments were first brought down, told
me a few weeks ago that he believes there are one million
Americans who did not register for the draft during the
Vietnam period.
But even using more conservative figures presented
in congressional testimony, there are clearly 100,000 to
300,000 Americans who did not register. And unfortunately
they face possible prosecution and possible jail sentences and
fines.
Also in the draft resistance category are some
8,700 men who have already been convicted of draft law vio-
lations. They have been convicted of refusing induction, of
refusing to go to a physical examination, of refusing alternate
service, or of some other violation of the selective service
laws. Those persons have already been convicted, but they
have a felony record now that, by law, keeps them from many
kinds of jobs, and is certainly an enormous social stigma as
well.
21
There is a final category of draft resisters who
are all living abroad, many of them in Canada. Because of
laws in foreign countries they have had to acquire foreign
citizenship, and thereby were ineligible for the Presidential
Clemency Program and are also now excludable under the
immigration laws of the United States. Although many in
this group are not actually charged with any kind of draft
offense, they are in a category that the Immigration Service
calls persons who avoided or evaded service or training in
the armed forces. They number 7,500 men. They are all
potentially excludable from even visiting the United States,
even though technically they have broken no law.
When we turn to the question of military resistance,
we find figures ranging from 4,000 to 8,000 military
deserters at large. The Defense Department says there are
4,200, but during the clemency period we discovered as
counselors that many of the people who thought they were
deserters -- and in fact were, and had been underground for
years -- were not identified as such by the Department of
Defense. The Department of Defense was considering them as
either still in active service or already discharged.
Next is the enormous number of people from the
Vietnam era even as defined by the Clemency Program --
425,000 veterans with less-than-honorable discharges. Most
of these discharges were given administratively rather than
through a court-martial or trial. Nevertheless, they severely
limit a man's opportunity to get a job. And they severely
SERALD FORD
22
limit the person's ability to get his Veterans Administra-
tion benefits.
If we include the broader period, then we have
the number that Mr. Agronsky mentioned -- over 700,000 people
with less-than-fully-honorable discharges. People could get
those for just about anything, but many of them were related
to absenteeism from Vietnam or refusal to obey orders to be
sent to Vietnam or other kinds of offenses that were clearly
antiwar in nature. *
I would like to mention a few of the classic cases
of people convicted under the Uniform Code of Military Justice
who now have some of these less-than-honorable discharges.
A famous case involved a Lieutenant Howe, a
reservist, who one day, while out of uniform and off base and
off duty, participated in an antiwar demonstration at a local
southern university. When he returned to his base he was
tried and convicted for violating Article 88 of the Uniform
Code of Military Justice, which prohibits the use of con-
temptuous words against the President, the Vice President,
or members of Congress. He now suffers with a bad-conduct
discharge for that so-called offense.
Similarly, many black soldiers in Vietnam realized
that there were certain racial implications to the American
participation in Vietnam and protested very vigorously their
being sent to Vietnam. In one famous case, a black Marine was
*
A summary of the figures cited by Reverend Lynn appears
in Appendix 1.
23
given a ten-year sentence and a dishonorable discharge for
talking in his barracks with his fellow Marines about the
racial implications of the war and why he thought black people
should not fight there.
Dr. Howard Levy, a dermatologist, when asked to
conduct a clinic to train Green Beret medics to go to Viet-
nam, said his medical ethics precluded his training Green
Berets. In his statement refusing that order, he also
announced that he felt black people should not fight in
Vietnam because they would then have to come back here and
fight in the cities for decent treatment. That earned him a
less-than-honorable discharge for violating something called
Article 133, which prohibits an officer from engaging in con-
duct unbecoming an officer and a gentleman.
I could go on, and many of the participants here
could go on, for a long time giving other illustrations of
veterans with less-than-honorable discharges for their
opposition to the war or to the Vietnam-era military. The
number is staggering: 425,000 up to 700,000 Americans.
I suggest that the last category of persons to
consider is civilian war protesters, many of whom still
have felony convictions because of their opposition to the
war.
There is a very sad case involving a fifty-year-
old nurse from the University of Chicago named Jane Kennedy.
She is now in the Alderson, West Virginia, federal penitentiary
for a lengthy term that she began to serve a few months ago,
FORD
GERALD
24
for the destruction of draft records.
And there are literally tens of thousands of
Americans who have been convicted of either federal mis-
demeanors or federal felonies because of actions in direct
opposition to the war in Vietnam, many of them not as
dramatic as the destruction of draft records. Many Americans
were convicted of federal misdemeanors simply because they
did not obtain the proper permits to parade or protest on
federal property.
All these people need an amnesty if their legal
and social stigmas are to be removed. All these people number,
as I said, over one million. And unless all of these people
get some kind of resolution of their cases, I don't think
the question of amnesty will ever go away.
25
THE PRESIDENT'S CLEMENCY PROGRAM
&
FORD
CERALD
27
SENATOR GOODELL: First of all, the President's program
reached roughly 21,000 people, of whom about 16,000 were
eligible for action by the Clemency Board. This leaves
aside the Justice Department and Defense Department programs.
In terms of straight statistics, if you are judging
the success of the program, the Defense Department program
was by far the most successful, and it had the largest per-
centage of participants.
The Defense Department had to deal with estimates
in giving us statistics, and we relied upon its staff to
tell us the number of people who were eligible for our
program who had been in the military in one form or another,
gone AWOL, and been picked up and punished. Their rough
estimate to us the first day after I was appointed was over
200,000 people. In fairness to the Defense Department, it
didn't categorize the individuals on the basis of their
eligibility for the Clemency Program, the standards that
were used by the President.
That figure of over 200,000 was refined down
rather early to about 100,000. So we in the Clemency Board
dealt with roughly 15,000 to 16,000 people out of a total of
eligible military and civilians of about 100,000, a 15 percent
rate.
It is, I think, the unanimous view of those of us
who served on the Presidential Clemency Board that that R.FCR
BERALD
28
centage would have been significantly higher had there not
been so much misunderstanding about the program. Everybody
generally knew that the Clemency Program was there for
those who went to Canada or who went underground, who resisted
the draft. And, understandably, the focus of public debate
in the media was what these fellows in Canada were going to
do. That was a very small percentage of those who were
eligible for clemency.
In the Clemency Board we dealt with those who had
already been punished -- those who had received bad discharges
for AWOL or had been punished for a draft offense. They had
turned themselves in or they had been caught, and they had
been sentenced in federal court for a criminal offense.
I think it should be understood that the Clemency
Board itself was very selective. We had twelve aggravating
factors that we marked individually as we took cases, and
sixteen mitigating factors.
Among the most mitigating factors was a low
educational level, inability to cope with responsibilities.
We had a fairly significant number of individuals who were,
in military terms, in Category 4 of intelligence, below an
Armed Forces Quotient Test score of 30. That was the level
at which, prior to Project 100,000, inaugurated by Secretary
McNamara and President Johnson, individuals were not eligible
to be taken into the service because of mental deficiency.
If we had individuals in that category, absent any
very serious aggravating factors, we normally gave them a
29
pardon outright -- no alternative service required -- on the
simple basis that they never should have been taken into the
service.
Anybody who had evidence of clear conscientious
feeling in opposition to the war also received an outright
pardon, with no requirement of alternative service by the
Presidential Clemency Board.
Of our civilian applicants, 81 percent received
outright pardons with no requirement of alternative service.
For them, that is unconditional amnesty. Those who applied
and who were given clemency by the Clemency Board, with no
requirement of alternative service, received a pardon from
the President of the United States for their offense, whatever
it was, and were not required to do any alternative service.
About one-third of our military cases received out-
right pardons with no requirement of alternative service.
I will add one other point that I think is rather
clear. Great differences of opinion are represented here.
My Executive Director, chief counsel of the Clemency Board,
is sitting over there between Henry Schwartzchild and Phelps
Jones. There is no way you could have a program that would
satisfy both of those gentlemen, from the ACLU and the VFW.
I think the President was very courageous in
addressing this problem. Those of us who dealt with the
program feel that we did a great deal of good for many
individuals. About half of the 15,000 to 16,000 people who
applied to the Clemency Board received outright pardons with
: -RALD R. FORD
30
no requirement of alternative service. They have received,
in our view, substantial help.
In addition, I should point out that people mis-
understand a little bit the nature of those who applied, and
we have to use that as a basis for judging the total profile
of those eligible for clemency. About 7 percent of our
applicants evidenced some kind of conscientious feeling or
opposition to the war in Vietnam, and about 27 percent of our
applicants served in Vietnam. Most of our applicants were
not in the conscientious category. They were individuals who
fouled up, who had many, many difficulties and many depri-
vations and many burdens. As a result, they got into trouble.
And ultimately they heard about the program and applied to
us and received clemency.
Finally, let me say that there was so much mis-
understanding about this program that in the early stages,
the first four months -- we were put into business
September 15, 1975 -- the Clemency Board received
fewer than 1,000 applications. We then started a public
relations campaign.
In January our applications were 5,000, compared
to 1,000 in the first four months. In February they went up
to 6,000, and in March, when the program ended, to 8,000. It
was unfortunate that the program was not extended for a longer
period of time.
31
MR. STONE: After hearing about the President's courage --
with all due respect to Senator Goodell, whom I admire and
respect -- and the quotation of the mellifluous words in
Ford's opening message as President, we ought to paint the
backdrop of this hearing.
The greatest malefactor of the Indochinese war is
a free man and a public celebrity in China, while we are
trying to awaken the country to the miseries of hundreds of
thousands of people of conscience. The background of the
Nixon pardon belongs in this hearing.
At the foundation of the Republic, in the adminis-
tration of George Washington, when Thomas Jefferson was
Secretary of State, a pardon office was established in the
Secretary of State's office to protect against the obvious
possible abuses of the sweeping constitutional grant of power
to pardon that was given to the President. Ever since, in
either the State Department or the Justice Department, there
has been a pardon officer.
A pardon like the Nixon pardon was never granted
before in our history. It short-circuited federal regulations
and ignored them, and gave a pardon for crimes known and un-
known, on a scale absolutely without precedent.
There had to be a little bit of sugar-coating with
talk of an amnesty, a limited amnesty. We know that at the
White House there were discussions of sneaking in a Nixon
pardon by linking it up with a general amnesty for all the
boys. Instead, it was Nixon who got the complete parden, and
BRALD
32
we are still trying to get justice for these several
hundred thousand people.
I don't subscribe to the verdict that Ford was
courageous in his very inadequate amnesty program. I think
he engaged in a dirty deal to give his predecessor and
the man who made him President a pardon, and that pardon is
a scandal, and that scandal is the background of this
desperate, pathetic, belated effort to awaken the country
to justice for those who couldn't swallow the war and didn't
want to engage in its criminality and its dishonor.
MR. AGRONSKY: Mr. Schwartzchild, Senator Goodell contends
that the Clemency Board did a great deal of good in the end
for many individuals. Could you address yourself both to that
evaluation and to the question of whether it did as much as
it could have done and what it left undone, and any faults
in the operation of the Board's machinery?
MR. SCHWARTZCHILD: The war in Vietnam was the longest,
the bitterest, and most divisive war that this country has
ever experienced. That is the context of the question of
amnesty and of the Clemency Program which Senator Goodell is
so pleased about. The Clemency Program was in truth a contri-
bution of the war policies of this and prior administrations.
The program said and tended to confirm in the minds
of the American people that those members of the young genera-
tion who refused to participate in the war, whether for
definably conscientious reasons or not, were the criminals
33
of the Vietnam era. It wanted to assert into the bargain
that these are the criminals, and that, generous, humane, and
lovable as we are, we shall punish them somewhat less than
the law might otherwise have.
Those were the assumptions of the Clemency Program.
It then proceeded to exclude the vast majority of those young
men and women in their teens and twenties who would benefit
from universal, unconditional amnesty.
It proceeded to implement this fragmentary, punitive,
hostile, and niggardly kind of clemency program with an
enormously complicated apparatus involving three agencies
of government which were by their very nature profoundly
hostile to the commitments of the war resisters -- the Depart-
ment of Defense, the Selective Service System, and the
Department of Justice -- and to institute one new agency,
Senator Goodell's Presidential Clemency Board, which was
largely useless.
Statistically speaking, the Defense Department
was, as Senator Goodell said, the most successful because it
did in fact offer unconditional amnesty to military absentees.
So the largest proportion of men eligible for the Clemency
Program who did apply for and receive clemency came under the
jurisdiction of the Defense Department. About half of those
eligible were granted clemency.
The Department of Justice, which had jurisdiction
over accused draft violators, received applications from
fewer than 20 percent of those eligible. And in over 75
FO #
is
GERALD
34
percent of the cases, it imposed upon them arbitrarily,
through the sentencing function of the prosecutors, the
maximum two-year sentence of alternative service.
The Selective Service System's administration of
the alternative service obligations under the Clemency Program
is a shambles. The statistics on that aspect of the program
are an extraordinary testimony to the inadequacy of the
Clemency Program and the inefficiency and uselessness of
the Selective Service System.
The Presidential Clemency Board dealt with approxi-
mately 30 percent of those who were declared eligible for
that part of the Clemency Program. As I said, they were a
tiny minority of those who require universal and unconditional
amnesty. It offered to those 15,000 or so people whom it
processed essentially useless remedies. Over half the
people had never committed an offense but were administratively
discharged from the military service. It offered these men
a presidential pardon which they did not need since they
had never been convicted of an offense. It offered them a
clemency discharge which had no significant advantages over
the less-than-honorable discharge they already had, in
exchange for serving additional punishment imposed by
Senator Goodell and his colleagues beyond the punishment
they had already undergone and fulfilled subsequent to their
sentencing by either civilian or military courts.
It seems to me that this Presidential Clemency
Program was more than hurtful in its intentions and useless
35
in its implementation. Ultimately, and most important, it
taught the wrong lessons to the American people.
The political and military leadership of this
country who were involved in what Mr. Dunbar has very
eloquently called the vast mismanagement of this country's
affairs during the past decade, have not been called to
accountability for their acts or for their violations of
the United States Constitution and of international law.
They continue to sit in high places in our society, in govern-
ment, in private industry, and in other agencies.
We have in our country the flower of the young
generation who refused to participate in the Vietnam war, who in
many instances, in the light of the growing doubts about the
justifiability of that undertaking, let personal priorities
take precedence over the demands of the government that they
expose themselves to killing and being killed in the rice
paddies of South Vietnam. Let us put an end to that tragedy
as well as we can, and an end to the continuing production
of American war victims in the context of a war that we
finally brought to an end. Let us stop making war casualties.
Let us have an amnesty.
The Clemency Program did not accomplish this. As
Izzie Stone correctly said, it was not an act of courage;
it was an act of evasion. We have had enough evasion from
our national leadership. Amnesty would at least be one step
in the direction of restoring confidence in the fundamental
notion that this country can exercise power not only against
GERALD R. FORD
36
the world and against its own citizens, but also in the
interests of justice and equity and human decency.
MR. PHELPS JONES: Betraying my military mind at the outset,
I will set the factual framework, as I have been asked to do,
and I will refrain from any philosophical demarche at this
time.
A couple of points of fact. In regard to Barry
Lynn's very able wrapup of the Howard Levy case, the Supreme
Court did review it and the General Article was upheld by
the Supreme Court.
Another fact. The American involvement in Vietnam
did not end in May 1975. It ended when, due to the good
offices of Senator Kennedy, two young Marines returned to
this country a few days ago.
Looking for areas in which we might agree, it
strikes me -- and it is a point Henry Schwartzchild and I
agreed on several years ago -- that amnesty, like abortion,
is one of those things which the political instinct, so ably
described by our host, doesn't really fit. We are not
talking about tires, we are not talking about acreage
allotments. And perhaps this very admirable and sincere
effort of our people fell short for that very reason.
We all know that conditional amnesty is a contra-
diction in terms. The proposition is either right on its
merits or wrong on its merits. It is truly rather like that
other issue of equal emotionalism -- abortion. I am grateful
37
to Meg Greenfield for her very insightful article in
Newsweek magazine a week or two ago, in which she spoke of
that burning issue as not being resolvable in classical
political terms, that is, splitting the difference so that
everyone winds up at some endurable level of dissatisfaction,
or perhaps a little better than that.
As I promised, I will not launch into a sort of
"let me count the ways" version of why we oppose amnesty at
this time. But I will tell you that our organization went
all out on announced and presumed presidential candidates,
stating our position on amnesty and calling upon them to let
us know their views.
MR. AGRONSKY: There are numbers and there are human beings.
There are a lot of ways to look at the Clemency Program and
at the problem of amnesty. Perhaps the best way is through
the experience of a young American who was charged with deser-
tion and who chose to move through the program. Perhaps
through his experience we can evaluate how the program
worked, how the machinery operated, and what it has done to
individuals.
I would like to call on Jim York.
MR. YORK: I grew up in Winfield, Kansas. I deserted from
the Army in 1969, after being drafted. I served in the Army
for a total of seven weeks. Then, after seeing and talking
with people who had gone to Vietnam and who had come
back -- and who didn't really know why they were there or for
FORD
CRALD
38
what purpose they were there -- I realized I could no
longer participate.
So I decided that the only thing I could really
do and be at peace with myself was to go to Canada. I spent
six years in Ottawa, Ontario.
I don't regret going to Canada. There were good
times and bad times there, but I never really felt like it
was my home, and I didn't become a Canadian citizen. I am an
American, and I always wanted to come back, but I was afraid
to come back.
In October of '74, the Army sent a letter to me
saying that this was my chance to come back to the United
States. Because I wanted to come back, I decided to partici-
pate in the Clemency Program. I returned to the United
States and, as instructed, turned myself over to the military
at Fort Benjamin Harrison, in Indianapolis, Indiana.
MR. AGRONSKY: Who dealt with you there?
MR. YORK: Well, not any one person -- it was very relaxed.
Most of the people were sympathetic, but they didn't tell me
much about the program or what options there were in it. The
only thing I was really told was that I should go through the
program and finish any alternative service that was issued
to me; and if I didn't, I could be arrested and I could go
to jail.
So I accepted the alternative service proposal,
which was that I work for twenty-four months at a nonprofit
39
job, any kind of job for a nonprofit organization, but I
had to find my own job.
Two months later I found a job with the Parks
Department of the City of Lawrence, Kansas. In the meantime
I lived on borrowed money. In the two months that I was
looking for a job, I had to borrow about $300.
MR. AGRONSKY: What happened with the job?
MR. YORK: Well, I worked for about one month and I really
thought that my problem was more or less over with. I had
the job and I was willing to go through with it. And every-
thing was fine, so I thought.
Then the Lawrence town council, led by Mr. Wesantee,
a local insurance agent and the head of the Marine Reservists
in Kansas, discovered I was working for the City of Lawrence
under President Ford's Amnesty Program. And Mr. Wesantee
decided that I was ineligible to work for the City of Lawrence
because I was hired under the President's program. So there
was a town council meeting and they voted to have me removed
from my job.
