"political" which pertains to the policy of government or to any group of persons holding similar beliefs who strive to gain control of government or general adoption of their own programs. At the same time there is an attempt to restrict the term to orderly processes and rule out revolution.113 A recent case114 holds that citizen protest marches are "political" under the Hatch Act 115 and Civil Service regulations.116

But these definitions become wholly inadequate when we look at the deportation and extradition statutes and cases, the only place the federal law seems to define "political crimes" explicitly. The Refugee Relief Act of 1953 117 and the Displaced Persons Act of 1948 118 permit stay of deportation and acquisition of immigrant status if return to the country of former residence would cause political persecution or fear of persecution. This turns out to be persecu tion of account of race, religion, or political beliefs or activity.119 The extradition statutes, treaties and cases are even more helpful. "Political offenses" are not cause for extradition, whether there has been a conviction or a mere charge, and this is so because the United States should not permit its legal process to be used by a foreign government for reprisals against its political opponents.120 To defeat extradition for murder or other violent crimes, it is necessary for the accused to prove that he was part of a revolutionary movement, or that the occurrence was part of a political uprising or opposition.121 Giving orders to kill during a war (and presumably refusing orders to kill or participate in war acts) is a political crime, 122 as is treason.123 There is some indication that such acts as going to another country or claiming foreign citi. zenship to avoid required military service are political.124

But it is the historical examples of the use of amnesty that seem determinative. Amnesty has been used to erase treason, insurrection, attempted political overthrow, tax refusal, civil and racial strife, draft avoidance, army desertion, disloyalty, espionage, and even bigamy, polygamy, and murder,125 particularly when these arise from political-racial-religious claims of necessity.126

Every class of offense listed at the beginning of this article 127 and claimed by the participants to be political seems to be within one of the above definitions and examples. And the participants-Angela Davis, Panthers Seale and Newton, the Berrigans, the San Francisco Stockade "mutineers," the Catonville Nine, Chicago Seven, Milwaukee Fourteen, New Jersey Eight, the AWOL's and deserters, the draft evaders and avoiders, those arrested for trespass, riot, and other acts in Washington, D.C., mobilizations and sit-ins, even the Attica

113 General definitions: Moser v. United States, 341 U.S. 41 (1951); People v. Morgan, 90 I. 558 (1878); In re Stilwell Political Club, 17 N.Y. 2d 574, 215 N.E.2d 5121 109 N.Y.S.2d 331 (Sup. Ct. 1951). Excluding revolution: Pockman v. Leonard, 39 Cal. 2d 676, 249 P.2d 267 (1952), appeal dismissed, 345 U.S. 962 (1953); Lockheed Aircraft Corp. v. Superior Court, 28 Cal. 2d 481, 171 P.2d 21 (1946).

114 Holden v. Finch, 446 F.2d 1311 (D.C. Cir. 1971).

115 18 U.S.C. §§ 594-95, 598, 600-01, 604-05, 608-09, 611-12 (1970).

116 E.g., 5 C.F.R. § 315 (1971), 18 U.S.C. § 59 (1970).

11: 67 Stat. 400 (1953).

118 62 Stat. 1009 (1948), as amended, 64 Stat. 219 (1950).

119 See 50 U.S.C. App. § 1971 (d); 8 U.S.C. §§ 1101, 1253 (h) (1970). Cheng Fu Sheng v. Barber, 269 F.2d 497 (9th Cir. 1959); Cheng Lee King v. Carnahan, 233 F.2d 893 (9th Cir. 1958); Application of Paktorovics, 156 F. Supp. 813 (S.D.N.Y. 1957), rev'd, 260 F.2d 610 (2d Cir. 1958); Ex parte Kurth, 28 F. Supp. 258 (S.D. Cal.), appeal dismissed, 106 F.2d 1003 (9th Cir. 1939). Court review of executive action is very narrow: Schieber v. United States Immig. & Nat. Serv., 427 F.2d 1019 (2d Cir. 1970); Hamad v. United States Immig. & Nat. Serv., 420 F.2d 645 (D.C. Cir. 1969); Sovich v. Esperdy, 319 F.2d 21 (2d Cir. 1963); Blazina v. Bouchard, 286 F. 2d 507 (3d Cir.), cert. denied, 366 U.S. 950 (1961); MacKay v. McAlexander, 268 F.2d 35 (9th Cir. 1959), cert. denied, 362 U.S. 961 (1960).

