of the "Notice of Availability" published on January 16, 1975, is such notice adequate to give legal force and effect to those portions of the RSM which have general applicability and legal effect? In particular, does the "Notice of Availability" suffice under the requirements of 1 CFR §§ 1.1 and 5.2, and the provisions of 5 USC § 552 and 44 USC §§ 1505 (a) (2) and 1507?

For the purpose of this inquiry it is granted that the provisions of the RSM having general applicability and legal effect, and all amendments thereto, bind individuals personally served with its provisions. Excluding this mode of publication, does the Register find the "Notice of Availability" (annexed to and discussed in my March 18th letter, and further discussed in point two of my March 25th letter) as a proper form of Incorporation by Reference, or as any other form of legally sufficient publication?

I hope this clarification will assist you in reaching a determination of the issue presented in this request.

Sincerely yours,

THOMAS P. ALDER, President.

On the evidence to date, committees having legislative oversight functions should be alerted to the dangers of maladministration in the Reconciliation Service Program. While these may appear rooted in the September 16 delegation to the agency, the senselessly tight public information policy has more distant and deeper origins, and would not vanish solely because the executive order was rescinded or amended. In reviewing legislation involving an alternate service requirement, the subcommittee might consider a reporting system for enrollees and employers involving less agency intrusion altogether, whether Selective Service or the Employment Service was the designated operating authority.

COMMENTS AND ANALYSIS OF S. 1290 AND THE NATIONAL RECONCILIATION

ACT OF 1975

Mr. Chairman, in the time remaining I would like to respond to your request for comments on the Senate-sponsored bills before the subcommittee. These remarks will be selective, brief, and possibly too exacting of the draftsmen. Nonetheless, I think the points raised represent either important problems of clarity or serious deficiencies with possibly adverse legal consequences. S. 1290.

Section 2. In its conception this bill represents a potentially larger breach of the separation of powers than any of the Congressional measures resisted here by government witnesses on the grounds of this doctrine. These problems are not solved legally by securing White House agreement not to raise them, although such acquiescence may make the problem seem temporarily insubstantial. Before passing over the issue as moot the subcommittee might consider that the effect of this bill is to convert a Presidential Advisory Committee established to assist the President in the exercise of his pardoning power, into a hybrid creature of Congress and the President. Moreover, while the bill leaves the Board's term of duration intact, it considerably alters the substantive provisions of the Board's mandate. This is incongruous, since one arguable reason for giving the Board the sanction of public law would be to lengthen its term.

Section 3 (b). This section is presumably intended to reach draft cases under the authority of the civil courts, i.e. indicted cases and those on court supervised release. The language used can technically be read to reach only those cases in which the Justice Department has not obtained an indictment. To go farther, the provision might either directly address the jurisdiction of the U.S. Courts, or provide direction to the Justice Department to reacquire jurisdiction by seeking dismissal of pending indictments.

Section 4(a). As a matter of policy and clarity it should be stated here or elsewhere that the Administrative Procedure Act provisions on promulgation of regulations either apply or do not. In view of the Board's mixed origins, a failure to provide a term covering this issue will guarantee later dispute.

Section 4(b). See the prepared statement of Ms. Susan Hewman. Section 4(d). By limiting the auspices under which alternate service would be conducted to departments or agencies, the bill may suggest that the Board cannot become, wholly or in part, its own operating organization. Use of a broader term, such as governmental unit or organization would avoid this ambiguity.

Section 5(c). The provision: "if he otherwise qualifies for such a visa" appears to allow the application of 8 USC Section 1182(a)(22) to exclude members of the class who are intended to benefit from this provision.

Section 6. Renunciation of U.S. Citizenship does not always accompany the acquisition of citizenship in another country. If the provision read "renounced his United States citizenship or acquired the citizenship of another country," the intent of the statute would be preserved and would extend to the desired scope of coverage.

Section 8. See the prepared statement of Ms. Susan Hewman.

Section 12. This section in its brevity raises many policy questions which call for its expansion and clarification. Another is the propriety of remanding to the Justice Department men who have not been discharged from the armed services. If it is intended that the discharge occur when the case is first transferred to the Board under Section 3, this should be clarified.

Section 14(a) (b). The terms "draft evader" and "military deserter" are employed here to cover both the convicted and unconvicted. This is a breach of propriety regarding unconvicted defendants which no statute, least of all a clemency law, should perpetuate.

Section 14 (d). The bill uses the term "create" to describe its operative effect on the existing Clemency Board. In contrast, Section 2 states that the Board was created by the executive order, and is "established by law."

THE NATIONAL RECONCILIATION ACT OF 1975

As presently drafted, this bill has one provision which will cause inordinate difficulty with only modest compensating gain. Section 3(b) provides that in any future court martial the prosecution must establish as an element of the crime that the act was not related to the individual's principled objection and was not a crime against person or property. The second of these two elements is readily proved by direct evidence. The question of an Act's relation to principled objection is, however, a more elaborate matter to prove in the negative. This problem is enormously compounded by the right of the defendant to remain silent. Recognizing the burden that the change I suggest would impose on the defendant, I think it would be preferable to require the element of principled objection to be raised as an affirmative defense rather than to insist the prosecutor negative in every case the presumption that the alleged crime sprung from a principled opposition to service.

