tions an individual who never registered for the draft, and he comes in now and says I should have registered in 1968 and I did not; I would like to sign up under the clemency program. In those situations the U.S. attorney sends him to the Selective Service Board. The Selective Service Board reviews the facts and, if they determine that it is an appropriate case for prosecution, they send the file over to the U.S. attorney for prosecutive opinion.

Mr. LEHMAN. OK, thank you. That answers my question. I have one further question and that relates to aliens.

The President's Executive Order 11803 eliminates from consideration for clemency individuals who would be precluded from entering the United States under title VIII, United States Code, section 1182. These are people who departed from, or remained out of, the United States to avoid or evade training or service in the Armed Serives.

Now, I assume that classified among those people are some who left the United States prior to ever being indicted, for example, for a Selective Service offense. They have left the United States; they have taken up citizenship abroad and renounced their American citizenship.

Could you explain how you make the determination as to whether an individual left the United States to avoid training or service in the Armed Forces?

Mr. MARONEY. We do not make such a determination. You are talking about expatriation.

Mr. LEHMAN. A person who left the United States, say, prior to being actually indicted for a Selective Service offense but who, in so doing, actually ended up avoiding training and service in the Armed Forces. As I understand it, they cannot come back into the country, even for a visit.

Mr. MARONEY. That is not my understanding. My understanding is that the provision of the immigration laws that I think you are referring to was held unconstitutional a number of years ago.

Mr. LEHMAN. So, such people are not excluded from coming into the United States?

Mr. MARONEY. Except that your fact situation brings in some com plicating factors. You assumed an individual who renounces his American citizenship and became a citizen of a foreign country.

Mr. LEHMAN. That is right.

Mr. MARONEY. That is different. That is a different provision of law. Now, of course, he is an alien, and under the immigration laws he is inadmissible and will be stopped at the border and given a hearing by the Immigration Service on the question as to whether he is eligible for readmission to the United States.

With respect to somebody who left under those circumstances, or even someone who was indicted and left but just went up to Canada and stayed there 3 or 4 years but did not renounce his American citizenship, or did not become a Canadian citizen, he is not inadmissible, as I understand it.

Mr. LEHMAN. But the people who did renounce American citizenship are inadmissible.

Mr. MARONEY. That is right.

Mr. LEHMAN. And, as I understand it, also, am I correct in saying that they are also ineligible for the clemency program, should they decide to change their mind and return to this country?

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Mr. MARONEY. That is right. The proclamation carves them out as an exception, and that is because of the inadmissibility requirements of Congress.

Mr. LEHMAN. So if Congress would like to change that policy, you think they could do so by changing the immigration laws, rather than by any grant, say, of amnesty?

Mr. MARONEY. I am sure they could.

Mr. LEHMAN. Thank you.

Mr. KASTENMEIER. The gentleman from Massachusetts has another question.

Mr. DRINAN. One last question, Mr. Maroney. What is the position of the Immigration officials? I do not think this was taken up by Mr. Lehman. What do the Immigration officials do with regard to warresisting aliens who are not charged with violation of the draft law? Mr. MARONEY. When they come back to the United States?

Mr. DRINAN. Yes.

Mr. MARONEY. They admit them, I assume. War-resister aliens? Mr. DRINAN. Yes.

Mr. MARONEY. I really do not know. I suppose they admit him if he comes within the certain classes that are admissible.

Mr. DRINAN. Well, it is my understanding that Immigration is not admitting them.

Mr. MARONEY. Just on the basis that he is a war resister?

Mr. DRINAN. Yes.

Mr. MARONEY. I would doubt it, Congressman.

Mr. DRINAN. Well I have information. I would be interested if you would arrange for the Immigration and Naturalization Service to furnish for the record a full statement how they handle this matter. Mr. MARONEY. I will discuss it with the General Counsel.

Mr. DRINAN. Thank you.

Mr. MARONEY. Might I also, if you would just give me one minute, on the constitutional issue which we discussed earlier, and the chairman, I think, indicated we had a wholly negative attitude, and actually I hope it was not, and it is not a dogmatic attitude either; but with respect to pardoning an individual who has been convicted, we think it is indisputably clear that such a situation comes solely within the President's powers under the Constitution. With respect to an individual who has not been convicted, I think that the legal situation is less clear, and it is so by virtue of dictum in the case of Brown v. Walker, the Supreme Court case, in which the Supreme Court indicated that some

Mr. DRINAN. Mr. Maroney, if I may intervene on that, your guy said to Mr. Ulman, why does he say that in Brown v. Walker that is dictum. He could not give me an answer then. Why do you say that we, whoever we is, it is like the royal we, why do you say that it is dictum when very important scholars say it is not dictum?

