of one's case to determine the motives for one's actions. This case-by-case adjudication of conscience was only exhibited in the President's program by the Clemency Board. One of the factors of mitigation in their procedures is "evidence that an applicant acted for conscientious, not manipulative, or selfish reasons." I have, however, never been able to find out in my conversations with former Senator Goodell how one measures the sincerity of a man's motivation or explores the deep recesses of his conscience. Frankly, most people, I know, including myself, have some difficulty in determining precisely why we acted as we did yesterday with any absolute assurance that no unconscious or preconscious motives are creeping in. To judge the motives of another person seems even more difficult.

This adjudication is of course complicated by the fact that most of the acts under scrutiny occurred as long as 5 or 7 or 10 years ago. When there was an induction authority, of course, local draft boards were given the duty of determining the sincerity of a man's claim to conscientious objector status. Their success rate, however, was open to some serious doubt. Assistant Defense Secretary Roger Kelly told the Senate Armed Services Committee in February of 1971, that, of the 100,000 C.O. claimants in 1970, only 19,000 were given the requested status. This 81% rejection rate was far in excess of the rejection rates in World War I (where it was 13%) or World War II (where only 28% of the applicants were denied these exemptions) 3 Serious questions can be raised about the quality of that initial review of conscience, which, of course, is responsible for large numbers of men being in legal jeopardy today. Within the military, c.o. claims were consistently and inappropriately (if not illegally) denied as well.

At previous hearings before this committee and in similar hearings before the Senate, the question of "conditional amnesty" was constantly raised. Would it work? Most of us said it would not. Now there is the starkest evidence of all to indicate the validity of that answer. President Ford's "conditional clemency" has not worked. Only 20% of the limited categories of people eligible have actually even applied in the past seven months. Given the problems Mr. Schwarzschild and I will discuss in relation to the specifics of the program, it is highly doubtful that even a third of these applicants will ultimately achieve any redress at all.

Implementation of Department of Justice Procedures

Given that the Department of Justice's program, which covered all draft evaders, registered or not registered, who were unconvicted but committed offenses between August 4, 1964 and March 28, 1973, faced all of the inherent problems of any "conditional amnesty," there is little wonder that it failed to achieve more than 686 agreements out of, conservatively, 100,000 non-registrants and 4,400 known draft resisters. However, cutting even deeper were the problems in the implementation of the program around the country, problems which raise severe doubt about how "lenient" its administrators really were in many cases.

Under a Department of Justice document, not actually made public until the appearance of Mr. Kevin Maroney on December 19, 1974 before Senator Kennedy's Subcommittee on Administrative Practice and Procedures, certain factors were considered to be "mitigating" in the determination of the length of the alternative service term. The U.S. Attorney was given discretion to reduce the 24 month term if it approved that the applicant had 1) "been erroneously convinced by himself or by others that he was not violating the law, 2) was in desperate need to help his immediate family." 3) lacked sufficient mental capacity to appreciate the gravity of his actions, or 4) “such other similar circumstances." Numerous individuals were not aware of these limited factors of mitigation before their arrival to turn themselves in at the U.S. Attorney's office. Conspicuously absent from the list is, of course, opposition to the war in Indochina. This is again indicative of the President's desire to act as if the war were somehow unconnected to the whole clemency program and the needs which helped create it. It is interesting that, in some judicial districts, all applicants received the maximum term, and that overall 5 out of 7 persons received 19-24 months.

A second major problem is that U.S. Attorneys did not provide for free legal counsel, for those in jeopardy. Although many men were told to obtain a lawyer, this would have been difficult in many cases if they had not been

Congressional Quarterly, April 2, 1971.

4 Memorandum to all U.S. Attorneys from William Saxbe, September 16, 1974.

in touch with the amnesty movement or counseling network prior to this decision. It has been persuasively argued that legal assistance could have been provided across the United States for this program under the Criminal Justice Act of 1964, 18 U.S.C. 3006 A. Only in Oregon, however, has this provision been thoroughly explored. There, the U.S. District Court under Judge Robert Belloni, in conjunction with U.S. Attorney general Sidney Lezak ordered the Federal Defender Section appointed as attorney to each indicted alleged defendant in Oregon for the purpose of determining whether the defendant wanted assistance in a file review and whether he qualified financially for CJA funds.

