11. LUSKY, LOUIS, "AMNESTY: WHAT SORT WILL BIND OUR WOUNDS"

[Reprinted From The Washington Post, Jan. 9, 1972, p. C3]

(The author is professor of constitutional law at Columbia University Law School)

Mr. Justice Holmes once remarked that the most important thing is to get on to the next thing. From our earliest days we have done it, after every divisive conflict. From the Shays and Whisky rebellions in the 18th Century, through the Civil War, down to the Korean conflict, the ending of hostilities has always been followed by amnesty in one form or another.

President Nixon, in a Jan. 2 television interview, said-with a later qualification that "we always, under our system, provide amnesty. You remember Abraham Lincoln in the last year-the last days, as a matter of fact-of the Civil War, just before his death, decided to give amnesty to anyone who had deserted, if he would come back and rejoin his unit and serve out his period of time." He added that he "would be very liberal with regard to amnesty."

Clearly, amnesty for Vietnam war resisters is an idea whose time has come. As the war grinds toward a halt, we must turn to the task of binding wounds, whether we be military veterans or jailed objectors, supporters of Calley or of the Berrigans. What is important now is that Americans sort out their feelings about what form amnesty should take.

Public debate has already started, and the coming months will see it proliferate. The formulation of positions began more than a year ago, when the American Civil Liberties Union recommended broad amnesty for draft violators, exiles and military offenders. Last March, Rep. Edward I Koch (D-N.Y.) introduced a bill to give relief to conscientious objectors to particular wars. Sen. George S. McGovern (D-S.D.) has declared amnesty to be part of his program in seeking his party's presidential nomination. Last month, Sen. Robert Taft Jr. (R-Ohio) proposed a broader bill, and Rep. Koch is said to be ready to introduce the Taft bill in the House, along with another that would further extend the coverage.

THE POLITICAL REALITIES

What action do we want ultimately to emerge? This, of course, does not mean "what we wished had happened." Politics does not concern itself with trying to lure back the moving finger. Many Americans wish that the Southeast Asia war had never happened. But it did, and we must deal with facts as they now are-and as they may be in the future. Objectors by the tens of thousands have broken the law in their opposition to the war. Some have avoided prosecution by self-exile, some are serving sentences, some have completed their sentences but bear the stigma of criminal status-and, as exconvicts, may face the loss or impairment of such rights as eligibility for public employment and admission to the bar.

The primary political reality, for the time being, was noted by President Nixon: So long as Americans are fighting in Southeast Asia, and probably so long as American prisioners of war are held there, amnesty is virtually impossible. The exception might be clemency for those convicted because their cases were decided before later decisions narrowed the reach of the law. For example, draft refusers punished for conscientious but nonreligious refusal before the Supreme Court ruled in 1970 that such objection should be recognized might win amnesty now. But this is a relatively small group, and they may well be able to wipe out their criminal status through habeas corpus or some other post-conviction remedy even before amnesty is forthcoming.

Granted, however, that amnesty will not materialize until the war is vir tually ended, it does not follow that significant congressional action at present is impossible or even premature. Within the foregoing restrictions, there is a considerable range of possibilities for useful legislation, and the range will widen as the end of the war is approached and accomplished.

How soon the widening will come, or how far it extends, will depend largely on the way the war ends. Should it cease at a defined moment-whether by presidential or congressional action-amnesty is likely to be broader and quicker. Should the war trail off as gradually as it began, with nobody really sure whether there is still a war, amnesty will be meager and slow.

THE ULTIMATE JUDGMENT

Still more fundamentally, the extent of amnesty will depend on the ultimate judgment of Americans on the war itself. Public opinion today still favors the ending of the war. But it is not so clear how many would go farther and say that the whole war has been wrong, and how many would say only that, right or wrong, it has been a frightful and divisive experience that we should thrust into history as soon as possible.

If it turns out that most Americans believe the war to have been basically wrong, amnesty promises to be broad. The central judgment then is likely to be that every American should be relieved of all legal disadvantage he would not have suffered if the war had never begun. That implies not only remission of criminal penalties, but erasure of criminal status for every offender whose crime would not have been committed but for the war.