Mr. Chairman, this concludes our testimony. We thank you for your attention and hope that our contribution has added in some measurable way to the value of these very timely hearings.

TESTIMONY OF THOMAS P. ALDER, PRESIDENT, PUBLIC LAW EDUCATION INSTITUTE, ACCOMPANIED BY SUSAN HEWMAN AND JOHN E. SCHULZ

Mr. ALDER. Thank you, Mr. Chairman.

I want to thank you especially for this opportunity to appear. As you have indicated to the subcommittee, I am Thomas Alder, president of the Public Law Education Institute, which publishes the "Selective Service Law Reporter," and the "Military Law Reporter."

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. We will submit our prepared statements for inclusion following our testimony in the record.

Ms. Susan Hewman is staff attorney with the military rights project of the ACLU Foundation, and a coauthor of the "Manual on Discharge Upgrading and Review." Her project has a present caseload of 200 veterans, of which approximately half are hers.

Mr. Schulz, to my left, has been a senior editor with the Public Law Education Institute since joining the staff in 1970. He was editor-inchief of the "Selective Service Law Reporter" for 3 years and helped form the "Military Law Reporter," which he edits.

Mr. KASTEN MEIER. Was he a successor to Mr. Tiger, Michael Tiger? Mr. ALDER. There were two intervening editors. He was a remote successor to Mr. Tiger, yes.

Mr. Chairman, we are going to proceed roughly following this outline. I will try to clarify the Justice Department's role in the clemency program a little further, and then Mr. Schulz will discuss the options open to those currently under indictment, and, I think importantly, he will describe the urgent need to deal especially with the thousands of alleged violators who have never been told that they are free of legal jeopardy. This is a very large class and one that is frequently overlooked in discussions of clemency and amnesty.

Ms. Hewman's statement, which we will submit for the record, is in some respects the most important of the written statements because it deals for the first time in a really expert analysis in these hearings with the largest class of those subject to the clemency program, the military absence offenders. I particularly hope that if we do not have a chance to go on with it, you will at least have a chance to read it. She is here to respond to questions. Perhaps Mr. Danielson might want to direct some to her because she has particular expertise in the field to which his more recent questions have been directed.

Mr. Chairman, although the enrollment period for the Justice Department's clemency program has ended, this component deserves further attention 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 noncompliance in the case of all of those participants referred to the reconcilation program by the Department of Justice.

As a consequence, very real issues of due process and procedural safeguards have arisen, and will continue to 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. I will return to that later, if we have a chance, in some detail. I note that the matter which was before this subcommittee on Monday, the question of the revocation of the provision regarding creditable time served by those in alternate service, which the director, Mr. Pepitone discussed, raises this issue once again.

In a letter of April 11 to Mr. Schwarzschild noting that this revocation has occurred, he comments in passing, "as you know, participation in the Reconciliation Service program is voluntary." It simply is not true. I think that is an oversight, perhaps unintentional on the

part of Selective Service. But in fact there are criminal sanctions undergirding participation in the program, because if someone fails to complete or fails to comply, the consequence for him is a resumption of the criminal prosecution, a felony charge which could result in up to 5 years of imprisonment.

Another reason to examine the Justice Department's record in the past few months during this program is to assess what role it would play under S. 1290, the Nelson-Javits bill. As you know, that measure as presently drafted, would remove jurisdiction over pending draft cases until December 31, 1976, from Justice, the termination date for the Board prescribed by the original Executive order issued last September by the President.

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, I think 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 6 months is that both the Department and those eligible under its program have understood very well that this particular 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 have 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 in the clemency program would rather have volunteered for induction into the Army if that election had been open to them after October of this last year.

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 meas

ure to bury its failures and simultaneously to note in successive annual reports that its main mission and 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. And 2,000 or 3,000 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 further, within 7 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 as devices to cope with it. Firm directives from Washington to prosecute these cases with dispatch did little to reduce the balance. What the Department concluded it 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 6 months to reasoned approaches from those of us on the outside. In particular, Reverend 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 solely resisting court-directed file inspections in the few districts where these had been ordered. This was formally directed by the Attorney General on November 13, and resulted in the closing of approximately 1,700 pending cases, or 27 percent of the outstanding total.

The second recommendation, following logically but slowly, I might add, from the first, was that a final list be prepared after this review, and if possible conveyed to responsible counseling groups which already had used an earlier but inaccurate list released in October on the request of Reverend Lynn and the ACLU. The expectation on the Government's side was that distribution of this list to nonofficial 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 counseling 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 uncounseled self-incrimination by applicants to the program. The Department did meet this complaint, finally, first by 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 nonregistration 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.