Mr. CONDON. I was in the service for about 22 months before I left. The last 6 months of that I was kind of under house arrest.

Mr. DANIELSON. So you would have had about 16 months, roughly, before you came under a clouded circumstance.

Mr. CONDON. That is correct.

Mr. DANIELSON. I am still thinking of how we can resolve this discharge problem.

Thank you very much. I do not know any answers to it.

Mr. CONDON. I think the answer to the discharge question, not only in terms of the problem with resistance to the war, but in terms of just the larger question of discharges, is the institution of a single type discharge. There is really no reason for a classification system of discharges.

Mr. DANIELSON. Well, I think, Mr. Condon, if I may, the person who put in his service-I am not quarreling; I want to assume I will stipulate that you had the greatest of conscientious motivations, and I am only speaking in that context. But a person who actually did put in his service-take Colonel Miller who put in his service; he might have found it onerous at times, but he put it in. And there were thousands and thousands; I think they are entitled to some kind of a certificate, a diploma, a discharge, showing that they have done so. I think it is a matter that they might feel is an honor.

Whether they ever want to go to war again or not is one thing, but I think they are entitled to the recognition that they did fulfill the terms of service. Now in your situation, you were dissatisfied with the service, and that is why I want to ask these questions. You are a person with firsthand knowledge.

Would you have not felt better if you could have withdrawn, if you could have resigned, if you could have voluntarily left the service after you had completed, let us say, that 16 months? It was impossible for you to do so, but suppose there were laws-and that is what we are concerned with here; we pass laws-suppose the laws of the land would have made a provision which would have enabled you to withdraw voluntarily from the service without the stigma of a dishonorable, under less than honorable, and so forth, circumstances. You do not have to be classified, you could just say, I resign.

Mr. CONDON. Right.

I would most certainly have welcomed such an opportunity. I think in that regard that it is important that the laws of this land recognize what has been called selective conscientious objection, if you will. The fact that people can have very, very serious conscientious opposition to a war without being absolute pacifists, as the present conscientious objector laws require.

Mr. DANIELSON. Well I do not know whether I can buy that. I think you either are or are not a conscientious objector. However, I will recognize-now I have had enough military service, not a great deal, but enough to know that if I had a person in my company that did not want to be there, who was really, therefore, not psychologically reliable as a 100-percent member of my company, I would rather they be in some other company, someplace. In fact, I would rather they go home.

I would want the people in my outfit who were gung-ho on the thing, because I cannot think of a more unsatisfactory thing to morale if

there are one, two, or three members of the unit who really are notso I think we have been remiss in passing our laws, and do not provide the means for people to get out after they have gotten in and they find that they are emotionally, psychologically, or whatever, unsuited. We do have a provision if they are physically unsuited; they can get out. But if they are psychologically unsuited-and what the heck is part of your physique than part of your brain, your psyche, if you are not suited for it, by intellectual interests, or whatever. Get out; leave it to those who can stay in.

I am kind of preaching here, but I think maybe we are touching on something of value. We would not have 118,000 people in this problem if there were a way out, rather than just walking away.

Mr. KASTEN MEIER. The Chair would like to thank Mr. Gerry Condon and Col. Ed Miller for their appearance before the committee today, and I would say, if you do develop a model bill for universal unconditional amnesty, the committee would be happy to have it and your continuing views on the question.

Thank you both, very much.

Colonel MILLER. Thank you, sir.

Mr. CONDON. Thank you, sir.

Mr. KASTEN MEIER. At this late hour, nonetheless, we want to apologize to our next witness, Mr. Thomas Alder, who is president of the Public Law Institute and is accompanied today by Mr. John Schulz and Ms. Susan Hewman.

We did add an extra witness today, Mr. Alder. The Senator from Michigan who could not come yesterday. I think it has delayed us somewhat in reaching you. We are grateful for your dedication, and we appreciate your appearance here this morning.

