is of small importance in view of the unlikelihood that the bill would pass at all without support from the White House.

It may be said that such a concurrent resolution or statute would be premature at the present time because the war is still being fought. Perhaps this is so, al though the objection might be at least partially obviated by a provision delaying the effective date until the President proclaimed that hostilities had ended or been reduced to such a level as to justify the effectuation of amnesty. But let us assume that specific amnesty action is deemed to be premature for the time being. There is still grist for the congressional mill. It is certainly not too soon to provide the President with all the authority he needs for full and effective amnesty, even though he may not exercise it for a while. Congress has followed this course before. For example, the President was vested with authority to fix prices, wages, and rents long before he saw fit to exercise it. When the time did come, he was in a position to act without delay for congressional action.

PRESIDENTIAL POWER LIMITED

True it is that the President already has plenary power to grant clemency to Federal offenders, both military and civilian. True it is that such clemency can take the form of full pardon (with erasure of guilt-as is done in cases of mistaken identity), or remission or reduction of punishment. True it is that reasonable conditions-perhaps an oath of allegiance, as after the Civil War; perhaps alternative public service, as proposed by Senator Taft and otherscan be attached. There are, however, certain things that the President probably lacks power to do without congressional authorization. He probably lacks power to restore the citizenship of those who have relinquished it in protest against the war; it is Congress that possesses the naturalization power. And he surely lacks power to grant clemency to the many violators of state law, a category that includes most of the illegal demonstrators.

As a matter of fact, some Constitutional lawyers may well say that this latter group cannot be granted clemency even by Congress and the President acting in concert. They may say that the power resides only in the respective state governors. My own opinion is otherwise. I believe that Congress has an untried but available Constitutional resource in the "privileges or immunities clause" of the Fourteenth Amendment. As I have written before:

"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 impose or empower the President to impose."

A JUDGMENT ON THE WAR

It remains to consider how broad the amnesty should be. That depends ultimately upon whether our concern extends to the condition of our whole society, or whether we interest ourselves only in fairness to the violators; and that question is intimately linked with the judgment that the American people make upon the rightness or wrongness of the war itself. If the war is found to have been the basic mistake from which all else flowed, those who opposed it sooner and more vigorously than the rest of us are to be regarded as having performed a service through their illegal acts. They may well have sped the general realization of the war's true character; at any rate, that was their

purpose and their hope. This realization has gradually come into focus as we have read the Pentagon Papers, as we have learned the shabby factual basis of the recently repealed 1964 Gulf of Tonkin Resolution (which, in the absence of a formal congressional declaration, is generally taken to mark the beginning of the war). If the violators have served the United States by their submission to punishment or self exile-acts which, it may be said, have connoted courage much more often than cowardice-amnesty should be broad, quick, and unconditional.

A strong case can be made for the proposition that Americans did pass adverse judgment on the war no less than four years ago. In my opinion the 1968 Presidential election, in which both major candidates won nomination on an end-the-war program-and in which President Lyndon B. Johnson (who indeed had won the 1964 election on a no-war platform) declined to run for the stated reason that he feared his candidacy would hamper his peacemaking efforts was a clear condemnation of the war. If it was, most Americans have said that the war has been a bad one at least since 1968, if not since its beginning.

This November the people will have another opportunity to express themselves, if the issue is adequately framed in the Presidential and congressional races. Should the people reaffirm what I think they said in 1968, it logically follows that every American should be relieved of every legal disadvantage he would not have suffered if the war had never begun (or, at the least, any such disadvantage that he incurred after the 1968 election). That implies not only remission of criminal penalties but erasure of criminal status, for every of fender whose crime would not have been committed but for the war.