120 18 U.S.C. § 3184 (1970); e.g., In re Extradition of Gonzalez, 217 F. Supp. 717 (S.D.N.Y. 1963); Treaty with Venezuela on Extradition, Jan. 19, 21, 1922, 43 Stat. 1698, T.S. No. 675; Treaty with Dominican Republic on Extradition, June 19, 1909, 36 Stat. 2468, T.S. No. 550; Treaty with Switzerland on Extradition, May 14, 1900: 31 Stat. 1928, T.S. No. 354; Treaty with Mexico on Extradition, Feb. 22, 1899, 31 Stat 1818, T.S. No. 242. There are nearly 100 other like treaties.

121 Jimenez v. Aristeguieta, 311 F.2d 547 (5th Cir. 1982), cert. denied, 373 U.S. 914 (1963); In re Extradition of Gonzalez, 217 F. Supp. 717 (S.D.N.Y. 1963); Ramos r. Diaz, 179 F. Supp. 459 (S.D. Fla. 1959).

122 Karadzole v. Artukovic, 247 F.2d 198 (9th Cir. 1957), vacated, 355 U.S. 393 (1958).

123 Chandler v. United States, 171 F.2d 921 (1st Cir. 1948), cert. denied, 336 U.S. 918, reheading denied, 336 U.S. 947 (1949).

124

24 Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963); Moser v. United States, 341 U.S. 41 (1951).

125 See pages 518-24 supra.

126 See notes 117-124 supra. 127 See page 515, supra.

prison revolters-all claim to have engaged in law violations (if any) to press the government to get out of an erroneous or illegal war, change foreign policy, give up racial suppression, or end practices leading to disenfranchisement. It may be desirable to ask the question in another way: What criteria might be used to determine which "crimes" are "ordinary" (not to be amnestied) and which are "political" (to be amnestied)? It is submitted that the following are the more important considerations:

(1) Has the position for which the prisoner stood now become generally accepted in the community? 128

(2) Has the government activity against which protest was made, been ended? 129

(3) Was the action taken originally as an expression of religion, conscience, or other first amendment right? 130

(4) Were the conditions (prison, race police activity) such obvious failings of government that the citizenry ought to be encouraged to speak out? 131

(5) Does the policy of the government against which protest was made (e.g., the war) represent a relatively small political group imposing its will upon the citizenry without a clear mandate, thus lacking democratic sanction and bound to elicit protest? 132

(6) Was the original action nonviolent and therefore nearest to protection as free speech? 133

(7) Was the crime one generally condemned by all society as against the peace and good order of the people, with few or no political overtones? 134 (8) Was the so-called political position taken that of anarchy ? 135

(9) Even if the original crime for which a person is in jail was nonpolitical, has the matter of confinement turned into a political imprisonment or harassment? 136

(10) Can society expect no serious threat if it releases the prisoners? 137

It seems quite possible to this writer to formulate proper criteria along these lines, and to set up a board if necessary to sort out borderline cases. The bugaboo argument of "would you release all criminals?" has little relevance.