The prepared statement of Thomas P. Alder follows:]

STATEMENT OF THOMAS P. ALDER, PRESIDENT, PUBLIC LAW EDUCATION INSTITUTE Mr. Chairman and members of the subcommittee, I am Thomas P. Alder, and attorney and President of the Public Law Education Institute, 1346 Connecticut Avenue, N.W., Washington, D.C. 20036. The Institute is a public interest legal research and information center, founded in 1968. From that year until the spring of 1974 it published the Selective Service Law Reporter. Since mid-1973 the Institute has also published the Military Law Reporter, covering a wide range of military law and individual rights developments. Each of these periodicals has issued between 1,000 and 1,500 pages a year, and constitutes the specialized journal of record in its field.

I am pleased to respond to your invitation to testify concerning the President's clemency program, the alternatives presently available outside the program, and to comment on specific features of the two Senate-sponsored bills now under your consideration. In view of the short time available for the preparation of my testimony, and to give you the best possible description of the situation as it exists outside the scope of the Clemency program, I have asked two attorneys with very special expertise in draft and military law to join me at the witness table. Their prepared statements are included with mine.

Miss Susan Hewman is staff attorney with the Military Rights Project of the ACLU Foundation, and a co-author of the Manual on Discharge Upgrading and Review. The Military Rights Project has a present caseload of 200 veterans whose petitions are pending before Discharge Review and Correction Boards, of which approximately half are hers. She also conducts seminars and training courses in the practice of discharge upgrade law throughout the country.

John E. Schulz has been a senior Editor with the Public Law Education Institute since joining the staff in 1970. He was Editor-in-Chief of the Selective Service Law Reporter for three years, and helped form the Military Law Reporter, which he has edited since its inception in 1973. He has had day-to-day contact with

draft law issues during this entire five-year period, and has previously testified to Senate Committees on the practices of the Selective Service System and the Justice Department during the Vietnam era.

OUTLINE OF TESTIMONY

Mr. Chairman, this final segment of today's testimony covers several subjects which have also been touched on by previous witnesses. So that you will know how we are proceeding, let me briefly outline our intended course. I will first provide further clarification of the Justice Department's role in the Clemency program, including a discussion of the "final list", how it was arrived at, and what we have learned from its use by private organizations since its release. Then Mr. Schulz will discuss the options open to those currently under indictment, and, importantly, he will describe the urgent need to deal specially with the thousands of alleged violators who have never been told that they are free of legal jeopardy. He will also provide additional information on the non-registration and late registration cases which are not covered by the final list. Miss Hewman will, in turn, discuss alternative remedies for in-service offenders, including those who have received administrative discharges, and those who have participated in the President's program to the point of being separated with an undesirable discharge. This discussion will also extend to those who have already applied to the Clemency Board, and who have remaining options in other forums. Following this, I will relate a persistent and important problem in the Selective Service System's conduct of the Reconciliation Service Program, and conclude with a critique of the two Senate bills.

JUSTICE DEPARTMENT'S INTEREST AND ROLE IN CLEMENCY PROGRAM

Mr. Chairman, although the enrollment period for the Justice Department's Clemency program has ended, this component deserves a further retrospective at this point in the hearings for two reasons. First, it is the only part of the President's program in which the threat of resumed criminal prosecution hangs over those who have signed alternate service agreements. This contingency means that directives issued by the Selective Service System, and the actions taken under them, are reinforced by penal sanctions for non-compliance in the case of all those participants referred to the Reconciliation Program by Justice. As a consequence, very real issues of due process and procedural safeguards have arisen and will arise within the alternate service program as long as men are enrolled in it who risk a felony conviction if they are found to be out of compliance. Since most Justice Department agreements are for terms of 19 to 24 months, this class of enrollees will be in the program for the greater portion of its duration. The Selective Service System has not been adequately responsive to this consideration in the way it has set out and amended the rules governing the alternate service program, a point I will return to in greater detail toward the end of my presentation.