The City of Lawrence tried to keep me on. They
fought for me for about two weeks, until finally Wesantee
took his case to the Kansas Labor Board. And the Kansas
State Labor Board had me removed from my job. Their argument
was that someone else equally qualified could have had the
job that I had.
FORD
GERALD
40
MR. AGRONSKY: Did you have counsel at this point? Did
you ever have an opportunity to plead your case? Did you
point out that the job had come to you because of your
effort to take advantage of the provisions of the President's
Clemency Program?
MR. YORK: No, sir.
MR. AGRONSKY: Were there any hearings at all?
MR. YORK: No, there weren't. I told the Clemency Program
people in Lawrence what had happened and apparently the
Kansas Labor Board had gotten in touch with them, too.
The clemency people decided I would have to find a job that
no one else wanted. That's what they told me. I had a
difficult time trying to figure out just what kind of a job
no one else would want. I think they did, too, because they
never found a job.
MR. AGRONSKY: You never found a job?
MR. YORK: Nor did they. They tried to help me find a job
and they couldn't. I spent about a month trying to find
a new job, getting more and more in debt and owing money to
my family and friends. So finally I just decided to find a
job on my own, whether it was qualified for the Clemency
Program or whether it wasn't. I mean I didn't have much
choice. I needed the money.
So I went back to my home town of Winfield, and
I found a job that didn't qualify under the program. I went
41
to work for a plant shop.
I had been working in the plant shop for about
three months, I guess, when one day a woman came -- I don't
remember her name, but she was from the Clemency Program.
She had a statement that I was to sign, and the statement
said that I had decided to decline to participate in the
program.
MR. AGRONSKY: She asked you to sign that?
MR. YORK: Well, she asked me if I wanted to. I had the
choice of going on with the program or signing myself out
of it. So I decided to sign. The woman just said, "Of course,
you know that you are liable for arrest now," and I said,
"Yes, I understand that." That's all that was said.
MR. AGRONSKY: When did this happen?
MR. YORK: I signed the statement, I believe it was in
June of '75.
MR. AGRONSKY: And the gist of it was that you understood
that you were liable to arrest if you did not finish the
program and that you withdrew from the program, in effect?
MR. YORK: Yes, I did. They had attempted to find a job
that was suitable for the program. When the woman came to
see me she told me that they had tried to find a job for me
but couldn't. And at that point I didn't really care. All
I wanted was just to have a job and be able to support myself,
whether it qualified under the rules of the program or whether
GERALD
42
it didn't.
MR. AGRONSKY: Were you arrested?
MR. YORK: No, I wasn't, and I have never heard any more
from the Clemency Board.
SENATOR GOODELL: Jim wasnot eligible for the Clemency
Board Program. He went through the program of the Department
of Defense because he was a military fugitive. The woman
he is referring to, I presume, was from the Kansas State
Selective Service System, which was charged with the
responsibility of trying to help him get a job.
I think it should be made clear that almost from
the outset there was never any question that those who went
through the Department of Defense program were not going to
be arrested and were not going to be prosecuted. They came
back and were processed through Fort Benjamin Harrison,
and in about twenty-four hours to three days, they got an
undesirable discharge. And if they wanted to do the alternative
service, they could change the undesirable discharge to a
clemency discharge, which is not really very much help. If
they don't do the alternative service, they just remain with
their undesirable discharge, but they are not subject to
prosecution.
It is different under the Department of Justice
program. The Department of Justice is for the draft evaders
who are still fugitives. They come back as civilians, never
having been in the military, and if they are given a period
43
of alternative service, they must do that alternative service
or be prosecuted.
The Department of Justice has indicated that is
the policy; isn't that correct, Mr. Vayda?
MR. VAYDA: All right, Senator, I accept the description.
MR. AGRONSKY: I want to ask the Senator a couple of
questions, but first I would like to make the observation
that we invited a member of the Selective Service Board to
be present today, and why he declined I don't know.
Senator Goodell, I would like to ask you this:
Here is a case of Jim York, American citizen, who attempted
to go through the process that has been established here. I
don't know that it's significant whether it was the Department
of Defense or the Justice Department or the Clemency Board.
He submitted himself to the process. The process didn't work.
He remains with a less-than-honorable discharge. He will
have to go through life with a stigma, unable to get rid of
that really degrading label. Wherever he goes in the future
he will always be categorized that way. Do you regard this
as a just solution to his problem?
SENATOR GOODELL: I certainly feel great sympathy for Jim.
I would say that you overstate it, however, when you say he
hasn't gotten any benefit from the program. He is now back
in this country; he is no longer a fugitive; he is not subject
to prosecution.
P..
BURALD
44
I think it is very unfortunate that he wasn't
able to hold a job and do some alternative service and change
his discharge to a clemency discharge. I think it is un-
fortunate that he couldn't be offered a better solution.
On the Clemency Board, if he had been convicted
and sentenced in federal court we probably would have given
him an outright pardon with no alternative service at all.
MR. AGRONSKY: Senator, don't you think it's really grotesque
that by submitting himself to the process he should end up in
the position he is in today? Regardless of what the machinery
intended to do, we see what it has accomplished. Don't you
feel that something should be done about Jim York and the
Jim Yorks of this country? Do you think they have been
treated fairly as American citizens?
SENATOR GOODELL: I would not have constructed the Clemency
Program the way it was constructed. We tried to make that
Clemency Program and the Clemency Board work as well as we
possibly could and as clemently as we possibly could. I
would be the first one to say that there are many cases such
as Jim's where I wish he had gotten more benefit. It is
unfortunate that he is not able to do his alternative service
and finish up with the program.
Henry Schwartzchild would be the first one to tell
you -- and I agree with him -- I think you are smarter right
where you are, Jim, because if you work two years in alter-
native service and change the undesirable to a clemency
45
discharge, you haven't accomplished a hell of a lot.
The reason the military got the larger proportion
of participants was this exact example right here before us.
If a guy was in Canada and he wanted to just come and visit
his family, he could come back, in three days be processed
through Fort Benjamin Harrison, get an undesirable discharge,
and cross the border freely. From that time on he was no
longer a fugitive. He got a real benefit.
The unfortunate thing Jim wants to establish here
is that he has an undesirable discharge, and that does live
with him, I regret to say.
MR. AGRONSKY: What can you do about it, Senator? One of
the purposes of this meeting is to see that justice is done
in the case of Jim York and those like Jim York. What can
be done?
MR. VICKERY: I am here as a representative of the Department
of the Army.
There are, I think, at least two separate avenues
of possible relief for people in Mr. York's situation. The
first lies with an approach through the Presidential Clemency
Program to the Selective Service System. The Selective Ser-
vice System was charged with the responsibility for finding
alternative service jobs. If they are unable to find him an
alternative service job, then the State Director of the Selective
Service System is certainly empowered to make that known, and
in effect, because of the inability of the system to come up
FORD
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46
with a job for this man, to provide him with the benefits
of the program; that is, to get his discharge changed from
an undesirable to a clemency discharge.
Second, within the Department of Defense there
are available administrative mechanisms for a review of the
discharge. He can apply to the Army Discharge Review Board,
and thereafter to the Army Board of Corrections of Military
Records, so that there are available remedies to change the
character of the discharge if that is appropriate, both
within and without the Presidential Clemency Program.
MR. AGRONSKY: What would you recommend to Mr. York?
MR. VICKERY: I would recommend to Mr. York that he be in
contact with the State Director of the Selective Service
System in Kansas, that he make known to him the fact that he
tried to operate within the system, that the system failed
to provide him with an alternate service job so that he could
complete his period of alternate service, and then ask for a
certain date from the State Director for the Department of
Defense, indicating that he has discharged his alternate
service obligation.
MR. JEFFREY JONES: I have been trying to upgrade my discharge
for approximately seven years, to no avail. I have an
undesirable discharge for being AWOL. I found that out
through the Clemency Program, after seven years of not knowing
why I was discharged. Not only did I not know why I was dis-
47
charged but I also had no way to go about changing the
discharge. I came to the Clemency Program to try to
receive the veterans' benefits that I feel are rightfully
mine. Of course I haven't received those either. But I do
have a piece of paper from the Clemency Board that I would
like to give back to Mr. Goodell if the opportunity ever
comes up.
There is really not much going on in the way of
upgrading discharges or receiving benefits, but there are a
lot of people hanging around with nothing to do because they
were lucky enough to come under the Clemency Program, and
that's where I am at.
I would like to point out what is happening and
state exactly where I stand -- which is with many other
minority people in this country who are in the same predica-
ment. To get on with solving those problems, I am willing to
do whatever is necessary.
MR. AGRONSKY: Phelps Jones, we have heard from two of those
who attempted to participate in the program. Would you like
to make any observations about their experience?
MR. PHELPS JONES: Number one, of course, in relation to
Mr. York here, obviously, in the little odyssey he undertook,
there is a failure of leadership. Because the very second he
received a dishonorable discharge from the military, the
military could not arrest him for any reason at all. As has
been pointed out by Mr. Goodell, he then could not be arrested
GERALD R. FORD
48
by the civilian authorities either. So whoever the person
was who told him, "You are susceptible to arrest," certainly
did him no service, and I am glad that could be straightened
out here.
On the matter of where does justice lie in his
case, I have to go back to what Senator Hart said at the
beginning. If we accept the fact that the Vietnam war was
unique in its horror, its divisiveness, its brutalizing and
dehumanizing effects, and all the rest -- if that is all the
Law and the Prophets, this young man has a case.
I don't believe it is. He was a wartime deserter.
He is free to move about. Wartime deserters, right through
the Korean war, suffered far, far harsher penalties.
I have no bit of vindictiveness in my heart for
Jim and for many others like him. I hope they can work their
way back in quickly.
Returning to what Mr. Goodell said, while we felt
that the President's effort was a bit redundant, perhaps, and
did bring out a jerry-built, Rube Goldberg kind of contrap-
tion -- we have just heard some testimony to that effect --
nonetheless, there was some positive good done for some
people. All of us should be honest enough to recognize that.
I am not entirely clear about Mr. Jones's situation.
What is your status now? I missed that in your remarks.
MR. JEFFREY JONES: I still have an undesirable. I understand
I got the clemency because I just missed a couple of bed checks.
49
MR. PHELPS JONES: You say you have a clemency discharge?
MR. JEFFREY JONES: Right.
MR. AGRONSKY: Do you have a less-than-desirable discharge
at this point or do you have a clemency discharge?
MR. JEFFREY JONES: I think I have both.
MR. PHELPS JONES: Well, I think you should have one or the
other. Mr. Agronsky or Mr. Goodell could straighten us out
here. But I think the clemency is, for whatever it's worth,
probably a little better.
MR. BASKIR: The intent of the clemency discharge is to
have it a neutral discharge, being neither less-than-honorable
nor honorable. You went through the Clemency Board, is that
correct?
MR. JEFFREY JONES: Yes, I did.
MR. BASKIR: And you have a pardon. Despite what Henry
Schwartzchild says about the value of a pardon, I am not sure
what other legal consequence could be given by the President
other than a pardon. It is the highest form of legal and
constitutional clemency that is open.
SENATOR GOODELL: Were you asked to do any alternative service?
MR. JEFFREY JONES: No, I wasn't.
MR. BASKIR: I would suggest at this point that you go back
&
FORD
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50
to one of the processes that Mr. Vickery mentioned, the
Discharge Review Board, with your pardon. I believe that
when they review your case they should give full force and
effect to the pardon the President gave you for those
violations of military law, which were the AWOLs, and
review your service record without regard to those AWOLs, and
consider the upgrading of your discharge to a general or
honorable with the benefits that come from it, giving, as I
say, full force and effect to the pardon the President has
given for those offenses.
SENATOR GOODELL: We did not have names of individuals in
the applications that the Clemency Board members themselves
reviewed. When an individual applied he was given a desig-
nation. So I don't remember Mr. Jones's case and couldn't
identify it. But I can say that the Clemency Board must have
reviewed your case as a very worthy one. You got the best
disposition that was available from the Clemency Board -- an
outright pardon with no requirement of alternative service.
MR. PHELPS JONES: The VFW and the American Legion say that
in cases like those of Mr. Jones and Mr. York, the law requires
that they be allowed to appear before Boards of Corrections of
Military Records which review discharges. So forget any
philosophical reservations you may have. If you want some
political muscle, stop by the VFW shops; we will help you.
51
MR. AGRONSKY: A significant point to be made here is that
we are already seeing the difficulty of dealing with these
problems on a case-by-case basis. There are so many, and
the machinery to deal with them is so inadequate; they are
so time-consuming, and the personnel to deal with them is so
inadequate numerically. I am not speaking in terms of
capacity of experience.
It has been estimated by the experience that you
have had with your board, Senator Goodell, and that the
Departments of Defense and Justice have had, that if all
the cases extant were to be dealt with in the way these
boards and these agencies have attempted to deal with them
so far, it would take beyond the turn of the century to get
to them, which is a terribly depressing thing.
SENATOR GOODELL: That isn't true, though.
MR. AGRONSKY: The arithmetic would seem to demonstrate it.
SENATOR GOODELL: First of all, I dispute that there are one
million or 500,000 out there who are eligible for this pro-
gram. But even if there were, the processing system that
the Clemency Board and the Defense Department and Justice
Department set up could process them in a relatively short
period of time.
Let me also say that I don't agree with your con-
clusion that Mr. Jones's case, for instance, shows that the
process doesn't work. Mr. Jones would be absolutely no better
GERALD R. FORD
52
off with unconditional amnesty than he is right now. He
got unconditional amnesty.
MR. GROSSMAN: Mr. Jones has no veterans' benefits whatsoever.
SENATOR GOODELL: He wouldn't get that; he would get a
pardon under unconditional amnesty. What has he done to earn
veterans' benefits?
MR. GROSSMAN: He has given his youth and a decade of his
life.
SENATOR GOODELL: That's another argument, but unconditional
amnesty would give him exactly what he has now -- a pardon
from the President of the United States. He got the pardon
outright, and that is just what unconditional amnesty would
give him.
MR. AGRONSKY: Professor Sax, Senator Goodell makes the
point that the number of cases that are unresolved and the
machinery that is available to deal with them is such that
they could be dealt with on a case-by-case basis, and that a
sufficient amount of time could be given to those that are
unresolved. This is your area of expertise, and your
experience with these cases has been primarily in trying to
examine them on a case-by-case basis. Is Senator Goodell
right that the mechanism exists?
MR. SAX: I am not sure I want to respond exactly to what
Senator Goodell said, but I would like to make an observation.
53
Some of the comments by people at the table in front of
us make clear something that we can all agree on: there
is a significant amount of unfinished business in the draft
resistance and clemency amnesty problems arising out of the
war.
When the people here describe a dilemma that
they clearly are in, we hear other people jump in from the
VFW or Justice Department or Defense Department and say,
"Well, there are means to deal with this, at least there
are potentially some means to deal with it." And then they
give us a list of the remedies available.
The problem is that we know that there are
thousands of people out there, people more or less like
Mr. York, who don't know about those means, and they don't
have the kind of associations or counsel that plug them into
such remedies as might be available. That is the practical
problem.
MR. AGRONSKY: Can you propose a solution?
MR. SAX: Sure. There are two solutions.
The first solution is to create a mechanism whereby
we can have some confidence that on a case-by-case basis each
person whose plight deserves attention will get the attention.
That requires the creation of an enormous, expensive and
long-standing bureaucracy. If, for example, you read the
report of the Clemency Board, you will find that during the
time when they were busy with something like 15 or 20 percent
FORD
GERALD
54
of the total cases that might have come before them,
their statistics show that their panels of board members
were dealing with somewhere between 100 and 125 cases a
day. You don't have to do much arithmetic to see that some-
thing like 120 cases even in a twelve-hour day means 10
cases an hour or a case every six minutes.
Even though this is a review process coming up
from the staff, you know that no detailed or careful review
can be given in that kind of time. If we are going to talk
about case-by-case review, what we have to talk about is
whether the Congress is going to be willing to create the
mechanisms and maintain them over a long period of time, to
make sure that we get hold of all of these people and deal
with all their cases in a very careful way.
Now I put it to you that that is just not going
to be done. It is not in the cards. And therefore it seems
to me that the only practical solution is to face up to the
fact that what we have is a lot of people, some people whose
situation is extraordinarily deserving, some people whose
situation is neutral, and some people whose situation is quite
undeserving. I am sure Mr. Jones could bring in some people
whose cases would be very unattractive kinds of cases.
That is the practical problem. And it seems to
me that the only way to deal with it is on a wholesale basis.
And if you are going to deal with it on a wholesale basis,
you have to face up to the fact that some deserving people
are going to get their just deserts and some undeserving
55
people are going to be free riders on that.
You can do one of two things. You can say that
everybody who is out there now has to accept whatever he's
got, and it is just too bad for people like Mr. York and
others. Or you can take the position that we ought to clean
up this mess by taking a general position of amnesty toward
these people, and that we will sweep in with that some
people who probably, taken case by case, would not be
deserving. I think that is the situation.
MR. AGRONSKY: Senator Goodell, I think it would be a
mistake to argue that you are unconcerned about the humanistic
considerations. I think you are. Professor Sax has demon-
strated that because of the way the system is now set up --
and your own experience, I think, also certifies that --
justice cannot be done for all those who are waiting for
justice to be done. And he proposes the wholesale general
amnesty approach as an alternative solution.
That has been proposed by many of those who have
studied this problem and who feel that it is impossible to
deal with it on a case-by-case basis because of its magnitude
and because of the nature of the machinery that would be
needed to deal with it.
I wonder, from your own experience in running the
Board, from observations that have been made here this morn-
ing, and especially from the observations Professor Sax made,
if you could respond to this whole question of why the govern-
ment cannot reconsider its position and why there could not
&
FORD
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56
be a new approach to this thing; why, in effect, the
government has resisted and rejected out of hand this
general amnesty and clemency approach.
SENATOR GOODELL: In the first place I don't think it would
be an impossible burden, or really that expensive, to deal
with future applicants on an individual basis.
When Professor Sax comes to the statistics of
six minutes per case, you have to understand that the Board
members had summaries of these cases in advance and had read
them in advance. They had already gone through and marked
up these cases. A Board attorney had spent several hours on
the case going through it and presented it to the panel or
to the Board.
We had some cases, quite a large number of cases,
that took us thirty seconds to dispose of because everybody
agreed on the face of it that this was a pardon. If it
were somebody, for instance, who had an AFQT score of 8 or
9 or 12 -- which really puts them in a category where you
wonder if they can brush their teeth in the morning -- he
got an outright pardon and nobody debated it. If it was
somebody who was clearly conscientious in his feeling about
the war, he would automatically get a pardon.
So many cases we did very, very quickly where
there was an outright pardon granted. Other cases we spent
several hours debating and had disagreements and had to do
votes and reconsiderations of votes. And we had hearings
if an individual wanted to be heard. I think the only
57
cases in which we denied the opportunity to present a
case to the Board personally were those in which the Board
had already decided to give them a pardon. And we said,
"There is no reason to have them bother to come down here
and have an attorney; we are giving a pardon with no alter-
native service anyway."