Some have questioned how important legal assistance is for these charges. However, it is important that this committee be clear about the extreme difficulty the U.S. Attorneys have had within the past few years in successfully prosecuting alleged draft evaders. The vast majority of cases taken through the courts recently have been dismissed before trial. Of course, others are successfully defended in the trial stage. In fiscal 1973, for instance, 3495 indictments or complaints were issued while only 977 or 28% resulted in convictions. The Department of Justice has somewhat obtusely argued for years that most of the non-convictions were because of agreements to accept induction in lieu of prosecution. However, under directives issued by the Department of Defense to be implemented beginning in fiscal 1974 such inductions were no longer possible. In 1974 the preliminary figures from the Administrative Office of the U.S. Courts indicate that of 2,070 cases taken through the courts only 686 were successfully prosecuted. This constitutes a 33.1% conviction rate and means that the draft evader has a 2:1 chance of avoiding any sentences by taking the normal judicial route."

Awareness by the Justice Department of the lack of prosecutive merit in many cases led to an order by the Attorney General William Saxbe to all U.S. Attorneys on November 13, 1974, to review the cases of those men indicted under complaint, or under investigation in their districts to determine whether the case should be dismissed. Regrettably, however, there appears to be an incredible discrepancy in the seriousness with which U.S. Attorneys undertook this task. For example, in the Southern district of Mississippi 14 of the 19 pending cases were declined prosecution or were dismissed, that is a 74% dismissal rate. However, the Western district of Pennsylvania had 67 pending cases and dismissed not a single one. It is difficult to believe that the practices of Selective Service in that area of Pennsylvania were so perfect as to lead to no dismissable errors. Alternatively, I suspect that such attorneys were lax in seriously studying the possible errors and defenses in those cases.

Clearly, many of the remaining 4,400 draft evaders known to the Justice Department have perfectly valid defenses to their indictments. Unfortunately, in many judicial districts persons in fugitive status are not permitted to have a pretrial motion to dismiss presented in their physical absence even though they have granted power of attorney to a legal representative.

These remaining 4,400 men constitute a "final" list of draft registered persons still in jeopardy for draft evasion offenses from August 4, 1964 to March 28, 1973. The list was completed after Senator Edward M. Kennedy requested of the Justice Department that they update and complete the list of men in jeopardy initially released to the Center for Social Action, United Church of Christ, pursuant to a Freedom of Information Act request. Although my office does not handle the bulk of informational requests any longer, some 60% of the callers there discovered they were no longer on the list. In fact, many had to go into exile or underground as long as 5 years ago because of F.B.I. investigation, but charges were never actually filed. They were not informed, though, that they were no longer considered in possible jeopardy. In the years 1964-1973, approximately 209,204 cases were initially referred to the Justice Department by Selective Service officials. The 4400 list is not, however, final in regard to those persons who did not register for the draft. The Justice Department is quite unlikely to even find these individuals, yet they theoretically face a sentence of 5 years in prison and a $10,000 fine. It is certainly unfortunate that the President's program did not include a provision for unpunished registration of those non-registrants now in this kind of limbo. President Ford's own son failed to register for the draft on time because it "slipped

5 Court Order. Appendix A.

New York Times, September 21, 1974.

his mind." He was not, of course, prosecuted-and should not have been. Unfortunately, some of his contemporaries are not so lucky. In fact, in the Western District of Pennsylvania several men who had similar mind slippage now have felony records forever."

I would like to illustrate the human cost of the lack of such a registration program. In one case with which I am familiar, a man from inner-city New York was having difficulties with drug abuse during his teenage years. He spent time in prison for drug abuse offenses. Needless to say, registering for the draft was not a high priority in his life and he did not register. After participating in a federal drug rehabilitation program, he stopped using drugs and got a steady job in New York City. Feeling that he should now register with Selective Service to fulfill an old obligation, he did so. Shortly thereafter, he was informed that unless he signed up for 24 months of alternate service. he would likely end up back in prison. He signed up. His new drug free life is now disrupted again. (Full statement appended).

8

It is difficult to express the relief many parents felt when I could tell them their son was no longer in legal jeopardy. For most, this was the end of a long, arduous separation which had appeared to be virtually permanent. Unfortunately, however, this was not a final resolution for a sizeable number of persons because of an outrageous practice of the Immigration and Naturalization Service.