There might however, be some qualifications. It would not be illogicalthough it would be administratively difficult-to limit clemency to those whose offenses were motivated wholly or partly by conscientious opposition to the war. (To be sure, such a limitation would discriminate against the inarticulate ghetto dweller who, without seeking any particular religious or philosophical justification, simply repudiated the obligation to fight in a white man's war.)

Neither would it be illogical-though, again, it would be administratively difficult to deny full clemency to those whose offenses have been "violent"this is not an easy term to define: Does it include sit-ins? Scrambling draft board records?-and who, by such acts as arson and assault, became menaces to their neighbors. Even with these limitations, however, most acts of criminal opposition to the war would be pardoned.

If, on the other hand, it turns out that most Americans can agree only that the war should be put behind us, amnesty will be narrower. There may be liberation of prisoners, but no erasure of the stigma of conviction or restoration of political and civil rights. There may be amnesty for federal offenders (most of whom are draft refusers) but not for state law violators (most of whom have been convicted for some violence or near-violence, though the great majority have done no more than engage in illegal demonstrations).

CONGRESSIONAL ACTION

But even if the exact shape and timing of the ultimate amnesty is not now knowable, it is not too soon for congressional action. Though clemency for federal offenses is an executive function (Article II, Section 2 of the Constitution gives pardoning power to the President), the moral support of Congress may be important. Because of the divisiveness of this long war, the act of clemency will require political courage (particularly if it is relatively quick and relatively broad). The least Congress can and should do is to affirm by concurrent resolution its support for such amnesty as the President may see fit to grant. But Congress can and should go further. In 1896, the Supreme Court declared that Congress, too, has amnesty power. On this basis, Congress could assume more of the political responsibility by enacting its own amnesty grant, effective upon the cessation of hostilities and the release of war prisoners. Any constitutional doubt could be avoided by providing that the statute be ineffective unless the President, by signing the bill or by a later public proclamation, had manifested his approval.

In addition, there are some acts of clemency that the President cannot perform without congressional authorization. He probably lacks power to restore citizenship that has been renounced as a protest against the war; Congress, possessing the power to naturalize, could restore it. Nor can the President grant amnesty to offenders against state law, such as illegal demonstrators.

AMNESTY BY THE STATES

There may be some doubt whether state offenses can constitutionally be pardoned even by joint action of Congress and the President. Possibly a constitutional amendment would be necessary. An amnesty amendment would not be unprecedented; Section 3 of the Fourteenth Amendment, adopted in 1868, authorized Congress to lift the political disabilities that the section legitimated for ex-rebels. But in my opinion a new amendment is not needed because an

other provision of the Fourteenth gives Congress the power to pardon state law offenses in the present circumstances.

Section 1, after providing that all persons born or naturalized in the United States and subject to its jurisdiction are its citizens, goes on to provide: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." The clause has been little used, largely because of a restrictive and, I believe, erroneous-interpretation by the Supreme Court in 1873 in the Slaughterhouse Cases. But the original purpose of the clause is precisely applicable here. The purpose was to enable Congress, by defining the privileges and immunities of federal citizenship, to afford protection against hostile state action. The newly freed slaves were, of course, the main subjects of concern, but the clause is not limited to them.

If Congress believes that our national interest requires the early restoration of domestic harmony and that such harmony will be promoted by amnesty for antiwar demonstrators and others, then Congress has the power to grant them amnesty. What it takes is a declaration by statute that it is a "privilege and immunity" of United States citizens to gain annulment of convictions and other legal disadvantages suffered by reason of specified acts of opposition to the war. If Congress so provided, the amnesty could be conditioned upon presidential activation, and it could be made subject to such conditions (for example, an oath of allegiance) as Congress might stipulate or empower the President to impose.

Even in advance of federal action, state governors could grant amnesty for state offenses. A federal signal in any form, however, would provide muchneeded political support and encouragement and lead the nation toward clearing the social debris of the war and turning tragedies into bygones.

12. LUSKY, LOUIS, "AMNESTY FOR WHOM, AND HOW MUCH?"

[Reprinted From The National Observer, March 11, 1972]

"Why should we forgive these traitors and cowards, pardon their crimes, welcome them back from Canada and Sweden?"