MR. AGRONSKY: Senator, would you carry it into the future?
What we are interested in is what will be.
SENATOR GOODELL: I am open to a variety of suggestions.
I think the Nelson-Javits bill has a great deal of merit.
I would oppose an unconditional amnesty across the board
because I think you end up doing more injustice with that
then you do with what we have now.
I think some form of extension of the opportunity
for individuals to apply for clemency should be granted. I
think it probably could be done with a relatively small unit
either independent or in the Justice Department or the
Defense Department. I think that could be accomplished
without a very large bureaucracy.
I think the numbers would be entirely manageable,
and I think the veterans' organizations, such as the VFW and
American Legion and the others, would help these individuals.
Perhaps you could do it through an expansion of
the jurisdiction and standards of your Military Discharge
Review Board. We actually advocated that, and I think it is
a very good idea for somebody who has a clemency discharge
&
FORD
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58
to go before a Military Discharge Review Board and try to
get his clemency discharge upgraded to a general or perhaps
an honorable discharge. In each case, however, it depends
on the degree of service.
I think everybody is aware that I opposed the war
in Vietnam very strongly. But I think an individual has an
obligation to serve his country. Consequently, if he feels
he cannot serve his country in a war such as Vietnam, he
has an obligation to serve alternative service.
What the President did was grant them -- in effect,
all of them, automatically, no reasons given -- the opportun-
ity to do what they would have been required to do had they
been granted a CO status at the time they applied for it,
two years of alternative service. Of those who had
already been punished in one form or another and who came
to the Clemency Board, as I have indicated, a very large
number were not required to do any alternative service at all.
I think that is a fair approach. It is an
approach that I think doesn't satisfy the VFW and the ACLU
and a lot of other people, but overall I think it is a fair
approach. I was proud to be involved in a program where we
could significantly help a large number of people, and I
think the opportunity ought to be extended.
MR. AGRONSKY: I am aware of your position on the Vietnam
war, Senator, and you know that I began by saying you were
concerned about the humanistic problems. But there is also
59
the point that, as the man who conducted the Clemency
Board, you were speaking for and acting for the government.
Many people feel that there were omissions and commissions.
that need correction, and I'm sure the group would be pre-
pared to concede that.
Everybody really wants not so much to lay blame,
though there is enough to go around for all concerned, but to
ask what we can do about it now. And you have raised some
points to which we can address ourselves this afternoon.
Perhaps we can hear from Leslie Dunbar of the
Field Foundation, who inspired the first publicity calling
for amnesty, in 1971. It would be useful if you could tell
us whether you feel that what we have done here so far, in
beginning to expose some aspects of the problem, is helping
us move toward a solution.
MR. DUNBAR: I have been listening to Charles Goodell, as
I have listened to him for a long time now as my Senator and
as a man whom I greatly admired during the tough years of the
war. And I have read -- I haven't read all of it; it is
impossible to read all of it -- the report which he and his
Board put out at the end of their program.
Two things about the report struck me as character-
istic of the kind of governmental attitude that pervades
Washington.
Over and over again in that report we have the
President, Mr. Ford, referred to as the giver of grace. It
is
FORD
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60
is not an exaggeration to put it that way. He gave, he
promised, he indicated, and so forth.
Then alongside that -- which I think is
characteristic of the way we tend too often to look on
American government today, and which is characteristic of
the way we got into the mess in Vietnam in the first place --
there is such a great reliance on what public opinion polls
had to say.
I was impressed by something Senator Hart said
at the beginning, which was that amnesty is not a problem
that addresses itself to a consensus. I doubt if you are
ever going to get a consensus in America as to what should or
should not be done about amnesty. Therefore it is all the
more important that we have leadership in this country,
political leadership, that, without waiting for a consensus,
does what is just.
Mr. Goodell referred to the President's courage,
and he said he himself was proud to have been involved, and
all I can say is we missed a great opportunity to do something
very decent and very fine.
Sometimes opportunities come along to reset the
course of the country, reset the approach. We flubbed the
one on amnesty, and we are not going to recover that
opportunity. We are not going to recover the opportunity
Mr. Ford had in the wake of his unconscionable pardon of
Mr. Nixon, a pardon which could have been made conscionable
only by treating these young men with equal mercy.
61
I have joined with a number of other people
who have written to twenty or so people who were high in
the Kennedy-Johnson-Nixon Administrations. We said in effect,
"You participated in the decision-making of this war, you
committed this country to this war; you have gone on from it
to high positions in American life. Isn't it the least that
you can do to say a word on behalf of amnesty for these
young men who are the victims of your decisions?"
We have got back a few replies. General Westmore-
land and General Taylor say, "No, we did what we thought was
right in Vietnam," and so forth. I can at least respect
those replies. I may say they are just about the only ones
we have had that in any way defend the war. The rest of
them say, "Well, it would be impolitic at this time, for one
reason or another, to extend to these young men the same kind
of amnesty which in effect we have had."
We are still in the position of having flubbed
the great opportunity which was Mr. Ford's. We are still
at the point where the only people punished for the criminality
of this war are young men who had nothing to do with starting
it, carrying it on, or leading it.
MR. AGRONSKY: Mr. Baskir, as former general counsel of
the Clemency Board, and having run the Ford Foundation's
study of this problem, do you feel you can usefully propose
some new approach to deal in some constructive way with the
problems raised in this discussion?
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FORD
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62
MR. BASKIR: I don't think you can hear the eloquent
statements of various people at the podium and the individual
cases of persons who have gone through the difficulties
caused by the war and not be moved by this difficulty. I
think very powerful emotional and moral arguments can be
made for unconditional amnesty.
I do think, however, that in listening to the
conversations and the discussions here we might mislead
ourselves as to what the general feeling of people who are
in a position to act may be. We have some very distinguished
sponsors of this conference. Not even all of them, I think,
are in favor of unconditional and universal amnesty.
What we see in the Congress and in the White House is that,
however powerful the emotional and moral arguments, the
practical arguments, are for unconditional and universal
amnesty, those persons in a position to inaugurate that,
I guess I can say, are not yet persuaded.
I guess it is also true that as we get further
and further away from the immediate situation of the agony
of Vietnam, this issue recedes more and more from public
consciousness. I think that approaches to the problem
which require a public confession of guilt, not only of
the individuals who would be the subject of amnesty if
this existed for them, but in fact confessions of guilt
by government -- for the majority of the people I think that
is not a fruitful approach.
63
I would like to see an approach which focuses
on individuals and which, in effect, tries to do something
with the personal circumstances of individuals; which does
not require this society or the government to say, "We were
morally guilty; you were morally right." Not that I don't
think that is necessary, perhaps, or advisable, but I
just don't think it is actually ever going to happen.
There are some other illustrations I think we can
take and focus on this problem. One was the Australian
experience. We have talked a lot about what our experience
in the past two hundred years has been. Australia had a
very interesting experience in that the war in Australia,
I guess, was about as divisive as it was in the United
States.
One candidate for office, Gough Whitlam of the
Australian Labor Party, ran on a platform of unconditional
amnesty, and when he came in he inaugurated a program for
everybody who was in the service, and didn't want to stay
in the service, to leave without any consequences.
I don't know what the consequences have been for
Australia's defense, but I think it is probably not proper
to say a program of unconditional amnesty would necessarily
inhibit us in the future in fighting a constitutional war.
In fact, it might help us, in a sense.
Another thing that I think we ought to focus on
is the way existing cases are being handled in the courts.
We heard about one case the other day of an individual who
FORD
GERALD
64
was tried and convicted and sentenced to one day's pro-
bation, I guess the minimum sentence he could get. After
the conclusion of his service of one day's probation,
which I gather he served by having lunch with his probation
officer, his conviction was expunged.
Let me tie these things together by saying that
I don't think that the people in Congress as a whole are now
prepared to have an unconditional amnesty which involves
moral condemnation of the war. I think that is not practical.
I think we can focus on the Clemency Program that happened
in the past and some of the weaknesses of it and perhaps
try to see if we can't have a program which has some practi-
cal appeal in the Congress and some realistic chance of being
enacted.
One thing I think that program demonstrated was
that it was too short. It was open only for four and a half
months and six and a half months. It laid a great premium
on learning about it. It was terribly complex. The benefits
were meager and the price was high.
I would like to see us focus on trying to devise
an approach to this problem which would give the greatest
kind of benefits that would be practical in terms of being
achievable.
65
ECONOMIC AND RACIAL ASPECTS
FORD is LTH
67
MR. AGRONSKY: One aspect that we touched on this morning
but did not examine is a very important part of the whole
problem of amnesty. That is the economic and racial aspect
of the problem. Economic and racial factors both derive
from the same cause.
Statistics demonstrate that in the end only 10
percent of those eligible for the draft went to Vietnam,
and that 10 percent was drawn mainly from the lower ranks of
our economy in terms of income and economic position, and
disproportionately drawn from the blacks in our population.
Mr. Stone will address himself to that.
MR. STONE: I don't want to use these figures on behalf of
racial demagoguery. I want to put them in the broadest
possible context, in which people from the Defense Department
and people like me can find some agreement.
The military men, of course, are concerned with will
and discipline, which are necessary components in war. I
think that they will not doubt, and none of us will doubt,
that if this country were really attacked or in desperate
straits, there is no doubt about the courage, the will, the
patriotism of the American people of all classes and all
ethnic backgrounds. But when a war is waged 9,000 or more
miles away that nobody understands and nobody can explain,
and that grows more and more obviously irrational and cruel
and unworthy, you have disaffection. Because Americans are
FORD
GERALD
68
a people accustomed to freely expressing themselves and
thinking about their lot, it's natural that we should have
a large measure of disaffection.
This was exacerbated by the class and racial
aspects of the Vietnam war. It was a war from which the
rich and upper class benefited enormously, because President
Johnson, instead of financing the war by taxation on war
profits and high incomes, chose the path of inflation,
which caused suffering disproportionately for the unorganized,
the poor, the blacks, and the elderly. The inflation not
only took a burden off the backs of those best able to pay
but fueled one of the great stock-market binges of modern
history. The great conglomerate bubble was a sample of it,
and hundreds of millions were made on the war boom and
inflation boom. The weakness of the dollar and weakness of
the economy ever since has been part of the price we paid for
the binge.
While the wealthy were making out on the war, it
was the poor, and especially the black poor, that bore a
disproportionate part of the burden. Although only about
1.5 percent of the members of draft boards were blacks, and
only about 18 percent of eligible whites were drafted, 30
percent of eligible blacks were drafted. To the honor of
the blacks, it can be said that they provided a very high
proportion of volunteers for service, but they came out
holding the dirty end of the stick on court-martials and
bad service records and dishonorable discharges, which often
69
reflected their resentment against racial slurs and
discrimination in the service itself.
In a society like ours, one of composite peoples,
it is very important to develop social justice. Much more
fundamental than the defense budget and all the hardware
is to develop a sense of unity, a sense of fraternity, and
a sense of justice in a society as diverse as ours. That
is what makes it important to focus on the fact that the
poorer classes and the blacks paid disproportionately for
a war that was the source of great profit to the upper class.
And now they are paying disproportionately again.
People talk about getting a lawyer and finding the way. Who
knows how to find his way around the red tape of the govern-
ment? Educated people who have been to college, sophisticated
people, experienced in business, would know what they could
do. They hire a lawyer. They can afford to hire a lawyer,
and they pass it off as a business expense, despite their
learning and education. How can we expect people who have
no experience at all in government, can't afford a lawyer --
how can we put the burden on them of finding their way
around a terrible network of red tape?
After every war we have sought to bind up the
wounds abroad and at home with reconciliation. Look at all
we did for the Germans and the Japanese after the war. Look
at the national reconciliation that took place after the
Civil War, which was an insurrection and a very terrible war,
an important war, a crucial war, not a distant, dirty little
colonial war.
GREATO FORD
70
It is important for the future, it is important
for the sense of social justice and racial justice, to
have an unconditional amnesty. Otherwise, the burden on
the uneducated, ill-informed poor and helpless, who can't
even afford to take a day off from work to go down and hassle
with bureaucrats, will just rankle. That rankling, that
sense of injustice, is a very bad thing for the future of
our country and for the Defense Department.
I want to say one last word. I want to use a
dirty word. It is not a four-letter word; it is an eleven-
letter word, and it is "imperialism."
This whole morass about amnesty, CIA, all this
other business, goes back to the fact that for over a
century we have regarded it as a principal function of the
War Department -- as it used to be called honestly, instead
of the Defense Department -- to protect American lives and
property abroad. There was a time when people spoke
frankly about these things.
There was a time when two ex-Presidents, Grover
Cleveland and Benjamin Harrison, organized an anti-imperialist
league and fought against annexation of the Philippines, and
said they thought it would be a danger to the Republic to get
us mixed up in imperialism in Asia.
There was a time when one of the greatest U.S.
Marine Corps generals we've had, Smedley D. Butler, said in
1932, in his memoirs, that he was tired of being an errand
boy for Wall Street, which wanted him to go down to Latin
71
America and kick natives around to collect the debts of
American banks.
Our country is a great country. Vietnam was a
disgrace. We never would have gotten out of it, and we never
would have kept out of Angola, if not for these kids. The
Congress would never have had the will and guts and resolu-
tion to say no to Angola if it hadn't been for Vietnam.
Instead of looking upon them as deserters and
miscreants and semicriminals, we ought to look at these war
resisters as people who have written an honorable role in
American history. The dishonorable role was written by the
Nixons and Johnsons and Kennedys and other machismo people
who felt we had to get in there.
To show the whole world that American had a
conscience and real freedom of speech and real dissent,
people demonstrated. These are the boys we are talking
about. And we owe them a debt. It is a debt of honor and
gratitude.
MR. AGRONSKY: One of the problems Mr. Stone raises is
the whole problem of how, if you have a very low economic
status in this country, you can protect yourself in the legal
process. How can you afford to do so? And what does it mean
when you haven't the economic means to do so?
I think one of our panelists is in a very useful
and very well-informed position to deal with that problem,
with the whole problem of the legal matters involved in
GERALD R. FORD
73
application met the requirements for a CO status based
upon religious convictions. There were things that the
board would not consider that should have been considered
in my application.
One of the major determinants in my not getting
CO classification was that I was working for the Student
Nonviolent Coordinating Committee, a national civil rights
organization. Because of this, they didn't consider my
claim, even when I made a personal appearance before them.
They were very hostile toward me. The chairman of that
particular local board was a member of the Ku Klux Klan, and
it was just impossible for me to get a fair decision there.
I was fortunate to have met an attorney who
helped me prepare my case and worked with me until the end
to do that. But for many Americans, and especially black
Americans, that wasn't the case.
I want to talk about something I heard Mr. Goodell
refer to, and that was every individual's responsibility to
serve his country through the Selective Service System.
First of all, I have to say to Mr. Goodell that
evidently it is not the responsibility of every citizen to
serve because, as Mr. Stone pointed out, minorities had to
serve disproportionately in the Vietnam war. I can remember
cases in Mississippi when a phone call to one of the senators
or one of the representatives got some plantation owner's son
out of the draft, whereas other people didn't have the
opportunity to do that.
is
FORD
GERALD
74
That was one of the problems we faced. It never
was an equitable kind of situation. It depended on what
the local draft board thought about you. If you were in
any kind of activity they wouldn't even consider what your
circumstances were. And there were other powers-that-be
that determined who wouldn't have to go into the Army and
who would have to go, so it never has been an equitable
situation.
Now, when we talk about what is to happen to the
persons of good conscience who've got criminal records, or
people who have served time, or people who had to leave the
country because they were conscientiously opposed to the war,
what is just for them?
If we don't look at it in a vacuum but look at it
as a total picture of what was happening in this country at
the time, what were the considerations of many of those
Americans who had to undergo these ordeals -- if we look at
the total picture, we will find there is nothing that will
right those injustices except complete and unconditional
amnesty.
Having gone through that situation, and having won
my case, but understanding the difficulties that any individual
who said, "No, I cannot participate in this war, or I cannot
participate in wars, period" -- the kinds of ordeals they
had to go through, from their families being harassed by
the FBI to all kinds of other problems they encountered --
I know that is the only equitable solution to the problem.
75
The draft itself was inequitable as an institution.
It reflects the very worst of society because it says those
who have are not required to participate, but those who do
not meet the situation, whose families are not influential --
they are the ones who are victims and have to participate.
And if they say, "No, I will not participate," they have to
face the brunt of the burden. I think that is totally
inequitable, and the only way we are going to deal with
that is to have complete and unconditional amnesty.
MR. AGRONSKY: Bennie Thompson, of Bolton, Mississippi,
was involved and saw at very close hand the whole operation
of the selective service process.
MR. THOMPSON: I first encountered the Selective Service
System in 1969, when I was elected to the City Council in
my home town and shortly after that was reclassified by the
Selective Service System. I applied for CO status, and
the chairman of the board told me that he would not reclassify
me as a conscientious objector. I was reclassified by my
draft board in 1969.
The chairman of the draft board at the time,
who incidentally is the mayor of the town adjacent to the
town I am mayor of now, told me that he would not reclassify
me because I had caused trouble in the community ever since
I had finished school.
Well, in the process of trying to get my CO
classification, I was drafted four times in two months.
R.
FORD
GERALD
76
Each time I was drafted I had an appeal pending.
I found that certain records had been entered in
my Selective Service files. There were letters written by
individuals in the community, including the former mayor,
that said I had caused nothing but trouble since returning
from college. This, I think, was clearly illegal. You
are supposed to be notified of all the entries in your
record.
The process continued until I lost my teaching
job. I had a whole lot of things happen to me. But fortu-
nately, with the help of some legal friends, I did not go
into the Army. I have since lost two other jobs because of
my stand.
First, it is very difficult for a black person in
Mississippi. At the time there was not one black person on
the draft board in Mississippi. They subsequently appointed
one simply because I had raised all kinds of issues around
the problems surrounding my being drafted.
A major problem is that in my community -- and I
think Mr. Jenkins said it as well as I could -- many people
who had sons eligible for the draft were not drafted. I
have friends who died in Vietnam, and that hurt, because I
know that had the draft been just and equitable, they might
not have gone.
The other thing is that I have friends who are
back from Vietnam now who are drug addicts living in little
towns. They have not had the opportunity for employment.
77
They tell me constantly that had they had the nerve to
say no, they would not have gone, but they were under the
impression that they were fighting for their country and
their country would do something for them when they returned.
This has been somewhat of a lack.
The draft, by and large, so far as black people
in Mississippi were concerned, was just a tool of the
society to suppress activist blacks in the community, and
that is what it did until it was abolished.
MR. AGRONSKY: There is another pragmatic aspect of the
whole question of categories of discharges. I would like to
call on Ronald Brown, who is the Washington director of the
National Urban League, to carry these observations on from
his own experience and studies.