The Presidential Clemency Program precluded participation from individuals who are "precluded from reentering the United States under 8 U.S.C. 1182(a) (22) or other law. This section provides for a permanent bar to returning to the U.S. for any former Americans who left the U.S. or remained abroad "to avoid or evade training or service in the armed forces. . ." In general, of course, the American system of jurisprudence demands proof for charges which stigmatize the person involved or which prevents anyone, American or foreign national, from receiving all the rights and privileges to which he is entitled. In the above "violations" of 8 U.S.C. 1182 (a) (22), however, such proof of intent is not being required. Immigration officials are determining as a matter of fact that former Americans who have recently become citizens of Canada, Sweden, or elsewhere. must have left to avoid military service. They are making such a determination on their own, ignoring the fact that many thousands of alleged draft evasion cases have been dropped and investigations ended because the charges could not be proven as a matter of law. We have the shocking situation now that the Immigration and Naturalization Service has decided in many cases to ignore the findings of the Federal prosecutors or the F.B.I. that a man is not a draft evader and to determine on its own, without seeking any further evidence, that the motivations for a man's acceptance of a new citizenship were always the avoidance of military service. as we are parts you to mqoad v Surmos e expected. In the past four years, in increasing numbers each year, some 7500 Americans have become naturalized Canadian citizens, for example. Due to the five year waiting period there where one has the status of "landed immigrant." many former Americans—including some who did not leave for any anti-war reasons are now considering what to do in light of this practice. A permanent bar to visitation is certainly a serious human problem, but it is particularly inhumane to use such a bar as a punishment imposed because legal culpability cannot be maintained or proven through normal judicial channels.

I would like to point out one final administrative procedure which has left many of those potentially eligible dismayed or at least confused. In order to participate in the clemency program, a resister was required to sign a documer t in which he pledged allegiance to the country (as if he had not been acting always in the best interests of the nation and its people) and waived certain protections. Waived are the "constitutional right to double jeopardy and the right to use any delay during the period of my alternate service to establish a defense based upon Rule 48(b) of the Federal Rules of Criminal Procedure, the constitutional right to due process or a speedy trial, and the statute of limitations in a prosecution initiated because of a violation of this agreement." The ramifications of such waivers are not all yet apparent.

7 Statement of Malcolm Nash. Appendix B.

Congressional Record, Nov. 28, 1973, page E7547.

Implementation of Department of Defense Procedures

Although the Defense Department began its role in the clemency program in significantly appalling ways, and although major problems persist, there is one fundamental reason why the Defense program has been a relatively greater success than the other parts of the program. The reason is the so-called "deserter's loop hole" through which a returnee is seemingly able to avoid the requirement of actually performing any alternate service. When a man is processed through Fort Benjamin Harrison in Indianapolis, he is required to sign a piedge in which he promises, in the most offensive language possible, to "hereafter bear truth, faith and allegiance (to the Constitution)," admit that he violated the Uniform Code of Military Justice, and pledge to do "whatever alternate service my country may prescribe," recognizing that "my obligations as a citizen remain unfulfilled.” However, once he is processed out with an undesirable discharge, the military loses jurisdiction over him unless they can prove that he fraudulently obtained his discharge (a violation of Article 83 of the U.C.M.J.) To prove such a violation, they must show his intent to defraud, something military authorities have admitted will be virtually impossible. If a person goes through the formal routine of applying for a job with his state Selective Service officials, the difficulty of proving any contrary intent is much greater.

Many deserters, however, do not feel that they could, in conscience, use such a "loophole" and that, in fact, has prevented many more from returning. There is, of course, very little impetus to do the alternate service on practical grounds as well, since the most the work can do is to allow a man to exchange his undesirable discharge for a so-called "clemency discharge." Such a discharge is of dubious value since it will not grant Veterans Administration benefits, (even though in the majority of cases it would take 24 months work to get it) and will, in the view of many experts, make a man no more employable than before. Last year, Congressman John Seiberling released a study of America's 100 largest corporations, a study designed to test whether they in fact discriminate against veterans with other than honorable discharges. Of the 74 which responded, 73% admitted discrimination in regard to hiring men with Dishonorable Discharges, 62% with "Bad Conduct" discharges, 61% with Undesirable ones, and an amazing 41% with general discharges under honorable conditions." It is very difficult to see how a "clemency discharge", which General Counsel Martin Hoffmann has admitted does not even recharacterize one's military service as under honorable conditions, will do more than further stigmatize its recipient. For this reason, former Senator Goodell has coupled with the clemency discharge he suggests pardons as well. I am in full agreement with Mr. Schwarzschild that the addition is not very worthwhile, but the motive, a recognition of the relative uselessness of the clemency discharge, is quite clear.

I do have some serious problems as well with the whole notion of the President's power to simply "create" new types of discharge by fiat. An exhaustive article in the Harvard Civil Rights/Civil Liberties Law Review discusses the legal implications and authority for the creation of all administrative discharges at great lengths. I am sure that the Congress will need to deal with this problem in the years ahead.

Outside of these overriding difficulties with the remedy offered, four other areas need to be examined. First is the refusal of the Defense Department to provide counseling agencies with a list of "deserters-at-large." Second are procedural problems relating to “legal briefings" for returnees. Third are deficiencies in the administration of the Joint Alternate Service Board. Finally, some procedures followed smack of "entrapment," serving in the armed forces.