VII. CONCLUSION

As was pointed out earlier, never in United States history has the problem seemed so large and important. We now have a huge number of unamnestied and unpardoned political offenders-many of whom may be our finest young

125 For example, public support of official actions in Vietnam has markedly waned. In vored bombing North Vietnamese industrial plants and factories. Overall, 50 percent apearly March of 1966, a poll of the adult American population showed 61 percent faproved President Johnson's handling of the Vietnam situation, and 33 percent were opposed, according to the Gallup Political Index, Feb. 1966, No. 9, at 5-6. But in a poll taken between November 14 and 16, 1969, it appeared that 64 percent of the adult American population approved the way President Nixon was handling the Vietnam situation (Vietnamization and withdrawal of troops). Gallup Opinion Index, Dec. 1969, No. 54, at 2. On the campuses, the polls said that in January 1970, 69 percent of the students polled were in favor of reducing our military effort in Vietnam, while 20 percent favored increased military action. Gallup Opinion Index, Jan. 1970, No. 55 at 19. See note 142, infra.

129 Typical are amnesties after a war for draft avoiders, AWOL's, and like persons. See pages 529-24 supra.

130 See Freeman, A Remonstrance for Conscience, 106 U. PA. L. REV. 806 (1958). Prosecution tends to show a restrictive first amendment application under hysteria conditions.

131 This would cover demands for amnesty in prison uprisings, and racial issues of nearly every kind.

As a part of this it would be proper to consider what position Congress had itself expressed.

133 See the author's various articles on Civil Disobedience: Freeman, The Right of Protest and Civil Disobedience, 41 IND. L.J. 228 (1965); Freeman, Moral Preemption Part I: The Case for the Disobedient, 17 HAST. L.J. 425 (1966); Freeman, Civil Disobedi ence, Law and Democracy, 3 LAW TRANS. 13 (1966); Freeman, Civil Disobedience and the Law, 21 RUT. L. REV. 17 (1966). See also Keeton, The Morality of Civil Disobedience, 43 TEXAS L. REV. 507 (1965).

134 Murder, robbery, felonious assault, and like crimes are of this nature-even if the prisoner claims his repressed and societally produced background is responsible. On the othed hand, "normal" criminal statutes, such as trespass and disorderly conduct, can be used for criminal suppression.

135 It may be too much to ask the government to free a person constantly trying to overthrow all government.

138 There are those who feel that the Angela Davis, Soledad Brothers, Jackson, and Seale cases have become "politicized." TIME, Sept. 6, 1971, at 18.

137 This would certainly apply to most conscientious objector and Jehovah's Witness

cases.

people and potential leaders. The offenses are backed up all the way to World War I and II. Nowhere else in the world are political offenders treated as common criminals. Even in Greece and some of the most dictatorial countries, they are placed under house arrest or allowed to move to another country. In most noncommunist countries they are amnestied and allowed to try again for political power.138 We need immediately to erase this blot on American democracy. Even more we need to recruit these critics of society back into the political process of changing society, as most everyone recognizes society needs changing. At Attica, Commissioner of Corrections Oswald admitted that 28 of the 30 prisoner demands should be implemented.139 It may be small satisfaction to the Berrigans and other antiwar "criminals," but there is now general political agreement on the error of the Vietnam war. Rosa Park's feet and the busted head of many a demonstrator may hurt no less, but desegregation is becoming a reality. The nation has a profound interest in allowing reformists a radical means of shaking us from our lethargy. The more rapid the need for reform, the more radical must be the means of getting public attention and action.

140

Senator Edward Kennedy has introduced a bill as an alternative to further Selective Service extension which proposes an amnesty "study" for Congress.14 Senator Taft introduced an amnesty bill on December 14, 1971,141 and popular support for amnesty is strong. 142 This is a start, but it is not enough. Congress and the President should appoint a Joint Committee to study the whole problem of pardon and amnesty, and recommend immediate action to wipe out all “political offenses" and return all these citizens to where they are needed, in “One Nation . . . Indivisible, with Liberty and Justice for all." 143

10. JONES, DOUGLAS AND RAISH, DAVID, "AMERICAN DESERTERS AND
DRAFT EVADERS: EXILE, PUNISHMENT OR AMNESTY?"

[Reprinted From Harvard International Law Journal, vol. 13, p. 88, 1972]

INTRODUCTION

At this news conference of November 12, 1971, President Nixon was asked the following: 1

Mr. President, do you foresee granting amnesty to any of the young men who have fled the United States to avoid fighting in a war that they consider to be immoral?

