presented to them that the clemency board would upgrade their discharges when it cannot do that, and so forth.

Now, it is not that no one has, in his own mind, sought to benefit from this program. And some men, indeed, may derive a limited benefit from it. The point that we make is that for most of those who need an amnesty, the program was irrelevant. For those few that have applied, the benefits are so limited and given in such a niggardly and punitive fashion, that after the tragedy of the Vietnam war, we believe a far greater and more wholesale step is required.

Mr. KASTENMEIER. I appreciate that.

This point is made time and time again, and it is easy for some to assume that all really share the same view of war, the same moral indignation that is represented in American exile literature and the like, and it is very compelling indeed. But really, to what extent are you really sanguine that all individuals share this terrible feeling of indignation, and that the process of coming back is demeaning and the like?

Mr. SCHWARZSCHILD. No, sir; I would not say that. I would hardly be in a position to represent, with any authority, the feelings and the judgments of all of the war resisters. Nor, I dare say, is anyone really technically authorized to speak on their behalf. I think the claims that we make, and the claims that the representatives of the war resisters themselves make, really speak not so much to their mind as to what it is our judgment this country owes to itself, much more than what is owes to the war resisters. It owes to itself some kind of restoration of decency, after the divisiveness and the tragedies of that war. The only factual testimony to the general accuracy of our perception of their response to the clemency program is the express judgment of the organizations of American war resisters who, from its very inception, called for a boycott of it, and their lack of response to an invitation to participate in it. As we have said, even the narrow eligibility criteria leave over 80 percent of the men as not having applied for the program; and that, as we used to say, constitutes in effect voting with your feet. It is voting with your life, indeed; and if the clemency program offered these men a decent, nonpunitive returnnot the welcome home of heroes; they have never said to anyone, to themselves, to me, or to this country, that they expect to be welcomed home as heroes-they did what they thought they needed to do in that ghastly experience of the Vietnam war. But merely a nonpunitive and decent return as American citizens who did what much of the moral and political leadership of our country said for years during the war, and that the war ought to be ended-they ended it in the only way they could, as young men in their late teens and early twenties.

So that it is both the expressed judgment of the spokesmen of that community and our judgment, and the experience of the clemency program, which made it clear that this does not constitute an amnesty. And indeed, the President in announcing the program expressed his explicit rejection of the notion of amnesty, so that I am not really charging this program with any failures that the President himself did not build into it quite openly.

Mr. KASTENMEIER. I appreciate your answer, and as one who generally subscribes to your statement. I have a feeling or a concern that we tend to, by rhetoric, overdescribe a situation where there are many

who are not motivated by the same feelings, or have the same perception, even of the effect of what they have done. And so, we have different categories of people. And then, the question may evolve to the point-well, if we cannot help all, particularly those who strongly oppose the program for what I consider sufficient reason, how about helping those who are not opposed to the program on those grounds they might feel benefited. And to that extent, it may be difficult to oppose even a very partial step toward some form of reconciliation in this regard.

May I ask you one other question? You expressed some reservations about Senator Hart's bill. What reservations do you have about Senator Hart's bill?

Mr. SCHWARZSCHILD. Mr. Chairman, may I ask Mr. Lynn to respond to it? His expertise on the legislation offered is greater than my own, I believe.

Reverend LYNN. Essentially, Senator Hart's bill covers unconditionally all of those categories of people covered by the President's own clemency program. It does not include all of the other categories of people. The largest percentage of those individuals are veterans with other than honorable discharges for reasons other than desertion.

The President's program seems to be saying, if you protested the war and then you deserted, we will give you some clemency; but if you protested the war and spent years in prison instead of deserting, we will not really give you any redress at all. And Senator Hart's bill omits some of those same categories of people.

There are, in the Senate, certain jurisdictional problems about the all-inclusive type of bill that Congresswoman Abzug has introduced into this House.

Mr. KASTEN MEIER. I would like to yield to the gentleman from California.

Mr. DANIELSON. Thank you. Mr. Chairman.

I would comment only on one point made by Mr. Schwarzschild, that a pardon has no value since some of these people have never been charged, tried, convicted, and so on. Only I wish to remind the gentleman that it has now been established that a pardon can be granted prior to trial and conviction. As of last September 9, that is part of our constitutional law.