Mr. MARONEY. It is a statement that the Court did not have to make to arrive at the decision it made.

Mr. DRINAN. Well, that is what dictum is, but does it prove it is dictum?

Mr. MARONEY. What was involved in Brown v. Walker was on immunity provision and, of course, Brown v. Walker does not involve the only statute that has immunity provisions. We have many other im

munity provisions. We have immunities that we use now; we also have an immunity provision which Congress can use through the mechanism of going to a court to get an order requiring the testimony, but most of the immunity situations give a voice in the process to the executive branch and, of course, they are matters that are dealt with on a case-by-case basis. As to whether or not an immunity is given to a particular witness

Mr. DRINAN. Well, I do not want to press this point too much, but many serious constitutional scholars, Professor Freeman of Cornell Law School, and many, many others, say that at least Congress has a concurrent jurisdiction on amnesty and that you people take the very doctrinaire view that we have absolutely no power, and I do not think you can justify that. I yield back to the chairman.

Mr. KASTENMEIER. Well, in any event, I think that question cannot be decided here today; nonetheless, the committee appreciates the appearance of Mr. Maroney and his help today, and this concludes today's testimony on the question of amnesty and the Presidential clemency program.

The subcommittee will resume hearings on Thursday next at 10 o'clock in the morning, I believe, in this room, at which time we will hear from Senators Nelson, Javits, and Hart, and on the following day, Friday, we will hear from a number of other individuals and organizations who are interested in this question.

Until next Thursday, the subcommittee stands adjourned.

[Whereupon, at 4:10 p.m., the subcommittee adjourned, to reconvene at 10 a.m. on Thursday, April 17, 1975.]

THE PRESIDENTIAL CLEMENCY PROGRAM

THURSDAY, APRIL 17, 1975

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES, AND

THE ADMINISTRATION OF JUSTICE, OF THE

COMMITTEE ON THE JUDICIARY, Washington, D.C. The subcommittee met, pursuant to notice, at 10:15 a.m., in room 2141, Rayburn House Office Building, Hon. Robert W. Kastenmeier [chairman of the subcommittee] presiding.

Present: Representatives Kastenmeier, Danielson, Drinan, Pattison, and Railsback.

Also present: Bruce A. Lehman, counsel; Timothy A. Boggs, legislative assistant; and Thomas E. Mooney, associate counsel.

Mr. KASTENMEIER. The subcommittee will come to order this morning for the purpose of continuing our hearings on the question of amnesty, including the administration of the President's clemency program, and also the question of legislation affecting amnesty.

This morning we are very privileged to have from the Senate two old friends of many members of this committee and this body, Senator Gaylord Nelson of my home State, and Senator Jacob Javits, of the State of New York, both of whom are most welcome.

Senators, would either-Senator Nelson, would you like to proceed, and you may do so as you wish. If you have a prepared statement, or if you care to submit a statement for the record and then summarize your point of view.

[The joint prepared statement of Hon. Gaylord Nelson and Hon. Jacob Javits follows:]

JOINT STATEMENT OF HON. GAYLORD NELSON AND HON. JACOB JAVITS

The time has come for Congress to take further steps to heal the deep wounds inflicted on our nation by the long and bitter war in Vietnam. Specifically, Congress should support and extend the President's amnesty program for the thousands of young men who evaded the draft or deserted the military during the Vietnam conflict. We have therefore introduced legislation for that purpose. The need for immediate action on this legislation is clear. Last September, President Ford took the constructive step of establishing a program to provide amnesty for thousands of young men who, for one reason or another, felt compelled to refuse the draft or desert the military during the Vietnam War. In creating that program, the President recognized, as we all should, that the interests of society are served best when its system of justice reflects a good measure of understanding and mercy. The President spoke of this national need last summer when he announced his intention to issue an amnesty program:

All of us who served in one war or another know very well that all wars are the glory and agony of the young. In my judgment, these young Americans should have a second chance to contribute their fair share to the rebuilding of peace among ourselves and with all nations.