The second reason to examine the Justice Department's record of the past few months is to assess what its role would be under S. 1290. As you know, that measure as presently drafted would remove jurisdiction over pending draft cases until December 31, 1976, the termination date for the Board prescribed by the original executive order. If this bill were to be enacted with the original termination date intact, many cases would eventually fall within the residual jurisdiction of Justice. Before this prospect is either endorsed or dismissed out of hand, some attention should be paid to Justice's past record and to an appreciation of its basic interest in participating in any variant of the current clemency program. The first thing to be said about the Justice Department's record over the past six months is that both the Department and those eligible under its program have understood very well that this "clemency" has been a species of prosecution and punishment, not of amnesty. It was frankly characterized as a pretrial diversion program at the beginning by the Deputy Attorney General who announced it, and this characterization has been widely, even instinctively, understood by the men who declined to participate in it, as well as a growing segment of the public. I think that many of us who were initially alarmed at the risk of entrapment and lack of due process contained in the unpublicized directive guiding this program missed the real point: Thousands of men made their own clear and probably thoughtful decisions against enrolling without knowing more than they saw in newspapers or heard from friends.

As the final figures show, few men were tempted to approach the Justice Department under this program. On the record of the early 1970's I think it is entirely possible that more than the 686 who enrolled would rather have volunteered for induction into the Army if that had been open to them.

To understand why the Department has had an active interest in this program, and further why its record was not altogether one of prosecutorial fervor, it is important to note how the advent of the program solved a genuine problem for the Department. Prior to July 1, 1973, when induction authority expired, prosecutors had a powerful device for resolving draft cases without the expense and exposure of trial: they could offer an indicted defendant the option of accepting induction in lieu of prosecution. This option was frequently exercised, a point the Department has stressed in last year's hearings and again here on Monday in an effort to show that its conviction rate is an inadequate measure of its prosecutorial success. Through the use of this induction offer the Department cleared many cases which would have added to its backlog, and of these a significant fraction would have been difficult to try. By resolving these cases without judicial scrutiny, the Department was able in some measure to bury its failures and simultaneously to note in successive annual reports that its main achievement under the draft law had been to provide men for the military manpower pool.

When the induction authority expired on June 30, 1973, the Department lost its principal pretrial diversion option in draft cases. Two or three thousand men under indictment at that time who might earlier have been candidates for induction instead of trial no longer could be offered this election. The Defense Department declined a Justice Department request to establish a follow-on enlistment program, and within seven months it also barred the enlistment of men who were under investigation but not yet indicted. Thus, in the second quarter of 1974 the Department had a draft caseload of around 6,000 and no real alternative to trial or dismissal to cope with it. Firm directives from Washington to prosecute these cases with dispatch did little to reduce the balance. What the Department needed most was another pretrial diversion program; the planning for the President's Clemency Program offered that opportunity, and it was quickly exploited.

Against this background of the Department's earlier practice, the public record should note that officials of the Department, particularly the Internal Security section of the Criminal Division, were often receptive during the last six months to reasoned approaches from those of us on the outside. In particular, Rev. Lynn and I found the Division actively receptive to our three major recommendations. The first was that the Department order a nationwide review of all pending draft cases instead of woodenly resisting court directed file inspections in the few districts where these had been ordered. This was formally directed by the Attorney General on November 13th and resulted in the closing of approximately 1.700 pending cases, or 27% of the outstanding total.

The second recommendation, following logically from the first, was that a final list be prepared after this review, and if possible conveyed to responsible counselling groups which already had used an earlier but inaccurate list released in October on the request of Rev. Lynn and the ACLU. The expectation on the government's side was that distribution of this list to non-official agencies would result in an increase in participation in the President's program. This expectation was founded on the experience with the October list, which showed that potentially eligible men, many thinking they were fugitives, would not contact any government agency about their status, but would make calls to known counselling organizations.