I want to thank you for your presentation; you covered a lot of points here. Reverend Lynn, your testimony has simply reinforced my belief that although the idea of alternate service has an appeal about it. I think we hark back to the idea of penance, and I think it is useless. Anyone who wants to do some kind of community service because of conscience is not prohibited from doing so; he can go out and spend the rest of his life, if he wants, to do community service.

So I think a person who is truly conscientious can do that, and thereby salve his own conscience if it bothers him. And if it does not bother him, he is not going to do a good job at any rate.

Thank you very much.

Mr. KASTENMEIER. The gentleman from New York, Mr. Pattison Mr. PATTISON. I just have, really one comment.

I have the sense that one of the major areas of resistance to any program of universal and unconditional amnesty is the feeling that this word "resist”—people who truly need the punishment, cowards,

malingerers, the standard kind of deserter, that the person who does not face up to his responsibilities, et cetera, in the military that we have had in other wars, and that somehow, if we could really determine who resisted for reasons of conscience and could really identify those people, that that area of resistance would be gone.

But I also have a feeling that the President's clemency program, as it has actually developed to the extent that there are people who are malingerers, deserters, and so forth, cowards, has essentially addressed itself to those people. I mean, if it has helped anybody it has helped the very people that the great bulk of people who resist amnesty do not want to help.

Do you find that to be accurate?

Mr. SCHWARZSCHILD. I am not sure I quite understand the last point you made. The fundamental point you make, though, I think is quite important.

To begin with, one might say that I do not know any civilized society in which cowardice is a criminal offense that needs to be pardoned. It is, in any case-you know, to be remembered that young men, on their own when they are 17, 18, or 19 years old, who take what they know to be the very significant step for the rest of their lives of defying the might and power of the United States-to punish their act of war resistance when they do that, they can hardly be called cowards— you might disagree with the act.

Mr. PATTISON. I was not referring to those people. I was referring to people who just universally, in every army, you have-who for one reason or another, because they get angry, drunk, whatever, just take off, perhaps as a result of their immaturity, and evade their

Mr. SCHWARZSCHILD. Of course those do exist, Mr. Pattison. Perhaps it may be important to recall that the desertion rate from the military during the Vietnam era was unprecedentedly high in American history. The morale of the military service, of course, has never been lower than during that period, and the problem that arises-what agency of goverment, what tribunal, would be competent to make judgments about the personal, subjective, religious, ideological, moral, political motivations that go into an act that will, by then, lie 6 or 7 or 8 or 10 years in the past?

If something terribly important were at stake in making those discriminations, perhaps that effort might be defensible. But a test of conscience for those acts, it seems to us, is as dangerous and as futile as were the very crude determinations which I know you are aware of that were made by the Selective Service with respect to conscientious objection. And since this will not suffer any harm to the country, it would earn a great benefit from a broad amnesty which does not attempt to discriminate on the grounds of human motivation which is inevitably mixed, which is enormously complicated to analyze. I do not think that effort is ever justified in this context.

Mr. PATTISON. Pardon me. I understand all of that. What I am saying is, let us, for the purposes of our discussion here, assume that there are a certain number of people who simply decided that they did not like the first lieutenant or the first sergeant, or they were lazy, or for any reason, they had no anti-war motivations whatsoever. Let us just assume that you could determine that.

Is it not true that the people who did, in fact, leave for those reasons and there had to be some-are the ones who are the most helped by the President's clemency program as opposed to those who did, in fact, leave for conscience reasons, because there is no conscientious test, is there?

Mr. SCHWARZSCHILD. Quite so. In large part because, as you suggest, they will not be as reluctant as the committed war resisters to accepting the conditions-both tentative and debasing-which it seems to us are built into the clemency program.

Mr. PATTISON. That was precisely my point.

Mr. SCHWARZSCHILD. I understand. And if the universal amnesty would eliminate that problem, of course it would benefit-those men that you have now characterized would benefit from such an amnesty. And in light of the impossibility of making those discriminations intelligently and validly, all perhaps one ought to say is that this country ought to rely on the classical and traditionally hallowed principle that it is better that 10 guilty men go unpunished than that 1 innocent man be punished.