It is desirable that amnesty be granted openly and officially if premised on the wrongness of the war-not bit by bit in the form of quiet military discharges given to deserters, or case-by-case leniency accorded by clemency commissions or parole boards. The candid admission of error is beneficial not only to the individual soul, as the churchmen tell us, but also to the body politic. The French profited from their painful recognition of the wrong done to Captain Dreyfus. The Germans profited from their even more painful recognition of the wickedness of Hitler and his Nazis. We Americans, if we truly believe that the war in Southeast Asia has been a bad mistake, would benefit-both in self-esteem and in our relations with the rest of the world-by making express and official acknowledgment of the error, and doing it sooner rather than later.

Full amnesty might not, however, be thought appropriate in all cases. It would not be illogical, though 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 in favor of the articulate young men who are capable of explaining their feelings in religio-philosophical lingo; and relatively few of them come from Appalachia or Harlem.) Neither would it be illogical (though, again, administratively difficult) to deny full clemency to those whose offenses have been "violent”—not an easy term to define; does it include sit-ins? the scrambling of draft board records?-and who, by such acts as arson and assault, have revealed themselves as 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 prosecuted for some form of violence or near-violence, though the great majority have done no more than block the transport of draftees or engage in other illegal demonstrations).

DANGERS IN UNJUST ACTION

In appraising the desirability of limitations upon amnesty, however, one somber fact must not be ignored. Attica stands as a reminder of the difficulty and human waste involved in punishment of people who believe themselves to have been unjustly convicted, and the primitive crudity of the methods our penologists have thus far devised for dealing with them.

And in deciding whether clemency is due to such offenders as the Berrigans, we should ask ourselves this question: Had John Brown's body not lain amouldering in the grave when the Civil War ended-if, instead, he had been serving a prison term-would he have been accorded less generosity than Jefferson Davis and Robert E. Lee?

Only a crystal ball could tell us how the amnesty problem will eventually be resolved. Much may depend on how the war ends. Should it cease at a defined moment-perhaps with the aid of the United Nations, whose competence in this regard has suddenly increased with the admission of mainland China; perhaps as a result of President Nixon's trip to Peking; perhaps as a result of a congressional act of punctuation-amnesty is likely to be quicker. Should the war trail off as gradually as it began, amnesty may be slow in coming.

But come it will. And it is now time for every American to examine his own thoughts and opinions; to make them known to all who will listen; to call upon candidates for statements of position; and to carry his convictions with him into the voting booth on Nov. 7.

13. REPORT OF THE PRESIDENT'S AMNESTY BOARD, 1947 (OWEN J. ROBERTS, CHAIRMAN), AND PRESIDENTAL PROCLAMATION ON AMNESTY (DEC. 23, 1947) The President's Amnesty Board, established by Executive Order of December 23. 1946, to review convictions under the Selective Training and Service Act of 1940, as amended, and to make recommendations for Executive Clemency, has completed its task and submits this, its first and final report.

Before adopting any general policies, the Board heard representatives of interested parties and groups. It heard representatives of historic peace churches, of the Federal Council of Churches of Christ in America, leaders of the Watchtower Bible and Tract Society (whose followers are known as Jehovah's Witnesses), officials of the United States Army and Navy, and the National Headquarters of Selective Service, representatives of citizens' groups, veterans' organizations, and pacifist organizations. Some of the violators themselves, formerly inmates of penal institutions, appeared, either in person or by representatives, and were heard.

Their recommendations varied from that of a general amnesty to all violators regardless of the circumstances, to a refusal of amnesty to anyone. To grant a general amnesty would have restored full civil status to a large number of men who neither were, nor claimed to be, religious conscientious objectors.

In perhaps one-half of the cases considered, the files reflected a prior record of one or more serious criminal offenses. The Board would have failed in its duty to society and to the memory of the men who fought and died to protect it. had amnesty been recommended in these cases. Nor could the Board have justified its existence, had a policy been adopted of refusing pardon to all.

In establishing policies, therefore, we were called upon to reconcile divergencies, and to adopt a course which would, on the one hand, be humane and in accordance with the traditions of the United States, and yet, on the other hand, would uphold the spirit of the law.