The question is asked whenever amnesty for war resisters is debated. There are myriad variations on this same theme; sometimes the bluntness is softened, sometimes the rightness or wrongness of the war is acknowledged to be relevant, sometimes distinctions are recognized between those who have fled and those who have submitted to punishment. But the core of the question is constant. It always starts with "Why" and it always is premised on the following assumptions:

(1) That those who have broken the law to show their opposition to the war in Southeast Asia are "traitors" (meaning "disloyal" rather than actually guilty of treason as defined by Article III, Section 3 of the U.S. Constitution). (2) That those who have broken or evaded the law in order to avoid service in the war are also cowards.

(3) That the society can well do without these people if they choose to leave or stay away, and can well relegate them to the status of fugitives, convicts, or ex-convicts if they elect to return or remain.

(4) That the only real problem is how to be fair to these law violators (and their families)—the remaining 200,000,000 or so of us having nothing to worry about except the general ethical responsibility to let the punishment fit the crime.

(5) That the "we" (Why should we forgive) does not include the law violators, but includes only the great law-abiding majority who have made the laws and have at least acquiesced in the war.

Believing that each of these assumptions is fallacious, I shall try to show that the dominant concern for amnesty is a concern for the welfare of society as a whole, and that prepossession with the problem of fairness to the violators involves a sad distraction from the main point. Secondarily, I shall men. tion a few undisputed facts that, in my opinion, cast serious doubt on the accuracy of the first three of the five listed assumptions-facts that suggest that amnesty may be called for even if we disregard the needs of the larger society and seek nothing but fairness to the law violators. In addition, I shall very briefly describe the legal tools that are available to do whatever the American

people ultimately say they want done as they may say at the polls this November.

First, let us examine the root question, the starting point for appraisal of any proposal for public action: Whose ox is being gored? The fourth and Fifth of our five propositions both say, in different ways, that fairness to the lawbreakers is our only concern. I submit that, though by no means unimportant, it should not be even our primary concern. I say that our primary concern is to thrust this long and divisive war into history as completely and rapidly as we can, to let time get on with its healing, to cleanse our society of a continuing legal fallout whose half life is measurable in decades, and-without denying ourselves the honor of mourning the dead, supporting the crippled, and comforting the bereaved-to turn our minds and hearts to the future.

LESSONS CAN BE LEARNED

Dirty and frightful as the war experience has been, lessons can be learned from it that may help us deal with future challenges in a manner more humane, more effective, and less expensive: The war has demonstrated that a society such as ours, in which the people have the ultimate power of decision (however long the exercise of that power may be delayed), will tear itself apart if led into a war whose necessity cannot be made clear to all or nearly all of the people. The war has also done much to liberate us from the fiction, so carefully nurtured by Sen. Joseph McCarthy and his latter-day disciples, that communism is a unitary, monolithic phenomenon comparable to a killing disease-leprosy, say, or tuberculosis-which we are honor bound to fight wherever we find it, and which we can effectively handle with the same sovereign remedies whereever and whenever it shows itself. The war has done a great deal to dispel the dogma that our nation (militarily encumbered, as it is, by its dependence on consent and its humanitarian ideals) can lick anyone we elect to fight, and the still more dangerous dogma that a "white" nation can lick a "nonwhite" nation in any fair and equal combat. The war has also reminded us, as we have not been reminded since the Great Depression, that our liberties are fragile-lovely flowers that flourish and blossom only in the sunlight of common consent-and that our society can remain open only if the policies of our Government command the support, or at least the acquiescence. of nearly everybody (not just a 51 per cent majority).

All these lessons, and others too, will serve us well when we grapple with the problems of today and tomorrow, if only we can allow ourselves to learn. But our ability to understand and profit from the dearly bought experience is, and will remain, gravely impaired so long as the legal debris of the Southeast Asia war remains to distract us, so long as our eyes are blinded by the ashes of dead issues.

What is this legal debris? Let us suppose that tomorrow morning the fighting ends and all war prisoners are sent home. (For years we have been told that the war's end is imminent; and it is a good bet that it will in fact end, or practically end, no later than a few weeks before the November election.) What, then, will our situation be? At that time we shall have terminated the war in its international aspect only. On the domestic side, these quite substantial vestiges will remain-and, barring amnesty, will remain for years and decades to come:

(1) Tens of thousands of objectors to the war have broken the criminal law and, if not already prosecuted, are subject to prosecution. Numerically, the largest groups are draft refusers (or evaders) and participants in illegal demonstrations. The great majority have engaged in no act that has involved or threatened injury to any person, or substantial damage to (or theft of) any property; but some few have committed assault, arson, burglary, and perhaps

worse.