A group of lawyers and counselors, principally in the Washington, D.C. area, had formally requested a list of such deserters from the Secretaries of the Army, Navy, and Air Force. In a letter from John Finneran, a Deputy Assistant Secretary of Defense, that request was denied because it "would constitute... a clearly unwarranted invasion of personal privacy." The underlying assumption was, as well, that if a person is in fact a deserter, he knows it and therefore the problem is not there which existed in regard to the Justice Department list. Although this is an intriguing analysis, there is some doubt as to the validity of the list being used to determine eligibility for the President's program. Many counselors were surprised to learn that there were only 12,500 at large deserters and 600 in prison 9 Harv. Civ. Lib. L.R. 227.

on September 16, 1974 when the President executed his program. We are afraid that the technique used to determine that figure was not as accurate as purported. Joseph Kellerman, a military counselor with the Friends Military Project at Fort Dix, New Jersey, who spent five weeks at the National Council of Churches Clemency Information Center, reports that of the roughly 500 cases he handled, nearly 50% were not found on the inactive lists, but were eventually discovered in the alpha, or active, file, or in St. Louis (as already discharged), or were never found at all. It seems likely then, that the initial figure of 13,000 may well be inaccurate and that some persons over whom the Defense Department had questionable jurisdiction may have needlessly participated in the President's program. A greater problem, though, arises with those men who were clearly eligible but who did not realize that they may have had better options outside the program. The starkest admission of this problem was reported to the N.Y. Times as early as October 8, 1974. A military lawyer assigned to work with the returnees, Captain Russell Fontenat, said he felt that about half the returnees could successfully defend against their charges in a court martial proceeding. He noted, however, that "all they want to do is to be left alone and get out of the service the quickest way possible." Honorable discharges could be the result of such court martials, he continued, if charges could not be proven because of missing records (particularly the "morning report" which indicates persons missing from duty), dead company commanders, or other factors.

My greatest problem with the legal counsel employed by the government was how seriously they explored these various options with the returning personnel. Non-military sources in Indianapolis admitted that many of these JAG officers became much better advocates toward the end of the program, but this does little for the many thousands of men processed earlier. Mr. Hoffmann, in earlier testimony before this committee, expressed the sense that legal options were carefully laid out to the returnee. However, this is simply not a reflection of what consistently occurred at Fort Benjamin Harrison.

In general, counselors at the N.C.C.'s Clemency Information Center reported the following kinds of experiences. First, there was great disparity in the care taken by military counsel to evaluate records. In fact, counsel generally did not on its own initiative even look at the records available. If a man felt something might be indicated therein, then records were retrieved. Second, there was a high degree of irregularity in the consideration of claims for separation under honorable conditions. Only 44 returnees were actually given better than an undesirable discharge, and most of these were claims originated at the C.I.C. Third, to my knowledge only one person actually accepted court martial in lieu of discharge because of the noxious circumstances surrounding this process. Men would have been confined for lengthy periods and probably sent to Ft. Knox for trial. These men were frustrated, distraught, and in a hurry to get out. The Defense Department, I am sure, was and is aware of the enormous psychological pressures which would push a man into "clemency" rather than explore fully his other options. Various counseling and legal organizations are already planning to take many cases to the Discharge Review Boards in Washington to try to have gross errors corrected.

Ms. Dorie Budlow of Boston's Legal In-Service Project has supplied me over these months with many case histories which illustrate this lack of serious evaluation of defenses. One man, whom we are calling Mr. Davis, was a member of the Ohio National Guard during the time that the Kent State tragedy occurred. After being told by a colonel that the Guard had acted properly but that next time they "should get forty instead of four," he decided that participation in the Guard was morally wrong. He left for Canada, shortly thereafter being activated, seemingly improperly. to the regular Army. He received 21 months alternate service, but will appeal his discharge in Washington.

A man we have labeled Mr. Jones should never have been inducted into the Army in the first place because of a severe asthma problem. However, his request for conscientious objector status had been denied even though a chaplain and two officers recommended it because the Army psychiatrist felt he was not sincere. At processing at Fort Benjamin Harrison, a discharge under honorable conditions was refused because there is no provision for discharging a man who applied only for 1-A-O status (non-combatant in the military) instead of 1-0 status (civilian outside military). His clemency service, however, was reduced to 23 months because of the "mitigating factors" in his case. Although assigned to duty in the California Ecology Corps he cannot begin because of his asthma and a slipped disc. At the Ecology Corps he will be asked to fight forest fires. (The full text of this and other cases is appended.)