Examination of a large number of cases at the outset convinced us that to do justice to each individual as well as to the Nation, it would be necessary to review each case upon its merits with the view of recommending individual pardons, and that no group should be granted amnesty as such.

Adequate review of the 15.805 cases brought to our attention would have been impossible had it not been for the cooperation of Government departments and agencies, such as the Office of the Attorney General, the Federal Bureau of Investigation, the Bureau of Prisons, the Criminal Division of the Department of Justice, the United States Probation Officers, the Administrative Office of the United States Courts, United States Attorneys throughout the country, the Armed Forces of the United States and the Headquarters of Selective Service. The records of these offices were made available, and those in charge furnished requested information.

The information derived from all sources was briefed by a corps of trained reviewers. It included such essential data as family history, school and work records, prior criminal record, if any, religious affiliations and practices, Selec

tive Service history, nature and circumstances of offenses, punishment imposed. time actually served in confinement, custodial records, probation reports, and conduct in society after release. In addition, the Board had in most instances psychiatric reports and one or more voluntary statements by the offender concerning the circumstances of the offense.

When the Board organized in January 1946, about 1200 of the 15,805 violators of Selective Service were in penal institutions. The number diminished daily. At the present time there are 626 in custody; 550 of these have been committed since the constitution of this Board. The work of the Board was directed chiefly to examining the propriety of recommending restoration of civil rights to those who have been returned to their homes.

In analyzing the cases we found that they fell into classes, but that in each class there were exceptional cases which took the offender out of the class and entitled him to special consideration. The main divisions into which the cases fell were (1) those of violation due to a wilful intent to evade service, and (2) those resulting from beliefs derived from religious training or other convictions.

At least two-thirds of the cases considered were those of wilful violation, not based on religious scruples. These varied greatly in the light of all the relevant facts disclosed in each case. It became necessary to consider not only the circumstances leading up to the offense, but the subject's background, education, and environment. In some instances what appeared a wilful violation was in fact due to ignorance, illiteracy, honest misunderstanding or carelessness not rising to the level of criminal negligence. In other cases the record showed a desire to remedy the fault by enlistment in the Armed Forces.

Many of the wilful violators were men with criminal records; men whose records included murder, rape, burglary, larceny, robbery, larceny of Government property, fraudulent enlistment, conspiracy to rob, arson, violations of the narcotics law, violations of the immigration laws, counterfeiting, desertion from the United States Armed Forces, embezzlement, breaking and entering, bigamy, drinking benzedrine to deceive medical examiners, felonious assault, violations of National Motor Vehicle Theft Act, extortion, blackmail, impersonation, insurance frauds, bribery, black market operations and other offenses of equally serious nature; men who were seeking to escape detection for crimes committed: fugitives from justice; wife deserters; and others who had ulterior motives for escaping the draft. Those who for these or similar reasons exhibited a deliberate evasion of the law, indicating no respect for the law or the civil rights to which they might have been restored, are not, in our judgment, deserving of a restoration of their civil rights, and we have not recommended them for pardon.

Among the violators, quite a number are now mental cases. We have made no attempt to deal with them, since most of them remain in mental institutions with little or no chance of recovery. Until they recover mental health their loss of civil rights imposes no undue burden.

The Board has made no recommendation respecting another class of violators. These are the men who qualify for automatic pardon pursuant to Presidential Proclamation No. 2676, dated December 24, 1945. They are the violators who, after conviction, volunteered for service in the Armed Forces prior to December 24, 1945. and received honorable discharges following one year or more of duty. Most of those who, prior to the last-mentioned date and subsequent to that date, entered the Army and received honorable discharges with less than a year of service have been recommended for pardon. These men have brought themselves within the equity of the President's Proclamation, No. 2676.