(2) Some of these people have exiled themselves in Canada, Sweden, and other foreign countries. Others, who have not fled, either (a) have been convicted and have completed their sentences, or (b) are presently being prosecuted, or (c) are subject to prosecution.

(3) This last group-those who are subject to prosecution but have not yet been arrested or indicted-is by far the largest. The war's end may lead most prosecutors to ignore them in favor of more dangerous offenders. Even so, however, each of them (and probably his spouse and close associates) will

know that prosecution may ensue-at any time before the applicable statute of limitations has run (and some of them run a long time)-if anything is said, published, or done that awakes the prosecutor's unfavorable attention. The violator will in effect be a probationer, and as such he will have reason to keep his mouth shut on controversial issues. His one venture in political expressionopposition to the war by illegal means-may prove to be his last.

(4) Almost without exception, these violators believe-perhaps rightly, perhaps not-that they have served rather than harmed the United States by revealing, through their lawbreaking or self-exile, the depth of their own conviction that the war has been wrong, helping to speed the general realization (which all agree has now come) that the war must be ended. Millions of others share that belief, and will continue to proclaim the injustice of continued punishment, prosecution, or de facto probation. To that extent-and it is a large extent the divisive effect of the war will be prolonged.

(5) The rankle will not die away as soon as prosecutions are ended and sentences served. The stigma of criminal status-the status of the ex-convict-will still rest on those who have suffered it. The status carries with it various political and civil disabilities, heavier in some states than in others: disability to vote, to hold public office, to obtain public employment; ineligibility for admission to the professions such as law, medicine, and teaching, or for admission to other licensed callings such as taxi driving and liquor retailing; and so on. (6) The law violators are numerous enough, and are sufficiently dispersed geographically, to spread these effects throughout the land. The problem is thus a national one, and-arising as it does from a national war, involving as it does our national political health-it can only be dealt with effectively and uniformly through Federal action.

These are the conditions that will face us when the war is over. But should we postpone until then our consideration of the problem? I do recognize the accuracy of President Nixon's prediction that amnesty-though it will surely come, as he says, just as it has come (in one form or another, and not always under the name of amnesty) after every divisive rebellion or foreign war-will be delayed until our prisoners are back home and American servicemen (except perhaps for volunteers) no longer fight in Southeast Asia. It does not follow, however, that we ought to wait until then to lay the political groundwork. It is not too soon to initiate public debate on the scope and timing of the amnesty-the amnesty that history and the President say is inevitable, and which the President, on Jan. 2, declared he would be "very liberal" in granting when the time comes. There are enough months left before the November election for public opinion to crystallize, for candidates to be queried on their amnesty views, and thus for the people's will to be expressed at the polls.

Nor is it too soon to lay the legal groundwork. It is true, as President Nixon has reminded us, that clemency for Federal offenses is an executive function. Article II, Section 2 of the Constitution gives pardoning power to the President. But Congress also has a part to play.

At a minimum, Congress can and should shoulder part of the political responsibility for amnesty, particularly if relatively quick and broad, will require political courage of a high order; this long war has been divisive-by a concurrent resolution affirming congressional approval and support of whatever amnesty it thinks the public interest demands. That is the least that Congress can do, or at any rate it is the least that I think Congress should do.

There is explicit, though not indisputable, authority that says Congress itself has the power to grant amnesty. The Supreme Court has so declared on more than one occasion, though always in cases that involved other issues and did not squarely present the question of congressional amnesty power. An amnesty statute would constitute an assumption of full political responsibility by Congress. It would also constitute the most authoritative expression of the will of the American people, a consideration the importance of which will be explained in a moment.

To avoid any lingering Constitutional doubt (and to avoid the wrangling of Constitutional experts that delayed enactment of the 1964 Civil Rights Act). the effectiveness of the statute might be made conditional upon affirmative Presidential action. That is to say, the bill might stipulate that it would become law only if the President signed it, or approved it by later public proclamation-not if he simply failed to sign it (which ordinarily allows a bill to become law) or vetoed it (unless it were then enacted over his veto and he or his successor later approved it by proclamation). Politically, such a limitation