Our third recommendation was that the Department either abolish the infamous "section 10" procedure or amend it to provide Miranda warnings and to eliminate the patent risk of uncounselled self-incrimination. This provision, buried in the Department's directive covering the clemency program, was apparently aimed at getting agreement from those who were not subject to investigation but who admitted to a violation in the course of an inquiry about the program. This was understood by the counselling and legal community to be a dragnet device to trap the unwary and actually commence new cases-an anxiety reinforced by the Attorney General who stated publicly that he would not abandon the provision. Section 10 was used as we had feared in a small number of cases. However, the operating branch of the Department did meet our complaint by first assuring us that the provision was intended only for previously unknown nonregistration cases, and by later going beyond this assurance to essentially override the section by routinely referring all non-registration cases to Selective Service for an

initial determination of prosecutive merit. In short, the lower echelons of the Department had substantially complied with a request which the Attorney General felt he had to openly decline.

The lesson I draw from these three episodes is that the Justice Department demonstrated laudable flexibility on those occasions when the nature of the request was consistent with the Department's interest in closing cases without losing them. Only in the case of Attorney General Levi's commitment to abandon cases inadvertently left off the final list by clerical error did the Department make a major concession against prosecutorial interest. Had not Senator Kennedy been the godfather and guarantor of this effort to have this list treated as final I have some doubt that any such commitment would have been kept in the hard cases of inadvertent omission.

The implication of these events for S. 1290 are mixed. On the one hand, this bill is obviously an improvement in vesting the Board with jurisdiction over cases of alleged violators, thereby taking refuge in the earlier and wiser design of Senator Taft's proposal. It is a comment on the limits within which a President may be able to use his constitutional pardoning power that the Ford program sacrificed this design to the narrower and non-clement needs of the Justice Department. I for one feel this aspect of the President's program erodes the strength and the legitimacy of Senator Goodell's argument that the President's constitutional power precludes Congress from granting broad amnesty.

On the other hand, where S. 1290 is most defective and puzzling is in the provision remanding all outstanding business of the Board to the Justice Department. This entails a long catalogue of detailed problems, including the fate of records now solicited by the Clemency Board on assurances of confidentiality. On a more general level, it is simply inconsistent to lift the Department's jurisdiction over pre-trial cases until 1977, because of a critical assessment of its performance, and then suddenly to turn all pre and post conviction cases back to the Department. There will be instances of uncompleted alternate service agreements among the remanded matters. Some will be treated as pretrial diversion cases and others as analogous to conditional pardons for convicted offenders.

In both instances it is unlikely that the Department would abandon its basic perception of the clemency issue: that the most compelling consideration of equity is to see that the punished are not defamed by too-lenient treatment of the yetunpunished. In this frame of reference the important factors are the penal sanctions of the past, not the motives underlying individual actions or the considerations of even a rhetorical policy of national reconciliation. This unimaginative provision of S. 1290 is the prescription for a retrogressive final stage in the program; it would also be a potential deception of those who enter alternate service thinking they would be under the ultimate auspices of the Clemency Board, but whose satisfactory completion would be determined by the Justice Department.

THE FINAL LIST OF THOSE SUBJECT TO PROSECUTION FOR CLEMENCY-ELIGIBLE OFFENSES

One important measure of the scope of the Amnesty problem has been the reaction to the release in late January of the so-called “final list". This 400 page document was actually three series of lists, setting out those respectively under indictment, complaint, or investigation for clemency-eligible offenses on January 20, 1975. The lists were prepared in Washington on the basis of submissions by local U.S. Attorneys. These, in turn, came only after the 60 day review period at the end of the year in which 1,700 cases were dropped. The most significant omissions from the offenses covered were: 1) those occurring outside the clemency period, meaning for practical purposes after March 28, 1973; 2) all cases of late or nonregistration not then the subject of an indictment or investigation; 3) offenses such as draft card destruction not covered by the Proclamation; and 4) those subject to exclusion under 8 U.S.C. § 1182 (a) (22).

Unintentionally, or through error of judgment, a number of names were omitted from the list. In one case the error was very substantial-over 20 names dropped in transcription. In several other instances the local Assistant U.S. Attorney omitted from his submission the name of someone who had an alternate service agreement under advisement, even though this was technically an erroneous decision since indictments remain pending during alternate service. Despite opposition in the Department and by U.S. Attorneys in the field, the Attorney General after some delay ruled unambiguously that the Department would stand