The President's answer was, "No." Whatever the implications of this brief response, and whatever the motivations of these "young men," the phenomenon of large numbers of draft-age Americans, including American servicemen, fleeing to foreign countries has emerged as an issue of national concern. This

138 Big Minh was amnestied in South Vietnam. In September, 1970, even Franco of Spain amnestied hundreds of political prisoners.

139 Commissioner Oswald is reported to have acceded to all but two of the demands in the early stages of the insurgency. TIME, Sept. 27, 1971, at 22.

140 S. 483, 92d Cong., 1st Sess. (1971).

141 S. 3011, 92d Cong., 1st Sess. (1971).

142 See, e.g., NEWSWEEK, Jan. 17, 1972, at 19. A recent Gallup poll indicated in part that, when asked about amnesty conditioned on alternative service such as that presently required for conscientious objectors, 71 percent of those polled favored amnesty generally, while 22 percent were against it. and 7 percent had no opinion. Of the 71 percent in favor of amnesty, 63 percent favored the condition, while 7 percent were for amnesty without qualification; 1 percent said they were proamnesty, but uncertain about required service. The poll also found that 49 percent favored amnesty for Army Lieutenant William Calley, convicted in the My Lai affair, while 24 percent were opposed. Id. at 20.

143 Pledge of Allegiance. 36 U.S.C. § 172 (1970).

1 N. Y. Times, Nov. 12. 1971, at 10, col. 4.

2 It is not known precisely how many American deserters and draft evaders are presently living abroad. Estimates vary widely, e.g., N.Y. Times, Feb. 5, 1970, at S. col. 4 (6.000-60,000); Newsweek, Feb. 15, 1971, at 28 (50,000 70,000). A number of unoff cial sources cite a total of 50,000 in Canada alone. Canadian government figures have shown over 60,000 draft-age American males living in the country. S. F. Chronicle, Mar. 27, 1970. at 7, col. 5. The World Council of Churches estimates 50,000 deserters and draft evaders in Canada. N.Y. Times, Dec. 8, 1970, at 13, Col. 4. Canadian aid groups give estimates between 20,000 and 50,000. Letter from Bob Seeley, Central Comm. froin Conscientious Objectors, Philadelphia, Pa., to the Harvard International Law Journal, May 11, 1971. See also Comment, Draft Resisters in Exile: Prospects and Risks of Return, 7 Colum. J. Law and Soc. Prob. 1, n. 1 (1971), which estimated the number of exiles in Canada at 8,000-10,000.

concern has been evidenced in public forums,3 in numerous articles in newspapers and periodicals, and in activities at various levels of government.5 As the American combat presence in Indochina decreases, public concern about the phenomenon may be expected to provoke a more elaborate official response. It is the purpose of this Comment, therefore, to examine first, the methods by which deserters and draft evaders have gained entry into Canada (which harbors the largest number of fugitives), and Sweden (whose government has taken special steps to accommodate deserters); second, the means by which the United States might gain jurisdiction over deserters and evaders who have fled to these two countries; and third, the punishment which these fugitives face upon return, and the legal and policy considerations underlying an executive or congressional decision on amnesty.

The term "deserter" as used here applies to all American servicemen who have made unauthorized departures from their posts of duty and who have remained absent for over thirty days. The term "draft evader" as used here includes Americans who evade or refuse registration with the Selective Service System or service in the armed forces of the United States.

