cult matter of proof to prove in the negative. And that, if it were not bad enough, is compounded, in my judgment, by the constitutional right of the defendant to remain silent and not have to testify to that question of whether his objection was principled or not. Without really being experienced in any deep way in matters of how a prosecutor brings about proof of a negative in a military court, I can imagine that it would be extremely difficult to operate that section, and I think that although there is a loss obviously in reversing the burden of proof, it would be a great improvement of the bill in terms of its general acceptability since this provision is so vulnerable, if the question of principled objection were to be made an affirmative defense, where I think it would more fairly rest. I mean, after all, how many UCMJ cases of all those that have started are going to raise the issue of a principled objection? Not that many. If all cases required the prosecutor to prove that the act in question was not on a principled objection, he is going to have an awful time. A canny defense counsel is not going to waive the issue; he is not going to stipulate it was not a matter of principled objection. I just think that is a provision which is needlessly and tenaciously adhered to in this bill which would cause people who are not sympathetic to it and for other reasons to find something, I think quite rightly, that is very questionable and perhaps innocent of the facts of, you know, UCMJ life in one sense. That is the last comment I will make on the Hart bill. Mr. KASTEN MEIER. Thank you, Mr. Alder. We have certain other questions but I think it might be more useful to put them to you in letter form and we can append them to the hearings, given the lateness of the hour. I wish to convey the gratitude of the committee for your appearance this morning, Mr. Alder, Ms. Hewman, Mr. Schulz, and for your contributions to our deliberations. And with your testimony the hearings on the question of the President's clemency program and amnesty conclude. [Whereupon, at 1:35 p.m., the subcommittee adjourned, to reconvene subject to the call of the Chair.] ADDITIONAL MATERIAL SENATE BILL 1290, THE CLEMENCY BOARD REORGANIZATION ACT OF 1975, BY HON. GAYLORD NELSON AND HON. JACOB JAVITS 94TH CONGRESS 1ST SESSION S. 1290 IN THE SENATE OF THE UNITED STATES MARCH 21 (legislative day, MARCH 12), 1975 Mr. NELSON (for himself and Mr. JAVITS) introduced the following bill; which was read twice and referred to the Committee on Government Operations A BILL To reorganize the Clemency Board, the Department of Defense, the Department of Justice, and the Department of Transportation to provide fair and efficient consideration of all individuals eligible for amnesty relating to military service in the war in Southeast Asia, and for other purposes. 1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 3 That this Act may be cited as the "Clemency Board Reor4 ganization Act of 1975". 5 REORGANIZATION OF THE PRESIDENTIAL CLEMENCY BOARD 6 SEC. 2. The Presidential Clemency Board created by 7 Executive Order 11803, dated September 16, 1974, is 8 hereby established by law and reorganized to assume such II 58-201-75--16 2 1 responsibilities and powers granted to it by this Act and is 2 directed to execute such responsibilities and powers in a 3 manner consistent with the provisions of this Act. The Board 4 shall be composed of nine members to be appointed by the 5 President, one of whom shall be designated by the President 6 to serve as Chairman. 7 8 9 REORGAN ATION OF EXECUTIVE DEPARTMENTS AND AGENCIES AND TRANSFER OF POWERS SEC. 3. (a) n jurisdiction, responsibility, or function 10 which the Department of Defense has with respect to any 11 draft evader or military deserter, as defined by this Act, 12 under any law, regulation, Presidential proclamation, or Ex13 ecutive order, shall be transferred to the Presidential Clem14 ency Board. The Department of Defense shall thereafter be 15 relieved of all such jurisdiction, responsibility, or function, 16 except as may otherwise be provided for by this Act. 17 18 19 (b) Any jurisdiction, responsio nor function which e Depart en o Justice has with respect to any draft acer or ilitary deserter, as defined by this Act, under 20 any law, regulati n, Presidential proclamation, or Executive 21 order shall be transferred to the Presidential Clemency 22 Board. The Department of Justice shall thereafter be relieved 23 of all such jurisdiction, responsibility, or function, except as 24 otherwise be provided for by this Act. may 3 1 (c) Any jurisdiction, responsibility, or function which 2 the Department of Transportation has with respect to any 3 draft evader or military deserter, as defined by this Act, 4 under any law, regulation, Presidential proclamation, or Ex5 ecutive order shall be transferred to the Presidential Clemency Board. The Department of Transportation shall there7 after be relieved of all such jurisdiction, responsibility, or 8 function, except as may otherwise be provided for by this 9 Act. 10 THE FUNCTIONS OF THE PRESIDENTIAL CLEMENCY BOARD 11 SEC. 4. (a) The Board, under such regulations as it may 12 prescribe, shall examine the cases of all draft evaders and 13 military deserters who apply for Executive clemency. 14 (b) The Board shall report to the President its findings 15 and recommendations as to whether Executive clemency 16 should be granted or denied in any case. If clemency is rec17 ommended, the Board shall also recommend the form that 18 such clemency should take, including clemency conditioned 19 upon a period of alternate service in the national interest. In 20 recommending any period of alternate service, the Board 21 shall consider, among any other factors it deems appropriate, 22 any prison term, or part thereof, or other punishment which 23 the individual has served or endured for any offense specified 24 in subsection (a) or (b) of section 14 of this Act. In the 25 case of an individual discharged from the Armed Forces with |