Mr. PATTISON. What I am trying to say is-what I hear is, if you do an unconditional amnesty and let all those bad guys go, then the clemency program should then be continued.

But is it not the truth that the clemency program basically benefits the people who, in fact, were malingerers a lot more than it is liable to benefit people who, in fact, were conscientious?

Mr. SCHWARZSCHILD. It is likely to attract in greater numbers, if at all.

Mr. PATTISON. In fact, it has. If you take the Goodell statistics, if you accept these statistics that only 16 percent of the people who have applied expressed any feelings at all of antiwar. But in fact, it is helping the very people who the public is least happy about helping.

Mr. SCHWARZSCHILD. Sir, I would be reluctant to characterize them in that way. Mr. Goodell claims they are men who left the military by reason of family complications, of personal difficulties, of ignorance, of bad counseling, and the like. And I would hesitate very much to characterize anyone who, for whatever reason, came in conflict with the law in the context of the war as someone who is self-regarding or selfish or cowardly.

The point was, that this war was as we are all aware-not accepted by the American people, and that, therefore, men who knew that, who knew a bad war when they saw one, let their own personal problems take precedence over what they could not concede was an urgent need of the Government to have them fight the war in Southeast Asia. But it is true-and there I quite agree with the implications of your question-that it is precisely the principled war resisters who will come to this clemency program, or who have come to this clemency program, in lesser numbers than those whose objection to the war, or those who, at least in their own mind, for whatever reasons. Mr. PATTISON. Thank you.

Mr. KASTEN MEIER. On behalf of the committee, I would like to extend our gratitude to both of you and to your third colleague for coming this morning. Mr. Schwarzschild and Mr. Lynn, and testifying before this committee.

While I appreciate your position, it seems to me, this subcommittee is confronted with looking down the line, and attempting to comprehend what is not only desirable to achieve in terms of legislation-if legislation is indicated-but what can be accepted by the American people through the Congress in both the House and the Senate, and presumably be passed into law by the President of the United States, if we are talking about real achievement. And that is a very great part of the difficulty confronting us as we examine the problem here this morning.

In any event, we are grateful to you.

Mr. SCHWARZSCHILD. Thank you, Mr. Chairman.

Reverend LYNN. Thank you, Mr. Chairman.

Mr. KASTENMEIER. Next, the chairman would like to call Col. Ed Miller, U.S. Marine Corps, Retired, and Mr. Gerry Condon.

Gentlemen, if you would both come forward, we would appreciate your testimony. Colonel Miller, you have a very brief statement; I would be pleased if you would read it.

TESTIMONY OF COL. EDISON W. MILLER, U.S. MARINE CORPS,

RETIRED

Colonel MILLER. Thank you, Mr. Chairman. I appreciate you allowing me to attend this committee hearing.

I was a prisoner of war in Vietnam from October 13, 1967 until February 12, 1973-5 years and 4 months. I have spent 24 years in the military service, and retired as a colonel from the U.S. Marine Corps. I am presently residing in Anaheim, Calif.

I was born in western Iowa on July 6, 1931, and placed in an orphanage until I was 5, raised by a young woman lawyer in Clinton, Iowa with several other children. I completed high school in 1949 and enlisted in the Navy.

While in the service, I was selected for flight training and commissioned a Marine Corps second lieutenant in 1951. I served in combat in Korea and Vietnam, and spent almost 9 of my 24 years of service outside of the United States.

I entered Vietnam in August 1967 as a lieutenant colonel, commanding a Marine F4B fighter-attack squadron. I was shot down and captured in North Vietnam on Friday the 13th, October 1967 while on my 70th mission. I sustained several injuries, including a broken back and a severely fractured ankle. Because of these injuries and various illnesses suffered while in prison, I was retired from the Marine Corps on 60 percent medical disability. Prior to my retirement I was promoted to full colonel.

After 22 years in prison, I spoke out in opposition to President Nixon's policy of continued war. As a result, I was censored by the Secretary of the Navy upon my return for alleged disobedience of orders and misconduct.

Although aware of the illegality and immorality of our actions in Vietnam, even before serving there, it took me several years of agonizing thought to find the courage to speak out. The Americans who clearly saw the wrongs and harmful nature of the Vietnam war, and refused to serve in or support it, are citizens to be respected, not persecuted.