STATUS OF AMERICAN DRAFT EVADERS AND DESERTERS IN CANADA AND SWEDEN

American military deserters and draft evaders seeking refuge abroad have had to consider how their status affects (1) their ability to enter a foreign country and (2) their legal status vis-a-vis the United States while abroad. This second consideration breaks down into (a) whether the evader or deserter can be reached by formal extradition and (b) whether he is subject to deportation or other forms of removal to an area over which the United States exercises jurisdiction. These considerations will be discussed here as they apply to the recent experience of deserters and evaders attempting to settle in Canada and Sweden.

A. Immigration into Canada

Geographic proximity and cultural similarities have undoubtedly been as instrumental as any complex legal considerations in the movement of American draft deserters and evaders to Canada. There are no official Canadian or

* See notes 159, 160, 161 & 286 infra and accompanying text.

See, e.g., Fleming, America's Sad Young Exiles, Newsweek, Feb. 15, 1971, at 28; Richard, American Deserters in Stockholm, Interplay, Sept. 1970, at 28; Lang, A Reporter at Large, New Yorker, May 23, 1970, at 42; Bless, What Draft Resisters Face, S.F. Chronicle, Mar. 27, 1970, at 7 col. 5; N.Y. Times, Feb. 5, 1970, at 8 col. 4; May 11, 1970, at 13. col. 1; Nov. 5, 1970, at 5, col. 3.

See notes 162-65 & 167 infra and accompanying text.

and administratively classified as a deserter. Hearings Before the Subcomm. on the After 30 days of unauthorized absence, an absentee is "dropped from the unit rolls" Treatment of Deserters from the Military of the Sen. Comm. on the Armed Services, 90th Cong., 2nd Sess. 4 (1968). Compare this classification with the statutory definition, p. 107 infra. The Department of Defense maintains systematic records of the total number of deserters. As early as 1968, the Department reported that over 53,000 servfcemen were classified as deserters over a twelve month period. S. Rep. No. 93, 91st Cong.. 1st Sess. 24 (1969). This figure prompted a subcommittee of the Senate Armed Services Committee to conclude that "the total number of deserters and those who are unauthorized absentees is of such magnitude as to provide reason for serious and special concern by civilian and military officials of the Department of Defense." Id. at 32. The desertion problem has since intensified; during the first ten months of fiscal year 1971 the army alone reported 68.449 desertions, nearly double the army's 1969 figure. N.Y. Times, Aug. 15, 1971, § 4, at 4, col. 7. If the total number is indicative of the number of deserters abroad, there is reason to believe that the number abroad has been Increasing in recent years. In the two countries most populated with deserters, Canada and Sweden, it is thought that there are about 1100 deserters. N.Y. Times, Feb. 5, 1970. at 8, col. 4. The Swedish government has stated that 500-525 deserters are residing in Sweden. See note 33 infra and accompanying text.

To evade or refuse registration with the Selective Service System would include making or causing to be made false, improper or incorrect registration, classification, physical or mental examination, deferment. induction, enrollment or muster, or false statements under any provision of the act. This definition accords with the punishment provision of the act, 50 U.S.C. App. § 462 (a) (1970). No official figures are publicly available on the number of draft evaders abroad. But see note 2 supra. The number is necessarily uncertain since most evaders have, for obvious reasons, been out of touch with official sources. Any estimate is. of course, complicated by the fact that many evaders have presumably left the country without registering for the draft.

* Canada, whose foreign policy long mirrored that of the United States. has in recent years developed a distinct approach to foreign relations in some areas. This was a goal of a maior reevaluation of foreign policy undertaken in 1967. See Secretary of State for External Affairs. Foreign Policy for Canadians 38 (1970); Department of External Affairs, Perspectives in Foreign Policy, Statements and Speeches 70/1 (1970). Canada has publicly condemned various aspects of the United States involvement in Indochina. See Department of External Affairs, Some Elements of Canadian Foreign Policy, Statements and Speeches 70/9 (1970).

