also provides for mitigation of punishment. There are no provisions in H.R. 2167, 10979 and 10980 on the effects of amnesty, as indeed these bills do not even use the term amnesty, except in their titles and, in H.R. 10979, in the name of the commission. Instead, the bills provide for three specific types of benefits, i.e. immunity from prosecution, dismissal from pending proceedings, and release from prison.

7. Restoration of Citizenship

H.R. 236, 10979 and 10980 provide that upon petition to any United States District Court, the court shall fully and unconditionally restore citizenship to any former citizen who states that he renounced his citizenship solely or partly because of disapproval of United States involvement in Indochina. H.R. 674 authorizes the President to restore citizenship to any person who has relinquished citizenship solely or partly because of disapproval of United States participation in the Vietnam War. H.R. 2167 does not have a provision on the restoration of citizenship but does provide that no United States national shall lose his nationality under the Immigration and Nationality Act, Title III, ch. 3 (8 U.S.C. Sec. 1481-1489) or any other provision of law relating to the loss of nationality, unless and until he shall have obtained nationality or permanent resident status in another country.

8. Administration

H.R. 236 establishes an Amnesty Commission which is to receive applications from persons seeking amnesty for nonviolent or otherwise morally justified violations of Federal, State or local laws which were substantially motivated by opposition to United States involvement in Indochina. The commission is to determine if the violation was nonviolent or otherwise morally justified and if the opposition was substantially motivated by opposition to American involvement in Indochina. Upon finding that the offense was nonviolent or otherwise morally justified and properly motivated, the commission is to grant amnesty. In granting amnesty, the commission is to determine if the amnestied offense was the sole or substantial cause of an other than honorable discharge and is to hear persons entitled to automatic amnesty who are aggrieved by the refusal of a military board to grant an honorable discharge.

H.R. 10979, like H.R. 236, also establishes an Amnesty Commission. The Commission is to receive application from persons seeking immunity from prosecution, etc. and make regulations concerning the requirement of military or public service. However, it is the Act itself that declares the immunity, ete. The Attorney General has similarly limited functions in H.R. 2167. Additionally, the Secretary of Defense is authorized to publish and revise a list of acceptable public service employment. H.R. 674 and H.R. 10980 simply authorize the Attorney General to make rules and regulations to carry out the Act. 9. Judicial Remedies

In addition to the provision for the judicial restoration of citizenship, H.R. 236 provides for judicial review of an adverse action by the Amnesty Commission and, in certain instances, a refusal by a military board to grant an honorable discharge. H.R. 236 also grants the District Courts jurisdiction over denials of the benefits and effects of amnesty and to stay related State court proceedings. With respect to judicial remedies, H.R. 10979 and 10980 have only the abovenoted provisions on the restoration of citizenship.

RICHARD E. ISRAEL,

Legislative Attorney, American Law Division.

Mr. KASTEN MEIER. Before I call our first witnesses let me remind our witnesses of the time pressures we are under because of the large number of witnesses we will hear.

The complete written statement of each witness will be included in its entirety in the record. In presenting oral testimony witnesses should summarize their formal statement and take no more than 15 minutes for their presentation.

I am very pleased to greet as our first witness this morning Mr. Leon Ulman, Deputy Assistant Attorney General, representing the Department of Justice.

Mr. Ulman, you may introduce your associate and you may proceed.

TESTIMONY OF HON. LEON ULMAN, DEPUTY ASSISTANT ATTORNEY GENERAL; ACCOMPANIED BY ROBERT W. VAYDA, CRIMINAL DIVISION, U.S. DEPARTMENT OF JUSTICE

Mr. ULMAN. Mr. Chairman, members of the subcommittee, I have with me Mr. Robert W. Vayda, who handles Selective Service matters in the Criminal Division. He will be available for questions concerning prosecutive policy of the Department and any statistics that you need in addition.

Mr. KASTEN MEIER. Could you speak into the microphone so you can he heard more clearly?

Thank you.

Mr. ULMAN. Our views on the current bills before the committee are limited to legal aspects.

I might say the subject of amnesty is one in which legal views are not entirely in agreement. Accordingly, I think it would be helpful to examine the legal issues generally before turning to a discussion of the particular features of each measure. But my conclusion is that it is quite difficult to say that Congress has the constitutional power to legislate amnesty. The term amnesty is not mentioned in the Constitution. The only relevant provision is to be found in Article II, Section 2, which states that the President shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. The term "amnesty" is generally employed where a pardon is extended to whole classes rather than to individuals. Otherwise, the distinction between amnesty and pardon is solely of a philosophical interest than legal importance.

Amnesty has been granted by our Presidents on several occasions as a matter of grace. This occurred first by President Washington in 1795, by Presidents Jefferson, Madison, and Jackson in granting amnesty to deserters from the Armed Forces if they would agree to return to military duty and complete their obligations.

Prior to the period of Reconstruction, the President's competence to grant amnesty was never challenged, and Presidents Lincoln and Johnson did so, stating that the Constitution gave them absolute discretion in these matters.

In 1869, the Judiciary Committee of the Senate submitted a report asserting that the President lacked such power, but nevertheless Presidents continued to grant amnesty, the latest occasion being that of President Truman in 1946.

It is now well settled that the President, acting pursuant to his constitutional pardoning power, is authorized to grant full or conditional amnesties as well as pardons. It is also well established that Congress cannot interfere with the exercise of that power.

It is clear, therefore, that the President as a matter of constitutional power, may if he so desires, grant full or conditional amnesty to Vietnam war resisters who have violated Federal law.