The Sieberling study dealt with questionnaires
to 100 of the largest U.S. corporations, in an effort to
indicate whether there is discrimination against people with
anything but an honorable discharge who apply for employment
with them.
Of those who responded to the questionnaires, 73
percent concede that they discriminate against those who
hold dishonorable discharges; 62 percent concede they discrim-
inate against those with a bad conduct discharge; 61 percent
discriminate against whose who have undesirable discharges;
41 percent discriminate in employment against those with
general discharges.
GERALD R. FORD
78
An Army study called the Major Jones study
surveyed employers, educators, and professional licensing
authorities. Of those queried, 77 percent said they were
influenced by dishonorable discharges and 34 percent said
they automatically rejected those who applied for employment
who had dishonorable discharges; 75 percent said they were
influenced by and 27 percent automatically rejected bad con-
duct discharges; 69 percent said they were influenced by and
20 percent automatically rejected those with undesirable
discharges; 51 percent conceded they were influenced by and
8 percent said they automatically rejected those with general
discharges.
The National Urban League has made a particular
study of this particular aspect of the problem, especially
as it affects Vietnam war veterans, and those who resisted
the draft and were rejected when they tried to get conscientious
objector status.
MR. BROWN: Those data are indeed alarming. What they
should indicate to us all is that we are perpetuating in-
justices in a way that makes the punishment far outweigh the
conduct which the penalty was intended to stop.
It seems to me that what we have done is create
an absolutely intolerable situation. There are some 350,000
Vietnam era veterans who have received less-than-honorable
discharges. The data that Mr. Agronsky has just referred
to indicate clearly to us the kind of penalty that they must
79
continue to pay throughout life for a discharge that in
many, many cases was unjustified in the first place.
All those who have examined the military discharge
system, including blue-ribbon panels and everyone else,
have indicated clearly that there was gross discrimination
within that system and that many of these discharges were
not fairly given.
Further, what we have done is create a situation
that has some tremendously discriminatory aspects. That is,
we have found that black people, for example, are dispro-
portionately drafted into the military. They are then dis-
proportionately assigned to either front-line duty or dead-
end jobs. They are then disproportionately tossed out with
less-than-honorable discharges which then trail them through-
out their lives and make it very difficult for them to compete
economically in our society.
Some of the relevant statistics are really
frightening. During the Vietnam era, blacks, for example,
were twice as likely as whites to receive less-than-honorable
discharges. In the year 1972 in the Marine Corps, 22 percent
of all blacks who were discharged from the Marine Corps --
that is, almost a quarter -- were discharged with less-than-
honorable discharges. It seems to me that these data are a
prima facie case of discrimination in the military discharge
system.
The National Urban League has supported uncon-
ditional amnesty for quite some time, and in that discussion
CERALD R. ROAD
80
we must not ignore the problem of individuals who
are faced with a lifelong period of less-than-honorable
discharge.
It seems to me that the data are clear. It seems
to me that the kind of provisions the Defense Department
has made to upgrade those discharges are totally inadequate.
As you recall, initially what was required was
that individuals who received those less-than-honorable
discharges come to Washington and appear before the Discharge
Review Board; then they might have a chance of getting their
discharge upgraded. Just that process makes it clear that,
again, we have a self-fulfilling prophecy: we are telling
poor, black individuals, without any counsel, living all
over the country, that first of all they have got to come
up with the money to get to Washington. Then if they do
not have a lawyer, their chance of having their discharge
upgraded is going to be considerably lower than if they did.
The only way to deal with this problem is not by
any kind of piecemeal approach, not by a case-by-case
investigation, which I think the data prove cannot work,
but only through unconditional amnesty, which includes con-
sideration not only for those who did not serve but for those
who did and, for reasons many of which were beyond their
control, received less-than-honorable discharges.
81
PROS AND CONS OF AMNESTY
The Question of Deterrence
The Moral Aspects
R. FORD
GERALD
83
MR. PHELPS JONES: To begin with, I agree with about half
of what Izzie Stone said. It was a poor boy's war; I won't
say it was a poor boy's fight. I won't stop there and say it
was a rich man's war, because my imperfect understanding
of our economic mechanism was that toward the end the stock
market soared every time Dr. Kissinger sat down with
Le Duc Tho.
Looking at the thing, I will be as practical and
honest as I can. You folks who are proponents of amnesty
have going for you, number one, the passage of time; number
two, the span of attention of our total electorate and the
move to let's put Vietnam behind us.
I would like to make a couple of points. There
is no historical precedent for what is being recommended
today, not in this century and not in any century. The
Civil War was a war which, among other things, tested
citizens on their allegiance to the state or federal govern-
ment. And whatever problems we may have with our southern
friends, I don't think anybody ever argued that they were
too slow in getting to their version of combat.
And Izzie Stone's point that we would all rally
round if we were attacked. What we are talking about now
is not Pearl Harbor but strategic nuclear weapons. So
clearly, I think, it would be in our interest to use what
power we have left to avoid those sorts of confrontations.
FORDO & GERALD use
84
And if, God forbid, we ever have to fight again,
I hope we don't have to find that we are in the kind of last-
minute situation it would take to rally people round.
I would agree with speakers who have mentioned
the class aspect of the war in Vietnam. I would recommend
to you a very fine article written by a Harvard graduate,
class of 1970, president of the Harvard Crimson, a Rhodes
scholar, violent war protester, and all the rest. In a
great act of self-recognition, as I judge it, he wrote:
"What was our real motivation?" And he recalled going down
from Harvard and MIT, where four out of five were good enough
to beat the doctor, I believe, to the Boston Navy Yard,
where the reverse was true of what he called Chelsea --
Chelsea being what he termed in his article the white proles.
Four out of those five went.
He said, "Were we really right? Have we paid
enough attention to the awful suffering done by those people,
obviously black and white? Have we really cared about the
Vietnam veteran?"
I know it is ritualistic in talking with groups
arguing for amnesty to say that there is all this pressure
of concern about the Vietnam veteran. In fact, the Veterans
Administration budget for this year is down $1.4 billion
from last. I know the figure.
Recently, here in Washington, a jury found that
mass punishment had been improperly applied, and the ACLU
quite properly got reversals of past judgments against
85
individuals who were judged to be poorly treated. If
mass punishment is wrong, on the one hand, I would suggest
that mass forgetfulness -- an act of torpor, really, not
policy -- would be equally wrong on the other.
Among other things, the sorts of amnesty I
suspect are being advanced would equal a mass burial of
due process of the law. And if there is anything that has
been going for us, in my judgment, for the last three years,
it has been the working of the United States judgment.
Compassion, of course, but the class aspect
read by Henry Schwartzchild, the "flower of our youth" argu-
ment, is one thing, my friends and colleagues, that I think
will make the sort of amnesty you are proposing very difficult
indeed of passage.
I won't run through the casualty figures; they
are long gone. I would suggest, however, that I haven't
yet heard here a rationale that would prohibit what I call
full customer choice of war.
The point has been raised about conscience. Con-
science is a magnificent value. It is not the supreme value.
People are blowing one another up in Northern Ireland today
over an absolutely correct view of the hereafter.
MacArthur conscientiously thought he was right;
Truman conscientiously thought he was wrong. And MacArthur
got conscientiously fired.
Some of the worst acts of the Ku Klux Klan have
been done under some kind of conscience, however aberrant.
&
FORD
SURALD
86
I think I would agree with the speakers who
have indicated that the Selective Service System, and it
varied over time, did underscore this class bias. There
are reasons for it. It was a patchwork, crazy-quilt thing.
Never again, let us hope, will we see anything like that.
MR. AGRONSKY: I wonder if Joseph Sax could address himself
to one of the fundamental points you made, in terms of the
impact that amnesty might have on the willingness of citizen
soldiers to fight as volunteers in other wars this country
might have.
MR. PHELPS JONES: Would the people here be willing to fight
to keep an American presence in the Panama Canal Zone? I
would tend to doubt it. Would the people here be anxious
to fight if there were some kind of large-scale intrusion
into Western Europe? Once again there would be serious doubts
raised.
So the precedent, as I understand law -- once
again, I am a layman here -- would be a mass precedent which
would excuse all sorts of behavior in future events whose
shape none of us can see. In whatever war, over whatever
ideology, there would be some groups in this country that
would strongly object to it.
MR. AGRONSKY: Mr. Jones, we have often heard the wisecrack:
What would happen if they gave a war and nobody came? That
might be a precedent that people might like to adopt all
over the world.
87
MR. PHELPS JONES: Yes, there is a universal movement
for that.
MR. AGRONSKY: An unjust war -- I suppose that is a policy
issue sort of observation. This is a very real and pragmatic
and dangerous world. I understand your concern. I am
tempted to try to address it myself, but I am moderator, and
I will call on Mr. Sax.
MR. SAX: I don't know whether I can speak for you or any-
one else, but I would like to make two comments on the things
that were just said.
First, as to the question of due process. It
seems to me that we ought at least to have our legal facts
straight. The notion that it would be a violation of due
process to grant a mass amnesty without considering individual
cases really is a distortion of the idea. of due process.
Maybe I can explain it best by referring to an
experience I had in representing a defendant in a criminal case
shortly after I got out of law school. We asked for a brief
delay in going to trial so that we could get an expert to
testify on one of the questions involved in the case. And
the judge denied our motion, saying, "Your client is entitled
under the Constitution to a speedy trial, and if I gave you
a delay, that would be a violation of your client's
constitutional rights."
Well, I was sure there was something wrong about
that, and I finally figured out what it was. And it's the
GERALD R. FORD
88
same thing that is wrong with the notion that there would
be a problem of due process in granting amnesty. That is
to say that to make someone guilty of a criminal act and
punish him, we, of course, require a careful look at the
specifics of the case, but, of course, there is nothing in
the Constitution suggesting that you can't let somebody off
without having the elements of due process.
Let me just say one other word, and that has to
do with the issue of deterrence. An awful lot has been said
about deterrence in the amnesty question. I think at least
this can be said in response to it.
It is the universal opinion of all experts on the
criminal law that deterrence works best when it is swift and
when it is sure. That is to say that sanctions ought to
be imposed quickly after the wrongful act, and that the
nature of the punishment ought to be clear and certain. The
second great principle of deterrence is that deterrence
works best for conduct that is rationally calculated and
works less well when the conduct is the product of passionate
or deeply held feelings.
To the extent that we know anything about deterrence,
those are notions that I think are essentially universally
held. And this much can be said about the amnesty problem.
That is, as we face the problem now, in 1976, each of those
elements is at its weakest. That is, we are at the very
extreme end of the nondeterrence side of things.
89
Of course the punishment, if any, comes very
long after the act -- years and years after the act; the
punishment, if any, is uncertain. -- and we have heard things
this morning indicating how uncertain and, indeed, at times
almost capricious the punishment is.
And, of course, whatever you want to say about
people who are caught up in the Selective Service System --
that is, whether you believe you are dealing largely with
people who acted out of deeply held personal, moral commit-
ments, or whether you believe you are dealing with people
who acted out of deeply held feelings of cowardice and fear --
the one thing that is clear is that you are dealing with
people who acted out of emotions quite different from the
kind of feeling that motivates people who cheat on their
income tax.
So I think that there is very little reason to
believe that whatever is done about amnesty today is likely
to have much impact on deterrence.
Only one other thing ought to be added to that:
I think the one thing our history does demonstrate about
the amnesty issue is that the Presidents and the country
have dealt differently with amnesty after each of the major
wars. There never has been, either in the United States or
anywhere else that I know of, a uniform practice. And that
is quite understandable, because the country responds in
a very different way to the inevitably different kinds of
situations that a war brings.
8220 R. FORD
90
Although people like me, proponents of amnesty,
have often pointed to the Civil War, for example, the fact
is that the Civil War was really quite a different kind of
situation. There was a strong political necessity to bring
the North and the South back together. In that sense it is
different. The Whisky Rebellion was different too, and
of course the Second World War was different, and every war
is going to be different.
There is no possibility that whatever the
Congress or the President does as a result of the Vietnam
war is going to set a precedent to which we believe
we would be bound after any other future war.
So it seems to me, for all of these reasons, that
whatever you want to think about amnesty, you ought not to
think that deterrence has any significant relation to what-
ever action the Congress and the President are going to take.
MR. AGRONSKY: Monsignor Rice, I should like you to respond
to the whole issue of conscience, but first I want to call
on Joseph Papp, who is the producer and director of the
New York Shakespeare Festival, and producer and director of
the New York Public Theater. He is eager to place the
problem in a wider perspective.
MR. PAPP: "Conscience does make cowards of us all." I
always feel rather ineffectual coming to Washington. For
some reason or other I feel that unless I am arrested we
will not be very effective in what we are doing here. How-
91
ever, I don't really believe that is so today.
Speaking in a very overall way about this
particular gathering of people and these very interesting
comments and statistics and points of view, I feel that it
is a very helpful innovation that the issue of amnesty,
which has been more or less dormant in terms of the general
public as well as the Congress itself, is being brought up
in a sort of consciousness-raising session. I hate to use
that belabored phrase, but this is a very important first
step in creating interest in the problem.
There is no question in my mind that the American
people, for the most part, are more concerned with other
things at this time. And I am sure they would like to get
the whole thought of the war way, way, way in the back.
Unemployment is raising its head, and the whole question of
surviving economically is such an overwhelming concern now
that people are not likely to consider amnesty an immediate
issue. And politicians, as we have seen, are even less likely
to bring this issue, which they consider unpopular, into the
current election campaign.
So I have the feeling that the responsibility
begins right here in this room, this day. The moving
individual storieswe have heard create awareness and tell
various people various things. Certain politicians who
might not necessarily agree with unconditional and total
amnesty can't help observing that injustices are being
perpetrated and continued seemingly for no real reason.
&
FORD
GEPALD
92
There is a philosophical question here.
Mr. Jenkins talked about the total picture at the time
all this went into effect. In a sense we are reaping the
consequences of a very immoral time, an immoral act and an
unjust war in which many men died. That is part of the pity,
that many good men died in this war. I think you are right
to say, Mr. Jones, that we should concern ourselves with all
the men who participated in this war who were wounded, who
died, who have come home shattered in mind and body, and
with those who are unemployed. I think the issue of amnesty
touches on all these people because they were victims of the
entire situation.
And when we talk about due process I have to smile
a little bit, because I do know this war was conducted with-
out due process. It was an undeclared war, and the various
kinds of barbarism that this war engendered has very little
to do with the constitutional notion or sense of legal
justice and due process.
As Izzie Stone pointed out, we have sat down
with enemies who have shot at us, killed our people, bombed
our allies' cities. We sat down and made deals with them
after the war, and these were enemies.
None of the people we're talking about today shot
at us. These people have for the most part stood up and pre-
sented their viewpoints and resisted joining a very unpopular
war. Among these people I am sure there are people who were
AWOL and people who have committed some less significant act,
93
something smaller than standing up with your conscience.
There may have been many acts not as magnificent, not as
great, but these acts, particularly by people in the black
and Puerto Rican sectors, are still manifestations of that
entire picture.
As Mr. Jenkins said, I think we should look at
the whole story. I don't think the people in this room
here, despite the fact of opposition, are enemies. I think
we all have the obligation to announce this banner of forgive-
ness, to make it clear to the American people through the
grassroots, because we have to help the politicians.
Mr. Goodell, who sat here this morning, is not the
number-one enemy by any means, and he alone cannot change
anything. It has to be changed on a much larger scale. But
as we've said, amnesty is not a consensus issue. It requires
certain advocacy by key people. Certain politicians must
step forward and advocate it as in the national interest,
which it certainly is. It is no longer a narrow issue. It
does reflect the entire war. It affects all the veterans,
all the men who fought and died in this war. By taking these
actions I think we can have a feeling movement.
MR. STONE: A point of order in defense of Shakespeare, and
with all due deference to a great Shakespearean, Mr. Papp,
it seems to me that quotation is wrong. He didn't say "Con-
science doth make cowards of us all." I think it is, "Imagin-
ation doth make cowards of us all."
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MR. PAPP: I'm afraid you're wrong, Izzie. The line goes:
"Thus conscience does make cowards of us all;
And thus the native hue of resolution
Is sicklied o'er with the pale cast of thought,
And enterprises of great pitch and moment
With this regard their currents turn awry,
And lose the name of action."
MR. AGRONSKY: Izzie, I think Shakespeare had the last word.
I would like to ask Monsignor Rice to give us his
feeling about the whole issue of conscience that is involved
in the problem of amnesty.
MONSIGNOR RICE: We have to make certain distinctions, and
I think we are helped if we make the distinction between the
legal and the moral. The state may proceed legally, and
those who resist the state may perhaps be technically in
legal violation, and yet they are taking a very moral
action.
The Vietnam war was a perfect illustration of good
people standing against the might of the state. The issues
really were clear, but the young men who were against the
war were being oppressed by sophistry. They were being told
that their protest would not be of any value. They were
being told that they were unpatriotic. They were being
told they would be responsible for the deaths of other
people. The responsibility for the deaths of those who
died -- and regrettably they died in a cause that wasn't
worth the death of one of them -- the moral responsibility
95
for that rests on the leaders of the country, both on
those who gave the orders and on those who would not open
their mouths.
The Vietnam war was doubly evil because the
authority for it was being wielded by people who knew better
and were not only doing damage to a foe that wasn't a foe
but doing damage to the country itself.
Amnesty is not a particularly Christian or Judeo-
Christian idea, although the Jews have something like it in
the Old Testament. Amnesty is an idea, the idea being
forgetting: we don't argue about it; we wipe it out. But
what we are doing in this country is not forgetting. We are
not setting people free from the oppression of an evil that
they should not be bearing. People are forgetting that
they are suffering, the brave, sincere lads. And the broken,
weak lads who were destroyed by the war, we are forgetting
them too, just as we are willing to forget the veterans who
are in pain and suffering from the war.
It disturbs me very much when conscience is
brought up in the wrong way, as if to say that some of the
very evil people who did terrible things were merely following
their conscience. You can justify anything that way. But
the human being is endowed with reason, and the bulk of
humanity has a conscience on right and wrong. There are
normal consciences and crazy consciences: we can't judge
things by the crazy conscience.
R.
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These young men who stood against the war and
those who support them were in the finest religious tradi-
tion. They were in the finest intellectual tradition.
I saw an article in the National Observer, and
I expect to see more articles like that, putting down brave,
good young people who stood against the war, as if somehow
they were responsible for deaths that were caused by the
cheering sections of the veterans' organizations as well as
by the leaders.
I met these resisters. I received their draft
cards in public and I was called by the FBI. I met many
of them, hundreds of them. They were sincere, beautiful
young people, and we should remember those of them who are
suffering and forget whatever sin they are accused of.
MR. AGRONSKY: Colonel Edison Miller was a Marine career
officer in combat in Vietnam. From his personal experience
commanding troops at the front, he can describe the racial
and economic stratification of those Americans who served
in this war. His observations can illuminate the kind of
constituency that we are concerned with today.