The second main class of violators consists of those who refused to comply with the law because of their religious training, or their religious, political or sociological beliefs. We have classified them, generally, as conscientious objectors. It is of interest that less than six per cent of those convicted of violating the Act asserted conscientious conviction as the basis of their action. This percentage excludes Jehovah's Witnesses, whose cases are dealt with hereafter. Although the percentage was small, these cases presented difficult problems.

The Selective Service Boards faced a very difficult task in administering the provisions concerning religious conscientious objection. Generally speaking. they construed the exemption liberally. Naturally, however, Boards in different localities differed somewhat in their application of the exemption. In recom

mending pardons, we have been conscious of hardships resulting from the factor of error.

Many of the Selective Service Boards did not consider membership in an historic peace church as a condition to exemption of those asserting religious conscientious objection to military service. Nor have our recommendations of pardons been so strictly limited. We have recommended individuals who were members of no sect or religious group, if the subject's record and all the circumstances indicated that he was motivated by a sincere religious belief. We have found some violators who acted upon an essentially religious belief, but were unable properly to present their claims for exemption. We have recommended them for pardon.

We found that some who sought exemption as conscientious objectors were not such within the purview of the Act. These were men who asserted no religious training or belief but founded their objections on intellectual, political, or sociological convictions resulting from the individual's reasoning and personal economic or political philosophy. We have not felt justified in recommending those who thus have set themselves up as wiser and more competent than society to determine their duty to come to the defense of the Nation.

Some of those who asserted conscientious objections were found to have been moved in fact by fear, the desire to evade military service, or the wish to remain as long as possible in highly paid employment.

Under the law, a man who received a IV-E classification as a conscientious objector, instead of being inducted into the Armed Forces, was assigned to a Civilian Public Service Camp. The National Headquarters of Selective Service estimates that about 12,000 men received this classification, entered camps and performed the duties assigned them. Certain conscientious objectors refused to go to such camps on being awarded a IV-E classification, or, after arriving at the camps, refused to comply with regulations and violated the rules of the camps in various ways as a protest against what they thought unconstitutional or unfair administration of the camps. Some deserted the camps for similar reasons. We may concede their good faith. But they refused to submit to the provisions of the Selective Service Act, and were convicted for their intentional violation of the law. There was a method to test the legality of their detention in the courts. A few of them resorted to that method. Where other circumstances warranted we have recommended them for pardon. But most of them simply asserted their superiority to the law and determined to follow their own wish and defy the law. We think that this attitude should not be condoned, and we have refrained from recommending such persons for favorable consideration, unless there were extenuating circumstances.

Closely analogous to conscientious objectors, and yet not within the fair interpretation of the phrase, were a smaller, though not inconsequential number of American citizens of Japanese ancestry who were removed in the early stages of the war, under military authority, from their homes in defense coastal areas and placed in war relocation centers. Although we recognize the urgent necessities of military defense, we fully appreciate the nature of their feelings and their reactions to orders from local Selective Service Boards. Prior to their removal from their homes they had been lawabiding and loyal citizens. They deeply resented classification as undesirables. Most of them remained loyal to the United States and indicated a desire to remain in this country and to fight in its defense, provided their rights of citizenship were recognized. For these we have recommended pardons, in the belief that they will justify our confidence in their loyalty.

Some 4.300 cases were those of Jehovah's Witnesses, whose difficulties arose over their insistence that each of them should be accorded a ministerial status and consequent complete exempton from military service, or Civilian Public Service Camp duty. The organization of the sect is dissimilar to that of the ordinary denomination. It is difficult to find a standard by which to classify a member of the sect as a minister in the usual meaning of that term. It is interesting to note that no representations were made to Congress when the Selective Service Act was under consideration with respect to the ministerial status of the members of this group. Some time after the Selective Service Act became law, and after many had been accorded the conscientious objector status, the leaders of the sect asserted that all of its members were ministers. Many Selective Service Boards classified Jehovah's Witnesses as conscientious objectors, and consequently assigned them to Civilian Public Service Camps. A