American estimates as to the number of evaders and deserters who have emigrated to Canada, but the Candian government does estimate that emigration from the United States to Canada has doubled in the last ten years to approx. imately 25,000 annually, with most of the emigrants falling in the 20-29 yearold age bracket. 10 Nor is it known how many evaders or deserters (1) currently enjoy visitor status; 11 (2) reside in Canada illegally; or (3) have returned to the United States.

It is the announced policy of Canada not to discriminate against deserters or evaders seeking refuge in Canada.12 But neither does the draft evader or deserter benefit from any special provisions to ease the legal requirements for residency in Canada. To remain permanently in Canada, aliens must obtain "landed immigrant" status under the Immigration Act.13 This status is currently available with certain qualifications to those who achieve a minimum of fifty "points" on a purportedly objective rating system. Major point categories are as follows: (a) 1 point for each year of formal education, vocational training or apprenticeship (maximum 20);

(b) up to 15 points for skills or professions in high demand;

(c) up to 10 points for any other useful skill;

(d) 10 points if applicant is 18-35 years old;

(e) 10 points if applicant is applying from without Canada and has a firm job offer within Canada;

(f) 5 points each for fluency in English or French;

(g) 5 points if applicant has relatives in Canada at the place he wishes to live willing to assist him, 3 points if he has relatives anywhere in Canada willing to assist him; and

(h) up to 15 points on the basis of an interviewing officer's personal evaluation of the applicant.14

Additionally, there are provisions, rarely invoked, whereby the fifty point minimum can be waived or a person scoring more than fifty points can be denied entry, at the discretion of the interviewing officer.15

Under the above schedule an eighteen year-old American applying either at the border or at a Canadian consulate, who speaks only English and has no special skills, but has arranged for unskilled employment in Canada, begins with a maximum of 37 points.16 Thus, the personal assessment of the interviewing Immigration Officer can be crucial. The interviewing officer has considerable latitude, since there are no standards in either the Immigration Act or the applicable Statutory Orders and Regulations 17 as to what questions the Immigration Officer may ask the applicant. However, the Canadian policy not to discriminate against evaders and deserters presumably bars direct questions as to an applicant's military status. A Canadian attorney active in immigra tion law confirms that deserters and evaders are currently not discriminated against as such, but applicants of their age group sometimes suffer in isolated cases where an immigration official might tend to discriminate in his personal assessments of young people evidencing "counter-culture" life styles, or, more

Letter of Consul Allen Bryce, of the Canadian Consulate-General in New York, to Harvard International Law Journal, Oct. 20, 1971; but see notes 2 and 6 supra.

10 Canadian Press and Information Service, Statement of Mar. 25, 1971, New York, New York.

11 The Canadian Immigration Act, Can. Rev. Stat. c. 1-2 (1970), does not specifically limit the time an alien may stay in Canada as a visitor. Section 7(3) requires the allen to deport to immigration officials any change in status which would cause him to cease being a tourist or visitor, and section 7(4) allows the Immigration Minister to declare on his own initiative that the alien is no longer a tourist or visitor. Section 6 establishes a presumption that the alien is an applicant for immigrant status and not a tourist or visitor. Pressumably, taking a job in Canada, coupled with extended residence there, would establish the deserter or evader as no longer being either a tourist or visitor.

12 Statement of Canadian Minister of Manpower and Immigration MacEachen, quoted in N.Y. Times, May 23, 1969, at 5, col. I.

13 Can. Rev. Stat. C. I-2 (1970).

14 Immigration Regulations, Part I, as amended, Can. Stat. Orders and Regs. No. 67-434 (1967).

15 Can. Rev. Stat. C. I-2 § 32 (4) (1970).

16 Education, 12; 18-35 years old, 10; Knowledge of English, 5; job offer, 10: total of 37 points maximum.

17 Immigration Inquiries Regulations, Can. Stat. Orders and Regs. No. 67-621 (1967); Immigration Regulations, Part I, Can. Stat. Orders and Regs. Nos. 62-36 (1967). 64-327 (1964), 66-147 (1966), 67-434 (1967).