MR. CONDON: Mr. Agronsky, I just thought to add to the
introduction that Colonel Miller spent five years as a POW
in North Vietnam, the highest ranking Marine Corps prisoner
of war.
COLONEL MILLER: Amnesty is a controversial issue in this
country. It is basically an emotional issue. There are very
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few logical arguments against amnesty, and I will be happy
to discuss those in detail with anybody at any time.
I have debated the VFW and the American Legion,
and I do not find the opposition to amnesty that some people
would like to have you believe is there. On talk shows,
generally one out of twenty will be opposed to amnesty.
Most of the phone calls coming in will be in favor of
amnesty.
.
We have a situation in this country in which
the President calls for reconciliation and gives us clemency.
It did nothing but raise a bush for a lot of people to hide
behind. We must hope the bush will burst into flames and
help people see the light.
But as Professor Sax said earlier, there are
really only two solutions to this problem -- nothing or
amnesty. Either live with the situation we've got or make
little stopgap attempts to solve the problem, which will
never work.
All the Clemency Program did was alienate everybody
on all sides of the issue. As you have heard, it provided
precious little to anybody.
The only way we are going to resolve this and have
reconciliation in this country is by universal unconditional
amnesty. Amnesty is not forgiveness of those who refused
to serve. Amnesty, as you all should be aware, is a method
of getting it behind us, forgetting about it.
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It applies equally to President Nixon, who
obtained his pardon, as Mr. Stone pointed out, perhaps not
quite legitimately. It applies to Lieutenant Calley. It applies
to me, who dropped bombs and killed Vietnamese people in a
war we should not have been involved in. It applies to
all of us, those who got us into the war, those who
participated, and those who refused to participate.
Amnesty means let's get it behind us and let's
get on with the business of making this country a little
better. Let's get on with reconciliation and getting along
with each other. Many of the people I have met who deserted,
refused to serve, are probably some of our best young
American men, because they had the courage to stand up and
say, "Hell, no, I won't go." Muhammad Ali said it. Look
where he is today. The same news commentators that condemned
him five, ten years ago are now calling him, in his own
words, "the champ." He is the champ. We have forgiven him.
We have forgiven a lot of people.
I think we need young men who have the courage to
stand up and express their convictions back in this country
helping us now. I am not going to speak disrespectfully of
those who went to Vietnam, not wanting to go but not having
the courage to speak up, but I feel much more empathy with
those who expressed their views. I have more respect for
those who can stand up and take society's sticks and stones,
even if I do not agree with them, than for somebody who just
drifts with the tide and goes where he is showed.
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You have heard the major arguments against amnesty.
First, what about those who served? Well, I served, and if
I take any pride or honor in my service, it is not sub-
tracted or added to one bit by anybody else's service or
lack of service. If I have pride and honor in my service, it
is there in me. People who did not serve cannot detract
from it, and people who served more than I did cannot detract
or add to it. I just don't see that argument at all.
The argument that we won't be able to raise armies
in future wars Mr. Stone covered very amply. I feel the
same way. I have more faith in the American people than
those who feel that a granting of amnesty would preclude
us from raising an army in a time of national defense. I
don't see it. Americans will rise when their defense is
truly needed.
As for those who didn't serve, somebody else
had to serve in their place. You have already heard the
statistics: 10 percent of the eligible young men actually
served in Vietnam; 89 or 90 percent did not serve for
various reasons that you have heard Mr. Jenkins and others
point out. We all know these inequities occurred in our
draft system all through the years.
I have two brothers-in-law. One served in World
War II; one didn't. They refused to speak to each other for
years. I thought it was absolutely ridiculous. One went out
of his way to avoid service in World War II; one didn't. I
respect neither one more nor less than the other for his
CHALD R. FORD
100
views. They both had their reasons.
I think that those who served by saying, "I refuse
to go to Vietnam," really rendered a great service to their
country, because if the dissension in our country had not
risen to the point where all of us were involved, we would
still be in Vietnam. I would still be sitting in Hanoi.
Just recently President Ford got around to
canceling a military order that had interned Japanese in
World War II, an order which all of us have since greatly
regretted. After thirty-four years he got around to recog-
nizing, "Let's drop that from the rolls."
Is it going to take that long for us to get around
to recognizing that we were wrong in Vietnam? A major
controversy on that still exists, and the only way we are
going to overcome it is to drop it.
The personal feelings will linger on for a few
years, but it is about time we recognized that the legal
reprisals should stop. Let's hope it doesn't take thirty-
four years. It didn't take Andrew Johnson that long to
recognize it. He gave a conditional amnesty immediately
following the end of the Civil War, and three years later
he recognized that it was worthless and gave a total un-
conditional amnesty.
I think it's high time we had a President of the
United States who is a big enough man to make this type of
judgment and decision.
DR. HARGER: I am Dick Harger. While I was in Vietnam as
101
an air intelligence officer, I served in three capacities.
I flew combat missions in the war. I wrote intelligence
articles for the Commander in Chief of the Seventh Air
Force, and those were disseminated through various echelons.
And finally, I briefed the Commander in Chief and senior
staff.
After my Vietnam duty I was assigned to Headquarters,
United States Air Force in Europe, as the key intelligence
editor, analyst, and briefer, again for the intelligence
staff, and also for the Commander in Chief. During that
time, I briefed four-star generals on a regular basis.
The one thing I don't think has been brought out
in this conference is the issue of secrecy, which I feel is
vitally important. To try to give you some indication of
the magnitude of this issue, let me just simply say that at
one time in my intelligence career I declined an additional
security clearance which was above the top-secret level. If
I had taken that clearance, I would have had to take a top-
secret oath.
I don't know if you can begin to understand the
implications of this, but now with the exposures of the
CIA, the FBI, and so forth, I think this issue is finally
beginning to sink in. What were some of the implications
of this for what we were doing in Vietnam?
For example, we conducted a bombing campaign in
Laos, in violation of the Geneva Accords, which we
kept secret from the American people for over six years.
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102
People in Europe knew about it, but you weren't informed
of this until 1970.
And let us look for just a moment at the Tonkin
Resolution. You may recall that in August 1964 two
American destroyers, the Maddox and the C. Turner Joy, were
allegedly attacked by North Vietnamese torpedo boats.
If you will take time to read the Senate Foreign
Relations Committee's hearings on this issue, there is only
one conclusion you can reach about the Tonkin Resolution,
and that is that it was based on information which was
apparently fabricated. If the information was not fabricated,
there was certainly not enough to warrant the Resolution.
As for the issues of secrecy, first of all, we
haven't begun to understand the weapons systems that were
used in that war. We have heard a lot about napalm; we have
heard a lot about cluster bomb units; but I am talking about
weapons systems whose effects were enormously more devastating.
One of my briefing duties was to keep the Commander in Chief
of the United States Air Force in Europe informed of the
weapons systems and their effectiveness in the Indochina war,
and what the applications would be in the European system
in the event that we ever used those same systems in that
theater of operations. These can fairly be called genocidal
weapons. They caused civilian casualties in South Vietnam
alone that exceeded the combined losses of American and
South Vietnamese troops.
103
I still believe very, very strongly that if the
American people began to comprehend the implications of the
weapons systems they were using in that war, some of them
might want to start in the Pentagon to get the full facts.
As a former intelligence officer, I do not feel that I can
release this information. I think we have done the wrong
thing many times in such cases as the Pentagon papers, because
it is driving our agents and intelligence networks in the
United States even further underground.
Just two final observations about how this
intelligence affected me at a personal level and the impli-
cations it has at the international level, and why I think
the men who resisted during the Vietnam era have shown great
moral courage.
When I was discharged from active duty in 1969
because I realized I could no longer pursue my career as
a regular Air Force officer because I could not support what
we were doing in Vietnam, I left my wife and children in my
home in Arkansas and toured the United States for interviews
for teaching positions. It was a long and exhausting trip.
When I got back my wife told me one night, "Dad" --
that's my father-in-law -- "thinks you are still in the
employment of the intelligence community."
When I heard this, I was very, very much shaken.
But I finally reflected on what my father-in-law had said,
and realized he simply comprehended a contemporary American
tragedy we don't seem to be willing to come to grips with:
104
In our mastery of secrecy and deceit, we have become an
estranged people. We no longer trust some of those who are
closest to us.
Now at the international level, what has this done?
Very few if any of you have ever heard of such a thing as a
Strategic Integrated Operations Plan. This is an unclassified
title of what, during my tenure in the military, was a highly
classified document. It was a document which literally targeted
the world for annihilation.
From a professional point of view as a behavioral
scientist, what I think we have done, in the case of Vietnam,
which portends disaster for the human community if we don't
get aggression under control, is this: We have rewarded
people like me. I got all kinds of tax breaks while I was
in Vietnam. I got extra pay. I got all kinds of privileges
that, of course, these young men sitting here at this desk
are denied. They are exiled. I was rewarded for engaging
in, for being actively an instrument of, a policy of
oppression and indiscriminate destruction in Vietnam. I
have GI benefits. I have used them. I have been rewarded
for my part in the atrocity.
I think it is a very, very tragic situation we
face in the United States today when we find that those
who have been altruistic have had this country literally
turn its back on them. And that is why I support unequivo-
cally unconditional and universal amnesty.
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MR. GROSSMAN: I'm Steve Grossman, from Toronto, Canada,
Exile War Resisters Organization. The question of amnesty
is not a question of mercy for war resisters. It is not in
its greatest dimensions a question of relieving the very
serious legal and social liabilities of acts of war resistance,
as serious a problem as that is, and in the enormous numbers
that that problem encompasses. The question of amnesty in
its greatest dimension is the question of resistance to an
unjust, aggressive American war that violated countless
legally binding international agreements between the United
States and the peoples of this world.
What Dr. Harger is talking about is the criminality
of the war, and that is what has motivated us, and continues
to motivate us, to demand not mercy, not merely relieving
our hardship, but true justice and the affirmation of the
right of the people of this country to resist any such wars
at any time they are made, no matter how they are cloaked in
secrecy. It is our duty to ferret out the truth and to
respond as honorable people to that truth as we are able to
perceive it.
MR. AGRONSKY: Admiral LaRoche, you asked to make some
observations.
ADMIRAL LaROCHE: I am pleased to follow Colonel Harger be-
cause I think he put it in a proper perspective. But I
would like to address specifically the aspect of all the
men who came to oppose the Vietnam war after they had joined
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106
the military service. They are probably the most difficult
ones to deal with. And that is where we get into the
problem of the difference in the numbers, whether we are
talking about 50,000 or 100,000, or whatever it is.
Somehow in the discussion this morning on numbers,
it seemed to make a difference whether it was 50,000 or
200,000 or a million. I submit that it doesn't make any
difference at all whether it is 50,000 or 100,000. We are
concerned, if our system of equity and justice means anything,
with any individual who has been unfairly treated. And for
those who say we will do it legally, I would submit that it
is not going to be done, and that's why we are meeting here
today.
Specifically, Mr. Brown made the point that some
350,000 men have less-than-honorable discharges. Actually,
we have about half a million men who have less-than-honorable
discharges in the United States today. The point I would like
you to remember is that these are almost entirely enlisted
men. These are not officers. The reason they are not
officers is that officers could quit any time they wanted
to. Any time an officer desires to stop serving, he simply
resigns and gets out of it. So if that isn't a class dis-
tinction which became very evident in the Vietnam war, I
don't know what is.
Now, Dr. Levy, of course, was one of the classic
exceptions in that he was determined to make his point
while he was there. But it is totally true in the military
107
that any time an officer wants to get out, he may do SO.
He may have to stay for six months or a year, but he is
always permitted to resign in order to escape trial by
court-martial.
I was serving on active duty then, and I saw the
pressures rise. Young men were very disappointed in their
government, disenchanted with what they knew about Vietnam,
and they decided to oppose the war. Some of the men went
to smoking pot. Some went to coming back to the ship late.
Some of the manifestations were punching somebody in the
nose.
Well, we took the easy way out in the military
service and kicked the bums out at a much higher rate than
we had ever kicked the bums out before. It was a very simple
way, because we had a conscript army and we could get all the
people we wanted, so if anybody didn't meet our idea or
criteria of what he should be doing, out he went very quickly.
These young men we have kicked out hate the
government, hate the services, and this is an unhealthy cancer
in our society which we could easily rectify. I am horrified
when I hear the government man from the Justice Department
say there is nothing the government can do, and we have to
rely on President Nixon's appointee to provide a remedy.
I always thought somehow, from back in my early
days of studying the Constitution -- and not being a lawyer
I am limited -- that the ultimate power rested with the
people. And that gets us back to Monsignor Rice. Somehow
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we have to get a feeling of outrage from the people in
this country about what has transpired, so we can generate
some enthusiasm to bring about a complete and total amnesty.
How do you do that? Specifically, how do you deal
with these guys who've got BCD's? That's not so difficult
either. We in the Navy, Army, Air Force and Marine Corps
ought to have one type of discharge. Because you see, when
a man makes a mistake in the Navy, comes back late, we can
do anything with that man. We can send him to prison; we
can fine him. We can't use a cat-o'-nine-tails any more,
not for the last hundred years, but we can send these men
to prison literally for life. In wartime we can shoot them.
When we finish with a man's service, we ought to
turn him back to society clean and whole, not stigmatized in
any way. Unfortunately, we can stigmatize him, and that is
an old-fashioned idea. We have made changes in our service,
and I think that is one of the first things we ought to do,
to have one type of discharge -- it's easy to translate that --
and give everyone who already has a less-than-honorable
discharge the same honorable discharge, or whatever you want
to call it.
We have had a lot of discussion on the legal
and moral aspects today. When you get right down to it,
it seems simple to me. It's amnesty, either yes or no.
MR. PHELPS JONES: I have a point. I spent thirty years in
the Army, and I think I know what I'm talking about. An
officer can submit a resignation any time he cares to, but
109
that resignation is accepted at the convenience of the
government. There are such things as obligatory tours.
Coming out of ROTC -- you will remember that antique
institution which disappearea some years back -- we were
obliged to serve for two years. Coming out of the military,
we spent four or five years.
So yes, an officer can submit a resignation, but
it doesn't mean he is on his way out the next day, and
surely not during wartime.
ADMIRAL LaROCQUE: An officer who does not want to be an
officer is no good to the military service, so we very
quickly get rid of him or put him in some noncombat position
where he is very comfortable, which is not exactly the same
thing as sending him to Vietnam. In other words, we wouldn't
send a man to Vietnam who didn't want to be an officer.
MR. AGRONSKY: I would like to move to another aspect of
this amnesty problem that has been touched on by everyone
who feels deeply about this. We talk always of those who
gave up their lives, and we have with us Mrs. Pat Simon, the
mother of one young American who did, indeed, give up his
life in Vietnam.
MRS. SIMON: Before I speak from my personal experience, I
feel I must respond to something that Mr. Jones said. He
said there was no historical precedent for the kind of
amnesty we are asking. That may or may not be true, but I
feel there is no historical precedent for the kind of behav ROEORD
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we exhibited in Vietnam. He also referred, with some
horror, to a customer choice of war. I would like to
propose that we'd better be able to choose the kinds of
wars we are going to die for and kill for, especially with
the weaponry stockpiled around the world.
One of the strongest arguments, of course,
against the granting of an amnesty is that it would be
unfair to those who were killed in Vietnam and to their
families. When former President Nixon came on TV several
times a year during his presidency and said that we would
make a mockery of the sacrifices of those who died in Vietnam,
I felt very offended and insulted because I didn't think, in
the first place, he should presume to speak for us. Also,
I knew that he did not speak for a number of parents who
lost sons in Vietnam.
In talking with other parents, I realized that we
had the responsibility of trying to counteract that kind of
hostile climate, especially when it was encouraged by the
Administration, which had such power and influence with the
media.
Some twenty-eight parents who lost sons in Vietnam
and I founded an organization called Gold Star Parents for
Amnesty a little over two years ago in a Unitarian church
in New York. The purpose of the project was to gather
support for amnesty where we could from other people who had
lost sons in Vietnam.
111
We were very much encouraged to learn, as we
got in touch with parents state by state -- in the first
place we got a 15 percent response, which is high for any
kind of mailing -- that a third of the people who responded
were in favor of amnesty. It varies widely state by state,
but overall approximately 30 percent who had lost sons who
were in touch with us were in favor of amnesty.
We also found with Gold Star parents, as with
the population in general, that when people are given infor-
mation about the issue -- about the people and the suffering
and hardships involved, about the meaning of amnesty --
they are far less threatened by the idea, and in fact are
quite open to it. It is a reasonable kind of solution that
people can see after they are presented with the facts,
rather than a vindictive kind of attitude. But of course
we have had a great deal to counteract.
We feel that we should praise the people who
resisted the war. We feel that we should ask their forgive-
ness for forcing them to make cruel choices that the rest of
us didn't have to make. Their lives and their principles
were on the line. They had to make a choice about Vietnam,
and it seems absurd to me that the population is encouraged
to be mad at those people.
We maintain that if you must be mad at someone,
you should be mad at the government that got us involved in
the war and kept us there for years and years and years.
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CONSTITUTIONAL ASPECTS OF AMNESTY
R. FORD
114
115
MR. SMITH: Mr. Agronsky, I would like to make a point,
perhaps to be the devil's advocate as much as anything else.
I don't expect a great deal of concurrence.
Those who think that because the Vietnam war was
wrong, the majority of the American people are now going to
change over and honor those who were smarter than the
majority, which didn't know it was wrong, are, I think,
barking up the wrong tree.
The amnesty that we are talking about has, as I
see it, nothing to do with justice. Amnesty is a pragmatic
issue. Justice is the right of all people. If a person was
not guilty of something, he is not entitled to amnesty; he
is entitled to be acquitted. If he is guilty of something,
he is entitled to have that determined, too.
We have to look at what amnesty was put into the
Constitution for. It wasn't put in as part of our justice
system, to see that each individual gets fair and equal treat-
ment and due process. Instead, it was put in there so that
our country, as an entity, would have a satisfactory means --
when a cancer was growing and you wanted to eradicate it and
get on with other things, you would have a device that would
allow you to do it.
Amnesty is not for the few. Amnesty is for the
many. If it is to help us in this country, it is because as
a corporate body we need it to eradicate something that is
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116
bad and distasteful and should best be forgotten. It is
not to take care of injustices to some fine young people,
and also take care of justice to some very bad young people.
That is not what the real purpose of amnesty is. It is to
help our country get past something and to get on with it.
I think what we want to realize -- and you can
feel very strongly if you want to that since the war was
wrong, people who had the foresight and intelligence and courage
to resist it should now be honored -- is that as a practical,
pragmatic matter, the American people will never honor them
as such.
But we hope for the good of our country that what
we can do is learn lessons from the war, and get an amnesty
as a constitutional right. We have to get a blanket amnesty.
And although we haven't ever done it before, we had never
impeached a President before, either, but we would have if
he had stayed three or four more days.
These are the things that the Constitution is
for. We need it and we ought to be practical about it
instead of, I think, trying to achieve a consensus that
we will never achieve.
I am suggesting that it doesn't matter who was
right about the Vietnam war. For those who believe, as
Mr. Jones does, that the majority were right, that is one
thing. We don't have to decide that. For those who believe
to the contrary, we don't have to decide that either. But
we can see that we have a continuing, never ending, unyielding
117
dialogue that divides our people and keeps us from
attacking the problems that were revealed by that war.
We ought to get this behind us and get on with it as a
practical, pragmatic issue.
MONSIGNOR RICE: To add something else practical and
pragmatic, that's all very fine, but we are now in the pro-
cess of forgetting all about these people. We are healing
our wounds and forgetting that there are people suffering
in a country that seems to be doing fine without them.
That is why you can never let either the emotional or the
moral issue die totally. Pragmatism won't do it. It will
help but it won't do it.
MR. AGRONSKY: I don't think Mr. Smith advocates letting
those issues die totally, but he does not in any sense regard
amnesty as only a matter of conscience. He merely says that
the constitutional process provides the remedy and we should
address ourselves to the constitutional process.
I would like to ask Mr. Vayda of the Justice
Department if anything said here today has given you any
ideas about changing 'the Justice Department approach. Do
you think the Justice Department approach in this area is
justified and need not be changed? How does what has been
said here affect your attitude toward this problem?
MR. VAYDA: As you probably know, the Department of Justice
has been on record on two occasions. The first time was in
1972, when Deputy Assistant Attorney General Leon Ulman
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testified before the House committee examining the
possibilities of amnesty, and stated that the question
of amnesty is one that belongs to the President and the
President alone.
On the second occasion, I believe last year,
Mr. Maroney, who is the Deputy Assistant Attorney General
of the Criminal Division, took a similar position, and that
is the position of the Department of Justice.
As far as amnesty or clemency is concerned, this
is a matter which we believe is reposed in the President
and is for him alone to determine. That is the Department's
view.
MR. AGRONSKY: You can't carry it beyond that?
MR. VAYDA: No, that is the Department's view.
MR. STONE: I would like to ask the Justice Department
man a question. In the Civil War, the famous Lincoln
amnesty was based upon statutory authority designed as a
measure to encourage disaffection in the southern rebel
forces and bring people over. That is an example of a
congressional statute's providing the basis for the presi-
dential executive orders for amnesty. How do you explain that
position?
MR. VAYDA: As I recall, during that particular period
President Lincoln stated he needed no assistance from Con-
gress on the question of pardons, and he disregarded the
119
congressional enactment. I think that is fairly clear in
that particular period of time. He acted solely on his own
from the right reposed in him in the Constitution, a right
which was recently announced again by the Supreme Court in
the case of Schick V. Reed, which I believe is a '73 decision
of the Supreme Court, that the Constitution expressly
empowers the President and the President alone to grant
pardons or amnesty.
MR. STONE: You wouldn't deny the power of the Congress
by resolution to advise the President of its will?
MR. VAYDA: I would suggest if the Congress chooses to
resolve or make a resolution as far as amnesty is concerned,
if the resolution does not have the binding effect of law,
it would be perfectly proper. But the President, as you know,
is expressly empowered to grant pardons.
MR. STONE: Wouldn't you agree that a resolution of that
character would make it easier for the President to act if
he wished to and harder for him not to act if he didn't
want to?
MR. VAYDA: That is a decision for the President to make.
MR. SCHWARTZCHILD: The Supreme Court on a number of
occasions in the last century expressly said that Article 2,
Section 2, of the Constitution gives the President power to
grant reprieves and pardons for federal offenses except in
is
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120
cases of impeachment, but did not take away from the
Congress the power to enact amnesties legislatively. It
said that explicitly in those very words.
The position of the Nixon Administration and its
Justice Department and of the Ford Administration, to which
Mr. Vayda refers, is, it seems to me, a mere extension of
the progressive power hunger of the executive branch, which
has endeavored to take away from the Congress as much power
as possible.
Senator McGovern has spoken of Mr. Ford's
action this morning in taking a legislative matter, namely
the food stamp program, into his hands.
Similarly, the denial by the Justice Department --
by Mr. Ulman and Mr. Maroney -- of the declared power of
the Congress to act in amnesty is, I think, part and parcel
of that same game of power traveling down Pennsylvania Avenue
to the White House. There is no question that the Congress
believes it has that power, and there is no question that
the Supreme Court believes that Congress has that power.
And that, it seems to me, settles the issue very nicely.
MR. VAYDA: I don't think the Supreme Court has ever
addressed the issue directly. I am sure you realize, Mr.
Schwartzchild, that, in this particular context, there have
been two cases -- Brown V. Walker, which is an 1896 case, and
I believe the Laura case -- which discuss the issue of
immunity. Both of them repose the authority of immunity in
121
the executive, and they said you exercise the power if
you so desire.
Now I think the practical solution, as Senator
McGovern did point out, is that any question of
amnesty must ultimately be decided by the President.
Professor Sax in one of his many articles on the same issue
has pointed that out.
MR. SAX: I don't want to make a debate about this, but
since something I wrote was referred to, let me at least
quote what I wrote. What I said was that the better view
seems to be that both the Congress and the President have
amnesty authority. I never said the President alone had
amnesty authority. And, of course, in order for Congress
to act, the President, I assume, would have to sign the bill.
I think it is not fair to say before an audience
like this that the Congress has no authority to enact amnesty
legislation. The most you could say is that if the Congress
enacted amnesty legislation, and the President vetoed it
and the Congress overrode the veto, that would present a
question on which the Court has never passed. Only in that
narrow context, it seems to me, could the question be raised.
MR. VAYDA: Well, I agree with what he is saying, that the
Court has not said that earlier. The Court has never addressed
the issue of amnesty directly as far as Article 1, Clause 2,
Section 10, is concerned. Any expression of power in the
Constitution gives the power of amnesty or the power of
&
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:
122
pardon, as opposed to amnesty, solely to the President.
And I think you will agree with that.
MR. SAX: To pick up on the question Mr. Agronsky asked
you, in light of your role as adviser to the President, what
kind of advice do you think the Justice Department ought to
give in light of the experience you have had following the
Clemency Program?
MR. VAYDA: As you appreciate, I have not spoken to the
President recently. But nonetheless the Office of Legal
Counsel does speak to the President and does speak to him
on this issue. And they have succinctly stated that the
power to grant amnesty resides in the President, especially
since he has already acted. There is another situation in
which he has acted in this area. And any act on the part of
the Congress to modify, to change, his actions would be
unconstitutional because of the constitutional provision.
And as you say, this audience is not really the forum for a
discussion of this nature.
MR. AGRONSKY: Mr. Vayda, just one more question, and I will
make it very specific indeed. Granted we don't expect you to
leave here and run over to the White House and say, "Mr.
President, I would like to bring to your attention some
matters that have been raised here." But we do wonder if
you feel that anything has been raised here that might induce
you to urge the Attorney General, for whom you work, to
reconsider any aspects of the Justice Department's position?
123
MR. VAYDA: As far as the Justice Department position is
concerned, as you well know, we were dealing with approxi-
mately 6,500 individuals when the program was initiated.
That was September 16, 1974. Subsequent to that or to the
announcement of the Proclamation, as you know, we had entry
from those outside the country, and we had a very significant
review accomplished by all United States Attorneys, about
940 United States Attorneys and their assistants, throughout
the United States.
As a result of this large review of cases,
approximately 1,700 of the then pending 6,500 were dismissed
as having no prosecutor of merit. When I speak of prosecutor
of merit I am speaking of evidence -- not whether the assis-
tant liked the case or didn't like the case or was against
the Vietnam war or not against the Vietnam war.
That left us with a residue of approximately, I
think, 4,500 cases. Of that number, I think approximately
725 or 730 individuals did come forth and did, in fact,
enter the Clemency Program as administered by the Department.
I am only competent to speak of the Department's
program. I have heard a lot of talk about amnesty and
clemency today, but the only true amnesty is whereby the
draft evader, his whole offense, everything is totally wiped
away. The fellow who came in and fulfilled the period of
alternate service given to him by the assistant or United
States Attorney can go forth to a future life unencumbered
by any possible stigma which might attach to some of those
R.
FORD
that are left.
GERALD
124
MR. AGRONSKY: Mr. Vayda, it is almost as if you never
heard the words of Mr. York, who demonstrated to you what
he had to go through. I grant you that it was not under
the aegis of the Justice Department. But he does address
himself to the whole problem of that voluntary work by which
he expiates his having resisted the authority of the govern-
ment. I believe that his observations demonstrate -- and I
imagine that they are common to most of you who have gone
through the process -- the extreme difficulty of going through
that particular kind of process and that machinery. It isn't
as if just because it is set forth it happens.
Representatives of the government like yourself,
who sit here as an observer for the Justice Department, might
ask themselves if perhaps the conditions that are set forth
are really not the right conditions and should be changed.
Would you recommend that they should?
MR. VAYDA: I see no possible way, other than taking the
legal steps we have taken, in which to wipe away this innate
prejudice that prospective employers might have. Despite
the fact that you come out of this whole thing with an
honorable discharge, some day perhaps, in a new position,
you will be asked, "What did you do during the war?" "I
deserted."
There is nothing that government can do, other
than perhaps bring an action, if it is one appropriate under
the Civil Rights Act, to take that innate prejudice away from
125
that prospective employer or your prospective co-workers.
No matter what we say, there is nothing that can be done
to take that innate prejudice away.
MR. STONE: One of the previous witnesses said that he
had yet to hear a logical argument against amnesty, and that
is true. But I think that after more than fifty years as
a reporter, I can tell you what you would hear privately,
logically, at the State Department or the Pentagon against
amnesty. It is very logical, but they don't dare say it
in a country that still has a free society.
They would say that, unfortunately, the Vietnam
war undermined our will; that it and its consequences have
made it more and more difficult for those who know best --
generals, diplomats, State Department people -- to take rapid
though often covert steps to support the national interests
abroad. They would say we have billions of dollars of
investments abroad. They can be protected only if we make
clear that any interference with them can bring swift
retaliation by our armed power. We are Number One in the
world. And this is gravely endangered by the consequences
of the war.
It is very hard to carry on covert CIA operations
any more. The press is constantly exposing things. Congress
has abused the executive power and passed the War Powers Act.
If on top of that we have an unconditional amnesty,
then we are saying to the armed forces, aren't we, that if
they want to get mixed up in an Angola that they feel tests FOR,
GERALD
126
our will, and the majority of the people feel the hell with
that, we have had enough foreign adventure, and what is in
it for this country anyway -- if they don't fight or if they
desert or refuse to answer the draft call, there will
eventually be amnesty anyway.
The real argument is an argument against two
intertwined things. One is democratic control by public
opinion of the war-making power and the increasing sophisti-
cation which the State Department and the Pentagon sense
about their war propaganda and their excuses for trying to
play nursemaid to the world and take care of our investments
abroad.
And intertwined with that is something that
Monsignor Rice touched on, that a fundamental part of the
constitutional system is the great idea that comes down
to us in part from two great Spanish Jesuit priests --
resistance is obedience to God.
One of the basic premises of the American system --
and this comes from John Locke -- is the idea of unalienable
rights in a government of limited powers. It is not easy
to define, it is full of risk, but at some point there is a
right of resistance to the government if you feel the war
is unjust or that it has been brought about contrary to the
Constitution. You risk your neck by doing it, but you have
a duty to do it; and that resistance, that rebellion, is
part of a free society.
127
Jefferson said it very, very plainly, and it is
implicit in the Constitution in the concept of unalienable
rights. There comes a point where the ordinary citizen has
a duty to resist, and that is involved in a resistance to
war.
What the Pentagon and the State Department fear
is that their power to engage in reckless adventures
abroad -- reckless by my standard, not their standard --
has been seriously curtailed, and an amnesty would curtail
it further.
Now that is a logical argument, but not one
that they dare to make openly, and I think that is the real
argument they use with the President and on the Hill.
MRS. RUKEYSER: Some things that have been said today show
us what is underneath the facts that have been talked about,
and what has happened to the imagination of the American
people as a result of these issues being brought before us
and the attempt to forget them, and what this has meant to
us imaginatively. It is full-time work to put Vietnam aside
or even talk about amnesty and the reasons why we don't have
it -- full-time work. We all show in ourselves what is
being done to us.
It seems to me that the resisters have acted out
their beliefs. They are not writers; they are people who
have said, "We perceive what is happening" --- and acted
accordingly. They are not ahead of their time. You can't be
FORDO & BERALD LIB
128
ahead of your time; you can only respond to what is
happening.
And that is what the resisters have been doing.
The government's slowness to notice has been a terrible
deadness, but the government can be alive, the government
can be responsive, the way the young men have been responsive.
They are not pacifists. We older people are pacifists, some
of us, but the young men have said, "There are wars I would
fight in." They said, "I would fight against Hitler." Some
have said, "I would have fought in Spain." But the govern-
ment cannot tolerate these resisters.
There is a strength here. People here have said
we will lose strength if we don't punish the resisters, but
there are strengths and imaginative forces in resisters on
which things can be built.
Many times today we have sounded as if we were in
a period of mourning, and trying to find a way to act on the
qualities that were in the resistance -- are in the resistance,
in these men and the women who went with them, and babies
who are now being born. I think of my first grandchild,
who came from Canada to this country yesterday to live.
It is a question now of how we are going to use
the strength that has been expressed in many, many ways
today, whether we have avenues called amnesty in our cities,
whether we have rivers called resistance; these are the
sentimental ways in which it could be done. But to build on
the qualities expressed today, and to draw strength from them,
that is what I hope for.
129
MR. PHELPS JONES: One point. Izzie Stone raised in a
rather breathless way what the State Department and Pentagon
are really thinking. He should just read Dr. Kissinger's
speech in San Francisco and before the Congress. He
deeply deplores the loss of executive branch flexibility.
He may be right or wrong, that is arguable, but it is not
a dark plot.
MR. STONE: That is the basis of Kissinger's argument.
What he means lies behind and is really visible if you read
Kissinger's speeches; that is, to him flexibility means
absolute power.
MR. AGRONSKY: We must give up this room of the Senate
Judiciary Committee, so we must conclude this forum.
I think a lot of points were raised here that
are worth examination. I feel that the members of the
government, of the Administration, who sat through the
session have certainly been given some food for thought and
perhaps it will produce some results. I think every facet
of feelings about amnesty has been set forth, or nearly every
one. It has been a very wide-ranging spectrum of opinion.
I want to ask Senator Hart, who is the initial
sponsor of this forum, if he would like to make some con-
cluding remarks.
SENATOR HART: No concluding remarks except to thank all of
you for the contributions that have been made.
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130
I only wish that I could grab the Justice
Department's explanation for the failure of Congress to
have acted. It is not because we doubt our constitutional
power. It is that we lack the guts to do it.
Then the final congressional alibi: in an issue
so emotional and in a land so large, I think we kid ourselves
if we anticipate that Congress will act unless the one voice
common to all of us in the country, the President, urges us
to act. And whatever his verdict, it will, I think, accord
a very high place to those of you who have spent a whole
day trying to move us, and I am grateful to everyone.
131
APPENDIXES
GERALD R. FORD
132
133
1. THE NUMBER OF THOSE STILL IN
NEED OF AMNESTY
Figures Prepared by
Reverend Barry Lynn
of the United Church of Christ
The following figures represent the number of persons
still in need of a universal, unconditional amnesty. The period
covered is roughly January 1, 1961 to April 30, 1975.
A. Draft Resisters
4,400
- persons currently sought by the Justice Depart-
ment for alleged violation of the Military
Selective Service Act.
800,000
- persons who did not register for the draft and
who are still liable for prosecution. Their
names are largely unknown. This is based on
an approximately 4 percent failure-to-register
rate.
8,000
-
American males who acquired Canadian citizenship
during the Vietnam era and since. Most are
theoretically excludable as undesirable aliens,
even if it was never proven that they violated
the draft laws. 8 U.S.C. 1182 (a) (22) excludes
persons who obtained foreign citizenship in
order to "avoid or evade service or training
in the Armed Forces" and the proof required by
law to find such intent is very minimal.
11,178
-
persons already convicted for violation of the
Selective Service Acts. (Only a few of these
persons are still in prison; many are still on
probation.)
700
-
unconvicted draft evaders now doing alternate
service under the Presidential Clemency Program.
is
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134
B.
Military Resisters
8,000
- persons still classified as "deserters-at-
large." (This includes 4,200 from the period
August, 1964 to March, 1973.)
710,000
-
veterans with less-than-fully-honorable dis-
charges.
C. Civilian Resisters
1,000's - of civilians hold felony or federal misdemeanor
records for nonviolent opposition to the war.
They may have destroyed draft files, burned
their draft card, failed to obtain proper per-
mits for demonstrations, or violated other
federal statutes prohibiting "interference"
with military operations.
135
2. AMNESTY BILLS BEFORE THE NINETY-FOURTH CONGRESS
Summaries by the Library of Congress
S. 1145. * Mr. Hart (Mich.) : 3/11/75. Judiciary.
Cosp: Abourezk, Brooke, Gravel, Hatfield,
McGovern, Nelson.
National Reconciliation Act - Provides that any person who
failed or refused to register under the Military prior to March 28,
1973, or failed to accept or refused induction into the Armed
Forces between such dates, or who, while liable for military
service, otherwise violated such Act or regulations promulgated
under its authority between such dates, shall be granted immunity
from prosecution and punishment under such Act for such evasion,
failure to register, or other violation.
Provides that any member or former member of the Armed Forces
who is alleged to have been absent in violation of the Uniform
Code of Military Justice during the period August 4, 1964, to
March 28, 1973, shall be granted immunity from prosecution and
punishment under the Uniform Code of Military Justice for such
absence.
Requires that 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
March 28, 1973, or for evading or refusing induction, or while
subject to induction into military service under such Act for
any other alleged violation of such Act shall be dismissed by
the United States, and all records and information relating
thereto shall be expunged from all Government agency files.
Provides that no person shall be denied any civil right or
employment opportunity because of any crime for which such per-
son was charged, convicted, or alleged to have committed and for
which relief was granted under this Act.
Makes it a misdemeanor punishable by a $5,000 fine or one-
year imprisonment, or both, to deny any person employment or any
civil right because of any crime for which such person was charged,
convicted, or alleged to have committed and for which relief has
been granted under this Act.
*
Amendments dealing with the question of less-than-honorable
discharges are under consideration.
FORD
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136
Authorizes the appropriation of such sums as are necessary
to carry out this Act.
S. 1290. Mr. Nelson: 3/21/75. Government Operations.
Cranston, Humphrey, Javits.
Clemency Board Reorganization Act - States that the Presi-
dential Clemency Board shall be composed of nine members to be
appointed by the President, one of whom shall be designated by
the President to serve as Chairman.
Provides that all jurisdiction, responsibility, or function
with respect to any draft evader or military deserter is trans-
ferred from the Department of Defense to the Presidential
Clemency Board. Authorizes the Board to recommend alternate
service of up to 2 years for draft evaders and military deserters.
Authorizes the reacquisition of United States citizenship
by appearance before a United States district court judge,
renouncement of citizenship acquired from another country, and
pledging allegiance to the United States.
Provides that veterans benefits may be conferred in the
discretion of the Veterans' Administration or Department of
Defense after issuance of a clemency discharge under this Act.
H.R. 2230. Mr. McCloskey: 1/28/75. Judiciary.
Amnesty Act - Provides a program of total amnesty for deserters,
draft evaders and those refusing to register for the draft. Applies
the program to such offenses committed between August 4, 1964, and
January 27, 1973. Allows for a restoration of citizenship for
those who renounced citizenship as a result of U.S. involvement
in Indochina. Directs that pending legal proceedings against
such offenders be dismissed. Expresses the sense of Congress
that the President grant pardons for persons convicted of such
offenses.
H.R. 2568.* Ms. Abzug: 2/3/75. Judiciary.
Conyers, Edwards (Calif.), Harrington, Holtzman,
Mitchell (Md.), Rosenthal, Waxman.
War Resisters Exoneration Act - Grants general amnesty, not-
withstanding any other provision law, to any person for violation
of specified laws including the following prohibited acts during
the period between January 1, 1961, and November 22, 1974: draft
evasion, draft evasion abetting, and draft card destruction;
* On 1/14/75 Congressman Ronald V. Dellums submitted a separate
bill, H.R. 353, which is identical to H.R. 2568.
137
advising another to desert the Armed Forces; deserting from
the Armed Forces; missing the movement of aircraft, or unit
with which it is required in the course of duty to move; using
contemptuous words against various executive and State officials
where present as a commissioned officer in the Armed Forces;
concealing or assisting any person who has deserted from the
Armed Forces; and attempting to cause insubordination by any
member of the military or naval forces of the United States,
with the intent to interfere with the loyalty or discipline
of the military or naval forces of the United States.
Makes the effect of such general amnesty to restore to
the grantee all civil, political, citizenship and property rights
which have been or might be lost, suspended, or otherwise limited
as a consequence of such violation. Includes within this general
amnesty the granting of an honorable discharge to any person who
received less than honorable discharge because of such violations.
Establishes an Amnesty Commission composed of five members
to grant general amnesty to individuals whose violation of the
above laws was in substantial part motivated by the individual's
opposition to, or protest against, the involvement of the United
States in Indochina; and who was not personally responsible for
any significant property damage or substantial personal injury
to others in the course of his violation of such law.
Stipulates that at least two members of such Commission
shall be female, and that at least two members shall be from
racial minorities.
Gives the Commission jurisdiction to hear and determine
applications from individuals entitled to automatic amnesty by
this Act and aggrieved by the refusal of the military board to
grant an honorable discharge to him. Makes provisions for
applications for amnesty, and for judicial review of a decision
by the Commission.
Provides that, upon petition to any U.S. district court,
the United States citizenship of any former citizen solely or
partly because of disapproval of the involvement of the United
States in Indochina shall be fully and unconditionally restored.
Gives the district courts of the United States jurisdiction
without regard to the amount in controversy to hear actions
brought to redress the deprivation of rights that are restored
by this act, and to grant such legal and equitable relief as may
be appropriate.
Authorizes such appropriations as are necessary to carry
out the provisions of this Act. Provides that if any provision
or application of this Act is held invalid, the remainder of the
Act shall not be affected thereby.
is
FORD
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138
H.R. 6338. Mr. Obey: 4/23/75. Government Operations.
Clemency Board Reorganization Act - States that the
Presidential Clemency Board shall be composed of nine members
to be appointed by the President, one of whom shall be designated
by the President to serve as Chairman.
Provides that all jurisdiction, responsibility, or function
with respect to any draft evader or military deserter is trans-
ferred from the Department of Defense to the Presidential
Clemency Board. Authorizes the Board to recommend alternate
service of up to 2 years for draft evaders and military deserters.
Authorizes the reacquisition of United States citizenship
by appearance before a United States district court judge,
renouncement of citizenship acquired from another country, and
pledging allegiance to the United States.
Provides that veterans benefits may be conferred in the
discretion of the Veterans' Administration or Department of
Defense after issuance of a clemency discharge under this Act.
H.R. 9596. Mr. Kastenmeier: 9/15/75. Judiciary.
Badillo, Chisholm, Conyers, Drinan, Edwards (Calif.),
Fraser, Leggett, Mikva, Mitchell (Md.), Moakley,
Rees, Scheuer, Sieberling, Stark, Young (Ga.).
Vietnam Era Reconciliation Act - Provides immunity from
prosecution and punishment to those persons who, because of
disapproval of the military involvement of the United States in
Indochina during the period covering August 4, 1964, and ending
March 28, 1975, resisted the draft, were absent from the Armed
Forces without leave, or disobeyed an order, which order if obeyed
could reasonably have led to the death of another human being.
Directs that persons convicted of such offenses and who are
serving, or have served, a prison sentence or other punishment
shall be released from prison and from other punishment, and any
remaining portion or terms of punishment shall be deemed to have
been served. Provides that a person who is serving a sentence
as a result of the above offenses and is also serving a sentence
for an offense not covered by this Act shall be released only
from that portion of his sentence specifically applied to offenses
covered by this Act.
Provides that persons serving a term of reconciliation ser-
vice, pursuant to Presidential Proclamation 8313, of September 16,
1974, may be released from such service and the remaining portion
may be waived.
139
Directs that legal proceedings instituted as a result of
offenses covered by this Act be dismissed. Requires all records
and information relating thereto to be expunged from all Govern-
ment department and agency files, records and correspondence.
Provides that any person who is eligible for relief under
this Act shall be granted a certificate of resignation without
condition from the Armed Forces.
States that no person shall be denied any statutory or
constitutional right because of any crime for which relief is
granted by this Act.
Exempts from that provision of the Immigration and Nationality
Act which denies admission to the U.S. to any person who left the
country to avoid military service or any citizen of the U.S. who
makes a sworn statement to an appropriate official of the Immi-
gration and Naturalization Service to the effect that he
renounced citizenship because of disapproval of military involve-
ment of the United States in Indochina.
Authorizes the appropriation of such sums as may be necessary
to carry out the provisions of this Act.
FORD is LIONY,
140
3. AMNESTY BILL PROPOSED BY THE
NATIONAL COUNCIL FOR UNIVERSAL AND
UNCONDITIONAL AMNESTY
Summary by the NCUUA*
1. Automatic amnesty shall be granted to:
all draft violators.
all violators of 31 specified Articles of the
Uniform Code of Military Justice, involving vio-
lations which could be antiwar in motive and do not
involve civilian crimes.
all violators of 8 specified sections of title 18,
U.S. Code, involving violations affecting the national
defense.
2. Amnesty for other violations of law: Any person convicted or
charged with violating any Federal, military, state, or local
law other than those specified as automatic can apply to a
Commission for Amnesty. These persons shall present a state-
ment that the violations for which they seek amnesty were a
result of their resistance or opposition to the draft, the
military, or the involvement of the U.S. in Indochina. If
the government does not challenge this statement within 90
days, the person shall be granted amnesty. If the govern-
ment does challenge it, the Commission shall decide whether
or not the person receives amnesty. In order to deny amnesty
the Commission must be able to clearly show that the violation
was unrelated to antiwar activity. If the Commission does
deny amnesty the person may appeal the decision to a U.S.
district court.
3. Effect of amnesty: The amnesty granted shall
restore all rights lost, suspended, or otherwise
limited.
grant immunity from further or future prosecution.
expunge all government records as far as possible.
vacate any conviction, declaring it null and void.
nullify all other legal consequences.
*
The NCUUA bill is being circulated in the Congress for con-
sideration.
141
4. Military discharges: All persons given an other than honor-
able discharge before the date of enactment of the bill are
automatically granted an uncoded honorable discharge. All
persons discharged from the armed forces after the date of
the bill are to be given a single type discharge "certificate
of service," without qualifying the service in any way and
giving no indication for reason of discharge.
5. Citizenship: Persons who have lost or renounced U.S.
citizenship shall have it unconditionally restored by stating
to the Commission that they lost citizenship because of resis-
tance or opposition to the draft, the military, or the involve-
ment of the U.S. in Indochina. By a similar statement,
persons who wish to retain foreign citizenship but wish to
visit in the U.S. shall be exempted from the exclusion
provisions of the immigration laws.
FORD & LIBRAR
142
4. STATEMENT OF PROFESSOR JOSEPH SAX
ON THE PROBLEM OF AMNESTY*
Ann Arbor, Mich.
May 6, 1974
Senator Philip Hart
Senate Office Building
Washington, D.C.
You have asked me to comment on three issues that arise
whenever proposals for amnesty legislation relating to the Viet-
nam War are put forward: (1) the question of alternative service;
(2) the proper scope and coverage of such legislation; and (3)
the desirability of case-by-case evaluation, rather than general
determination by legislation of the status of various persons.
I shall take them up in that order.
1. Alternative Service
The arguments generally made for imposing, at this
stage a requirement of alternative service, are three. It can
have a deterent effect for the future, setting a precedent that
refusal to serve in, or desertion from, the armed forced, should
not be lightly undertaken, and cannot be costless; second, it
may have a punitive effect, making the point that service was a
legal obligation that, even for good reasons, should not be given
a status of acceptability; and third, that even conscientious
objectors are required to do alternative service, and draft
resisters and deserters should not be put in a better position
than COs.
I do not find any of these claims persuasive. As to
deterrence for the future, it is a virtually uniformly held
position among experts on the criminal law that for deterrence
to work it must be swift and sure; that is, the sanction must be
imposed quickly and the nature of the sanction must be clear and
certain to the person whose behavior is sought to be affected in
future (and to others who may be so tempted). It is also undoubted
that deterrence works best for conduct that is rationally calcu-
lating, and works least when the conduct is the product of
passionate or deeply held feelings. Thus, the most deterrable
*
Congressional Record, March 11, 1975.
143
conduct is, for example, income tax evasion, and the least
deterrable is conduct like the murder of a spouse in the heat
of anger.
Taking these three fundamental principles of
deterrence, it is clear that the conduct with which amnesty
legislation proposes to deal falls very far on the non-deterrable
side. By their very nature, amnesties usually come considerably
after the event, when involvement in the fighting has ended, and
passions have cooled on all sides. In addition, government's
response to claims for amnesty are inevitably tailored to the
particular event involved and cannot be expected to be uniform
from one war to another.
Our own history makes this later point quite clear.
American experience with amnesty, from the time of George
Washington, has varied widely depending on the moral and political
goals sought to be achieved. An amnesty may be needed to bring
political opponents back "into the fold," as was the case in the
War Between the States. It may be desired to cope with laws that
have been unmanageable, as with the Whiskey Rebellion; it may be
undertaken during war-time, in a limited way, to deal with
inability to recruit and hold soldiers, as happened in our early
history. It may be wanted only to deal with retrospective efforts
to untangle mistakes and blunders in the conscription process,
as was the case with the Truman amnesty board.
And, of course, one must expect congressional attitudes
toward amnesty to reflect feelings about the particular war in
question. For example, it is not surprising that no general
amnesty was declared following World War II, considering the over-
whelmingly favorable attitudes in the nation to that war.
Similarly, there is no reason to know whether, should the problem
arise in the future, we would be dealing with a war like the
Vietnam War, the Second World War or, the War Between the States,
each of which might quite properly call for different attitudes
toward those who opposed the war, and each of which present very
different problems in the broad political aims and effects of
an amnesty, depending, for example, on the degree to which the
War has divided significant groups of citizens.
I can say from personal experience, having talked with
a great many young men who were considering draft refusal, and
with many who had refused or deserted (in Stockholm and Paris,
in 1967), that the question of the "precedent law" of amnesty in
the United States was never in any discernible degree a factor
in their decisions. Nor, indeed, if it had been, could I (or
anyone) have told them what the appropriate precedent was or
would be. Should one have told them to read up on the Whiskey
Rebellion, or on the War Between the States, or on the situation in
France following the Algerian War?
&
FORD
HRALD
144
One might say that if the United States set a precedent
now, and determined to follow it, we would have a clear rule to
which future potential draft refusers might look. But I think it
fair to say that no such precedent could be binding, for no
Congress can bind the future, nor would it want to in such a
complex situation. To get a perspective on the problem, consider
how a Congress sitting in 1840 could have set a precedent that
it would have been willing unyieldingly to follow in 1868 or
1872.
Before leaving this matter, let me reemphasize that
my own experience with draft resisters and deserters is unambigu-
ous in indicating that the overwhelming numbers were people whose
conduct was motivated by very deeply held feelings as to whom
their legal situation was not a consideration. Indeed, I am
certain that those persons who considered draft resistance, but
who were conscious of their legal status (and there were a number
of them who passed through my office), ultimately resolved the
problem by going into the service. That is to say, without regard
to amnesty, there were a number of people who weighed the legal
problems of obtaining CO status, of possibly failing to obtain it,
of having to undergo immediate prosecution, of the attitudes of
family and friends, and all the immediate difficulties of getting
entangled with the conscription laws. In short, the weeding out
or deterrence process is governed by the immediate consequences,
not by long term consideration of congressional attitudes.
Those with very strong feelings, strong enough to be unaffected
by the immediate situation, certainly were not affected by the
prospect of how the nation would deal with them some years hence.
As a final word on this matter of strong feelings,
and the irrelevance of amnesty laws to affect them, I want to
emphasize that one need not sympathize with, or agree with, the
nature of those feelings, to be certain that deterrence through
the medium of amnesty laws will not be effective. Thus, whether
one thinks that some draft resisters responded to deeply held
moral feelings, or to simple but powerful cowardice, you can be
certain that in either case a reasoned consideration of future
congressional legislation would not moderate their feelings.
If, indeed, as may be the case with some who oppose amnesty,
they feel many draft resisters were merely afraid to die, that
is the motion least likely to be affected by what the Congress
does half a dozen years after the event.
Of course, one might take the most extreme position.
Is it possible that refusal to enact an amnesty law, or to enact
an amnesty with alternative sercice, might affect in the future
the conduct of some people, however few? Is there anyone who
might be affected? Doubtless the answer to the question put thus
is yes. It is possible, but everything we know about deterrence
145
suggests that no significant number of people would be
affected, and that to act on this hypothetical possibility is
to push a problem of practical judgment to what has been called
a "dryly logical extreme."
Let me now turn away from the deterrence question to
the question of alternative service in general. If alternative
service is not a useful idea for deterrence purposes, might it
serve some other useful purpose? Here we come to a tempting
misconception. Why should young men who did not serve at their
country's call in Vietnam not be willing to give several years
of their lives to their country's service in civilian and useful
work?
This formula turns the proper question around. We
are a nation that does not require each young person to be con-
scripted for a few years of their lives to serve the state in
ordinary times. Indeed, we pride ourselves on the idea that this
absence of general compulsion is an important part of our status
as a free society of individuals, whose service in the community
should be voluntary, if it is to be undertaken. There are other
societies that pack up their doctors and engineers and send them
off to serve the state wherever the state decides they are needed.
But America has always taken the view that "the individual is not
the mere creature of the state," and that public service should
arise out of a sense of duty that is within the individual, not
as a governmentally imposed legal obligation.
I feel very strongly that we should keep to this
position, and I'm sure that the vast majority of members of Con-
gress feel the same. It is in the context of this tradition that
the requirement of alternative service should be viewed.
Since we do not generally conscript people to serve
the state, such conscription should be justified by very special
circumstances. We have conscripted, reluctantly, in time of war
under the assumption that the very existence of the society was
threatened. A requirement of alternative service today would not
serve that purpose. Nor, based on what I have indicated above,
is such a requirement likely to be effective in making conscrip-
tion in a potential future war possible; that is, the deterrent
argument will not hold.
On what basis, then, is imposed alternative service
(so at odds with American traditions) justified? It is true that
CO s: bear such a responsibility in time of military conscription,
but that is based presumably on the same need to preserve the
society in wartime as is military conscription (a need that does
not now exist), and it may be justified as a means of imposing
an immediate deterrent (the only kind that works) during a time
when men are being conscripted to fight in a war. I myself would
FORD
146
not oppose the idea of alternative service being imposed during
an ongoing war, and being done contemporaneously with it, for
the reasons I stated above as to the immediacy of deterrent
devices and the exceptional justification during wartime of
departing from our usual traditions. But that should be the
limit of the exception, lest we fall into the habit of treating
all young people as "duty bound to serve the state," a most
un-American view.
Finally, then, there is only the punitive argument.
To impose alternative service now is to impose a penalty for
refusal to serve or for desertion. As to this, I can only say
that penal measures are the very opposite of everything that the
concept of amnesty means. Amnesty is a forgetting, a putting
aside of old claims of obligation in favor of reconciliation.
If alternative service is imposed as a penalty, it will be under-
stood as a penalty, and it will operate precisely in opposition
to the fundamental purpose of an amnesty. So long as we are
considering amnesty we must act in the spirit of amnesty, and not
in the spirit of "penal servitude."
2. The Proper Scope and Coverage
of Amnesty
Here the problem is twofold. The first is whether it
makes sense to distinguish between draft resisters and deserters
from the armed services. And second, how one is to deal with
conduct carried on in the name of opposition to the war, but that
was itself unwarranted (such as desertion under fire, or destruc-
tion of the lives and property of innocent people in the name of
protest). Let me deal with each in turn.
From my experience, I am persuaded that the usual
distinction between draft resistance and desertion is the product
of a factual misunderstanding. Many people think of desertion as
a more serious matter than refusal to undergo induction in the
first instance.
My experience makes quite clear that generally the
difference is only the product of experience and background of the
people involved. Most draft resisters come out of the middle
class, college student, urban groups, who were aware of the
details of the Vietnam war protest prior to the time they were
called to service, and were rather knowledgeable about the ins-
and-outs of the draft system. They thus acted at a very early
stage; they often knew how draft boards would feel with them, and
they may have had easy access to another country or have had
friends who fled to Canada or elsewhere.
147
Conversely, of the deserters I have interviewed,
the great bulk were rural or from small towns, were less edu-
cated and knew very little about Vietnam when they entered the
service. Indeed, they were in many instances volunteers. Their
information, and reaction to the War, thus by the mere chance
of their background, usually did not come until after they had
been inducted. And thus they were only in a position to respond
(if they were persuaded to respond negatively to the War) by
deserting from the armed services.
Thus, in my opinion to make any general distinction
between deserters and resisters would be to penalize those who,
in general, came from more limited educational backgrounds, or
who came from more rural areas of the country.
As to the general scope of amnesty legislation, I
would urge that it seek to define amnesty generally, embracing
both resisters and deserters. And I would urge that it embrace
only service in the armed forces. I would impose only one
exception, for which I would deny amnesty, and that is for
desertion under fire. That is conduct at a point of imminency
of danger to others at which it seems to me too late to undertake
a decision not to serve (just as we impose some sort of "clear
and present danger" test of imminency on free speech).
Moreover, I do not think the Congress should at this
time try to define a general amnesty for all conduct that was
carried on in the name of opposition to the War, even though that
conduct may have been otherwise criminal. Some such conduct
should not be excused even though it may have been carried out
under a high sense of moral duty; other such conduct would seem
excusable, but here the range of activity is too broad to be
subject to a general legislative act by the Congress. I think
the first and appropriate step is to grant an unconditional
amnesty for all those who refused to be inducted into the armed
services, or who deserted from the armed services, out of
opposition to the Vietnam War. I would thus at this time limit
the legislation to refusal to put ones-self to service in the
armed forces.
3. Case by Case Evaluation
The practical problem raised here, even as to service
in the armed forces, is that not all deserters and draft resisters
acted out of principled opposition to the Vietnam War. At this
point, the Congress is faced with a practical problem. To try to
untangle the motives of many thousands of persons at this time is
a monumental administrative task, and one as to which evidence is
hard to develop.
&
FORD
ALD
148
The example of the Truman amnesty board is not likely
to be very helpful. As you will see from the hearings of Senator
Kennedy's Subcommittee of Feb-Mar., 1972, that board undertook a
very limited task, dealing essentially only with cases of adminis-
trative mistakes, and with a quite modest number of cases.
We are faced here with the conflicts between a desire
to do explicit justice to each particular individual, and the
problem of creating an administrative monster that will sink in a
mass of endless detail, trying to sort out facts that are simply
unavailable.
I would suggest two possibilities. One is to draft
a general amnesty with inclusive dates, covering all those who
might have acted in relation to the War in Vietnam. This would,
of course, sweep very broadly, but I would note in this regard
that it is the sort of broad approach taken by the French follow-
ing the war in Algeria (see my testimony before the Kennedy
Subcommittee of March 1, 1972, p. 288). If this seems too broad,
it might be possible to impose upon the Department of Defense
the obligation, within a certain time period, to object to the
amnesty for any certain individuals thus covered by a broad
statute, putting upon them the obligation to produce evidence
why an amnesty would be inappropriate. The legislation could
require them to show that a given act of desertion or refusal to
serve was not related in any way to principled objection to the
War in Vietnam or involved specific wrongdoing that should not be
excused. Doubtless, this would be a hard burden to carry, but
if there are specific cases where the DOD is persuaded that an
amnesty would be improper, and they have evidence to support that
view, they might be permitted to bring that evidence forward.
Such an approach, I think, would vastly reduce the
potential administrative burden of taking on every case at the
outset, and yet would provide a means to deal with cases where
a showing could be made that an amnesty would be inappropriate.
To hear such cases, the legislation could set up a modest size
hearing board of disinterested civilians with a small investigative
staff.
I hope these comments are helpful.
With best regards,
JOSEPH L. SAX,
Professor of Law.
149
5. THE HISTORY OF AMNESTY IN AMERICA
Excerpts from a Statement by
Professor Henry Steele Commager*
Traditionally, it is the executive that has taken the
initiative in granting amnesty, but recent executives have dis-
played less interest in amnesty than was customary in the
nineteenth century; thus there was no amnesty after the Korean
war and has been none so far in this war. It is therefore
reassuring to see the Congress take the initiative in this
matter so fraught with importance to the harmony of society
and to the sense of justice.
As I think desertion and
draft evasion are inextricably part of the same problem, what
I have to say this morning will apply to both categories of
offenders.
We do not have, and in the circumstances we cannot
have, accurate statistics of desertion and draft evasion for the
past seven years. It seems probable that desertion has been as
high in the war in Southeast Asia as in any war in which we have
ever been involved, though as during the Civil War draftees were
allowed to buy substitutes, the comparison is bound to be faulty.
In 1970 the desertion rate in Vietnam was 52 per thousand ---
twice the rate of the Korean War; up to September 1971 it was
73.5 per thousand; many of these deserters were subsequently
returned to military control. As for draft evaders, estimates
run from fifty to one hundred thousand, but as many potential
draftees took cover before being formally inducted, these
figures are almost meaningless. This high incidence of
desertion and draft evasion is not, I submit, a commentary on
the American character, but a commentary on the war; after all,
there was neither large-scale desertion nor draft evasion in
World War II, and the national character does not change in a
single generation. What is by now inescapably clear is that the
Vietnam war is regarded by substantial elements of our population --
particularly the young -- as unnecessary in inception, immoral in
conduct, and futile in objective; what is clear, too, is that
more than any war since that of 1861-65 it has caused deep
division and bitter dissension in our society. The task which
*
The statement was made before the Senate Subcommittee on
Administrative Practice and Procedure, Hearings on Amnesty,
March 1, 1972. Mr. Commager is Professor of History, Amherst
College, Amherst, Mass.
&
FORD
SERALD
150
confronts us, then, is not dissimilar to that which confronted
Presidents Lincoln and Johnson. It is not merely that of ending
the conflict in Asia, but of ending the conflict at home, of
healing the wounds of war in our society, and of restoring --
it is Jefferson speaking -- "restoring to social intercourse
that harmony and affection without which liberty and even life
itself are but dreary things."
The term, and the concept of, amnesty is very old.
The word itself is Greek -- Amnestia -- and means forgetfulness,
oblivion, the erasing from memory.' I cite this not out of ped-
antry but because it illuminates the problem [of] whether there
can in fact be conditional amnesty. Can there be partial
oblivion, can there be a qualified erasing from the memory? Can
it be supposed that draft evaders who [are] out and presumably
expiating their sins for a period up to three years will during
these years of forced service forget or erase from their memory
this whole unhappy chapter of their history and ours? Can it be
supposed that after the guns have fallen silent and the bombs
have ceased to rain down on the stricken lands of Vietnam and
Laos, deserters who are tried and punished for their military
offenses will be able to put the war out of their minds? And
indeed, can it be supposed that while these unfortunates are
doing penance in various ways, the nation will be able to forget,
or to consign to oblivion, the deep moral differences which
animated those who fled their country or their regiments rather
than violate their consciences? If it is forgetfulness and
oblivion we want, or even reconciliation and harmony, we shall
not receive it by this labyrinthine route.
The argument for amnesty is threefold:
historical, practical, and ethical. It is to the interesting
question of experience, the illuminating question of expedience,
and the elevated question of moral obligation that we should
address ourselves.
The American Revolution was a civil war.
Those who supported the Crown -- John Adams estimated them at
one third the total population -- were exposed to the obloquy and
persecution that attends most civil wars
During and after
the war some eighty thousand Loyalists fled the country, mostly
to Canada. A few returned, but public opinion -- and legislation --
was so implacably hostile to Loyalists that the vast majority pre-
ferred exile. Thus for want of magnanimity, the new nation --
a nation which needed all the resources it could obtain -- lost
a substantial and valuable segment of its population
and
earned an international reputation for harshness and rancor.
Desertion was, as we all know, endemic in Washington's army --
*
There is the highest judicial sanction for this definition:
"Amnesty is the abolition and forgetfulness of the offense;
pardon is forgiveness," said the Supreme Court, Knote V. U.S.,
95 U.S. 149.
151
which all but melted away at Valley Forge -- but after the war
was over no effort was made to punish wartime deserters. As
President, Washington established the precedent of generosity
for those guilty (or allegedly guilty) of insurrection: he
proclaimed amnesty for participants of the Whiskey Rebellion,
observing, in words that are relevant for today, "Though I shall
always think it a sacred duty to exercise with firmness and energy
the constitutional powers with which I am vested, yet my personal
feeling is to mingle in the operations of the Government every
degree of moderation and tenderness which justice, dignity and
safety may permit." (I Richardson, 266.) John Adams took the
same attitude towards the so-called Fries Rebellion of 1799,
granting "a full, free and absolute pardon to all and every
person concerned in said insurrection." Jefferson in 1807
pardoned all deserters from the army of the United States who
returned to their units within four months; Madison issued no
less than three proclamations of the same nature, covering
deserters in the War of 1812. President Jackson's Amnesty of
12 June 1803 had an interesting twist to it; he pardoned all
deserters from the army provided they would never again serve in
the armed forces of the United States!
It is the Civil War which provides us with the best
analogies and, I think, the best models for our own time.
Desertion from both Union and Confederate armies ran to roughly
10 percent -- rather above than below that figure. Draft
evasion was widespread and flagrant, complicated in the North
by what was called "bounty-jumping", that is, multiple enlist-
ments and desertions designed to collect bounties. While
neither draft dodgers nor deserters constituted a danger in the
North, they did in the South; it was said -- on what authority
is not clear -- that there were more deserters and draft evaders
in the mountains of the Carolinas, in 1864, than there were
soldiers in Lee's army. Appomattox put a period to the problem
in the South; no action was taken against either deserters or
draft evaders after the end of the war in the North.
What is illuminating, however, is the attitude of
Presidents Lincoln and Johnson towards southerners who had
engaged in rebellion and were, technically, guilty of treason.
. Lincoln's position was clear and consistent. During the
war itself he issued a series of amnesty proclamations designed
to bring Confederates back into allegiance and to get government
in operation in the South. He had been unwilling to "let the
erring sisters go in peace" --- as Horace Greeley recommended --
but he was ready to let them return in peace. Congressional
radicals wanted to punish the South for its treason by excluding
southern states from full membership in the Union: in the end,
as we know, they succeeded at least in part. Lincoln would have
none of this; indeed, he regarded the question of legal status
of the Confederate states as "a pernicious abstraction."
&
FORD
GERALD
152
"Finding themselves safely at home," he said -- what might be
said of our draft evaders, who after all did not bear arms against
the United States -- "it would be utterly immaterial whether they
had ever been abroad. And how fascinating Gideon Welles's
recollection of that last Cabinet meeting which discussed the
question of capturing Confederate leaders and bringing them to
trial. "I hope there will be no persecutions," said Lincoln,
"no bloody work after the war is over. No one need expect me to
take any part in hanging or killing those men, even the worst of
them
enough lives have been sacrified."
Who can doubt, now, that Lincoln's policy of magnanimity
was wiser and more farsighted than the radical policy of punish-
ment? Even the Radicals were not vindicative by modern standards.
How gratifying it is to recall that the United States put down
the greatest rebellion of the nineteenth century without imposing
on the guilty any formal punishment. Not one leader of the defeated
rebels was executed; not one was brought to trial for treason.
There were no mass arrests, no punishment even of those officers
of the United States Army and Navy who had taken service in the
Confederacy. No soldier who wore the gray was required to
expiate his treason, or his mistake, by doing special service,
none was deprived of his property -- except property in slaves --
or forced into exile by governmental policy. What other great
nation, challenged by rebellion, can show so proud a record?
We can dispose with lamentable brevity of the record
in the present century, for it is a brief one. There was no
general amnesty for draft evaders or deserters after World War I.
Indeed, those guilty of violating the Espionage and Sedition
Acts -- among them Eugene Debs -- languished in jail while
President Wilson was in the White House
No major war in
which we have engaged saw fewer desertions or draft evasions than
World War II -- a war which almost all Americans thought
necessary and just. Yet when Vice-President Truman came to the
presidency, in 1945, there were some fifteen thousand draft
evaders and other offenders against the military law in federal
custody. Truman appointed a committee, headed by Justice Owen
Roberts, to advise him on what action he should take. The
committee advised against a general amnesty and recommended
individual consideration of each case. This advice was
accepted; only one-tenth of those in jail were actually released,
however -- not a very gratifying result.
More important than historical precedents, however
illuminating, are considerations of wisdom and of morality. Here
we come, I think, to the heart of the matter. A nation does not
adopt important policies -- policies affecting the lives of
hundreds of thousands of its young people, and affecting the
whole fabric of the social and the moral order -- out of petu-
lance or vindictiveness. It bases its judgment rather on the
interests of the Commonwealth. Nor do statesmen indulge in what
153
Lincoln called "pernicious abstractions" -- abstractions about
whether magnanimity to some will somehow be unfair to others.
After all, who knows what is ultimately just, or what will
ultimately satisfy the complex passions of a vast and hetero-
geneous society? We should make our decisions on the question --
complex enough, to be sure -- of what appear to be the long-
range interests of the nation.
When we consider the problem of amnesty in this light,
there are a number of considerations which clamor for our
attention:
1. There is the consideration that those who
deserted either the draft or the army were not young men indulging
themselves in reckless irresponsibility, or confessing cowardice.
They were, and are -- we must concede this in the face of a re-
sistance so massive -- acting quite sincerely on conscience and
principle. After all, this is the position that wise and
objective judges of the Supreme Court accepted in both the notable
conscientious objector cases -- U.S. V. Seeger and Welsh V. U.S.
2. Nor can we overlook another consideration, that in
many ways the deserters and draft avoiders of today are like the
"premature antifascists" of the 1930s, who suffered persecution
during the Joseph McCarthy era because they had fought Fascism
abroad before the country caught up with them. May we not say
that the majority of those who have deserted or gone underground
merely took "prematurely" the position which the majority of
Americans now take
3. There is a third consideration which affects a
substantial number of those it is now designed to deal with by
amnesty -- a group who may be designated premature moral
objectors. For as all of you know, the legal interpretation of
what constitutes acceptable objection on grounds of conscience
has changed. That change began as early as 1965, in the notable
case of U.S. V. Seeger (380 U.S. 163), which extended exemption
from the draft to those who embraced a "belief in and devotion
to goodness and virtue for their own sakes, and a religious faith
in a purely ethical creed." Speaking through Mr. Justice Clark,
the Court held that Seeger was entitled to exemption "because
he decried the tremendous spiritual price man must pay for his
willingness to destroy human life." In 1965 the Court still
required, as a legal basis for exemption, some belief, however
vague or remote, in a Supreme Being. But by 1970 the Court was
prepared to accept moral and ethical scruples against the war as
meeting the requirements which the Congress had set for exemption
on account of conscience. That requirement, wrote Justice Black,
"exempts from military service all those whose conscience,
spurred by deeply held moral, ethical or religious beliefs,
would give them no rest or peace if they allowed themselves to
become part of an instrument of war." (398 U.S. 333, at 334.
Italics added.)
GERALD R. FORD DE
154
Clearly if those whose opposition to war is based
not on formal religious beliefs but on moral and ethical
principles are now exempted from service, then those with the
same beliefs who were denied C.O. exemption in the past have an
almost irresistible claim on us for pardon or amnesty.
There are, to be sure, some serious objections to
be met
objections based on considerations of public policy.
It is alleged, for example, that a sweeping amnesty would somehow
lower the morale of our fighting forces
there seems to be
no objective evidence to support this argument. It does not
appear that amnesty worked this way in the past, in those
relatively few instances when it was applied while the war was
still going on.
There is a further point here. 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 the Vietnam, it will
once again be in for trouble? After all, governments, like
individuals, must learn by their mistakes, and though the process
of teaching government not to make mistakes is often hard on
those who undertake it, it is also often very useful.
If
the war in Southeast Asia is a mistake from which we are even
now extricating ourselves, is it just that we should punish those
who -- at whatever cost -- helped dramatize that mistake?
For almost a decade now our nation has been sorely
afflicted. The material wounds are not as grievous as those
inflicted by the Civil War -- not for Americans anyway -- but
the psychological and moral wounds are deeper, and more per-
vasive. Turn and twist it as we may, we come back always to the
root cause of our malaise, the war. If we are to restore harmony
to our society and unity to our nation we should put aside all
vindictiveness, all inclination for punishment, all attempts to
cast a balance of patriotism or of sacrifice -- a task for
which no mortal is competent -- as unworthy a great nation.
Let us recall, rather, Lincoln's admonition to judge not that
we be notjudged, and with malice towards none, with charity for
all, strive on to bind up the nation's wounds.
155
6. AMNESTIES IN U.S. HISTORY*
List Prepared by
Professor Joseph Sax
Date, issued by, persons affected and nature of action,
and time lapse from offense to proclamation (in months) :
July 10, 1795, Washington, Whiskey Insurrectionists
(several hundred). General pardon to all who agreed to there-
after obey the law, 13.
May 21, 1800, Adams, Pennsylvania Insurrectionists.
Prosecution of participants ended. Pardon not extended to those
indicted or convicted, 14.
Oct. 15, 1807, Jefferson, Deserters given full pardon
if they surrendered within 4 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, Pirates who fought in War of
1812 pardoned of all previous acts of piracy for which any suits,
indictments or prosecutions were initiated, 60 from first
offense; 5 from final offense.
June 12, 1830, Jackson (War Dept.), 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 Dept.), 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.
GERALD R. FORD
156
Dec. 8, 1863, Lincoln, Full pardon to all implicated
in or participating in the "existing rebellion" with exceptions
and subject to oath, 24.
Feb. 26, 1864, Lincoln (War Dept.), 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 for-
feiture of citizenships. President to pardon all who return
within 60 days.
March 11, 1865, Lincoln, Deserters who returned to
post in 60 days, as required by Congress.
May 29, 1865, Johnson, Certain rebels of Confederate
States (qualified), 36 from first offense.
July 3, 1866, Johnson (War Dept.), Deserters returned
to duty without punishment except forfeiture of pay.
Jan. 21, 1867, Congress, Section 13 of Confiscation Act
(authority 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, 84 from first offense.
Dec. 25, 1868, Johnson, All rebels of Confederate
States (universal and unconditional), 84 from first offense.
May 23, 1872, Congress, General Amnesty Law reenfran-
chised many thousands of former rebels.
May 24, 1884, Congress, Lifted restrictions on former
rebels to allow jury duty and civil office.
Jan. 4, 1893, Harrison, Mormons -- liability for poly-
gamy amnestied, 132 from first offense; 24 from last offense.
Sept. 25, 1894, Cleveland, Mormons -- in accord with
above.
March 1896, Congress, Lifted restrictions on former
rebels to allow appointment to military commissions.
157
June 8, 1989, Congress, Universal Amnesty Act removed
all disabilities against all former rebels.
June 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."
June 14, 1917, Wilson, 5,000 persons under suspended
sentence because of change in law (nor war-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 W.W. I
armistice, up to 72.
Dec. 23, 1933, F. Roosevelt, 1,500 convicted of
having violated espionage or draft laws (W.W. I) who had com-
pleted their sentences, up to 192.
Dec. 24, 1945, Truman, Several thousand ex-convicts
who had served in W.W. II for at least one year. (Proclamation
2676, Federal Register, P. 15409.)
Dec. 23, 1947, Truman, 1,523 individual pardons for
draft evasion in W.W. II, based on recommendations of President's
Amnesty Board.
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 Aug. 15, 1945 and June 25, 1950.
FORD
GERALD
112
We feel that amnesty is not only a just solution
but, as has been pointed out, a practical solution. The
problem is not going to go away. The resisters are in
limbo year after year, and we think it is time the terrible
victimization of this whole Vietnam era be stopped.