On the other hand, the scope of congressional authority in this area is unclear at best. As far as we have been able to determine, Congress has never enacted in our long history a general amnesty law purporting to confer clemency by its own action, and therefore, the Supreme Court has never had the occasion to adjudicate the constitutionality of such a law.

Two cases in the Supreme Court have been cited to support such a view, Brown v. Walker and The Laura.

Prof. Louis Lusky in his article, "Congressional Amnesty for War Resisters," 25 Vand. L. Rev. 525 (1972), suggests that Brown v. Walker and The Laura indicate Congress may have an amnesty power. However, we do not read those cases to that effect. As Chief Justice Marshall said in Cohens v. Virginia, 6 Wheat. 264, "It is a maxim not to be disregarded that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used."

In addition, granting immunity to witnesses has occurred in Brown v. Walker was given on a quid pro quo basis and is readily distinguishable from the grace concept intrinsic in amnesty. The statute that was involved in The Laura left the exercise of the power of remission wholly within the discretion of the Secretary of the Treasury. The penalty in that case, therefore, was not remitted automatically by operation of a statute, but as a result of the discretionary act of the Secretary of the Treasury, and indeed only if the President did not object. Discretionary acts of Department heads are subject to the President's control.

To believe that any amnesty power is vested in Congress raises a very serious constitutional issue, especially from the standpoint of certain of the bills under discussion.

In the Supreme Court case of United States v. Klein it appeared that Congress in 1862 authorized the President to offer pardons on such conditions as he might think advisable. In 1863, President Lincoln did exercise pardon authority. By statute, Congress subsequently declared those pardons inadmissible in evidence in certain cases. The Supreme Court held that statute unconstitutional, and in the course of its opinion, the Court characterized the 1862 law as merely a "suggestion of pardon by Congress, for such it was, rather than authority," and observed that President Lincoln in his annual message to Congress in 1863 informed it that, and I quote: "The Constitution authorizes the Executive to grant or withhold pardon at his own absolute discretion."

In other words, as I read what the President said and what the Supreme Court said, Congress itself had no power in this regard.

The courts have never squarely addressed the question whether Congress is precluded from granting amnesty if the President has decided against it or whether Congress may expand a grant of Presidential amnesty, or even whether Congress can extend amnesty, not only to persons awaiting prosecution, but also to offenders already convicted and sentenced.

The Klein rationale strongly suggests that Congress not only lacks the power to act where the President has exercised his pardoning power, but also where the President has decided not to grant executive clemency.

A further area of constitutional uncertainty is whether either the Congress or the President is authorized to grant amnesty or pardons for State offenses, as some of these bills propose. Given traditional concepts of federalism and the literal language of the pardoning power which is expressly limited to offenses against the United States, we do not believe that the reach of Federal clemency power can encompass State offenders.

Turning now to the current bills, House Concurrent Resolution 144 and House Concurrent Resolution 385 are identical. They express the sense of Congress that no pardon, reprieve, or amnesty be enacted by Congress or exercised by the President with respect to Vietnam war resisters. Although these resolutions do not have the force or effect of a statute, they do serve to direct attention to the constitutional problem. If this provision were enacted as a statutory directive it would purport to preclude the exercise of the President of his constitutional. pardoning power. Therefore, it would be constitutionally defective.

In contrast, H.R. 674 leaves the decision whether to grant amnesty essentially in the hands of the President, thus avoiding this constitutional infirmity. Apart from the provision in the bill authorizing the President to grant amnesty to State offenders, the remaining portions of the bill, including those restoring the civil and political rights of war resisters and the citizenship of any of those who relinquished their citizenship in disapproval of the Vietnam war, present a question of whether Congress has any power to grant amnesty, and I doubt that

it does.

H.R. 10980 and H.R. 10979 and H.R. 2167 are quite similar. Each provides for an amnesty on the condition that the recipient either enlist in the Armed Forces or perform 2 years of alternative public service. Both provide that persons convicted and serving sentences for draft evasion offenses are to be released and the remaining portions of their sentences excused if they accept similar conditions. This feature is an obvious usurpation of the President's pardoning power and also interferes with the power of the courts with respect to sentencing and probation. If Congress is authorized to release prisoners in this category what is to prevent the legislative branch releasing other types of offenders? It is for this reason that the pardoning power, certainly with respect to convicted persons, must lie exclusively with the President.

H.R. 236, H.R. 3100, and H.R. 5195 are identical, and are subject to similar objections. They provide for unconditional and automatic amnesty for any person who has violated the laws against draft evasion and desertion and for amnesty to be granted by an Amnesty Commission in other situations involving both Federal and State law violations.

These grants would extend to those already convicted and sentenced as well as to those not yet prosecuted, thereby certainly in the former respect invading the President's pardoning power.

Moreover, the bills also extend to State offenses, and finally, the scope of the rights attempted to be restored with the grant of amnesty appears too sweeping.

The inclusion of the term "property rights" is most troubling. It is well settled that a grant of clemency cannot affect rights that have been vested in others directly through the execution of the judgment imposed for the offense or which have been acquired by others while the judgment was outstanding.

It is clear that amnesty under these bills could not have the effect of divesting others of their property rights.

There is also a separate and very substantial constitutional infirmity in H.R. 236, H.R. 3100, H.R. 5195, and also in H.R. 10979, with respect to the Amnesty Commission established by these bills. The Commission

is to be composed of five members, one appointed by the President and the others by various Members of Congress. The functions of the Commission would not be merely to advise the President, but to affect the status of the persons involved. Its members, therefore, would be executing the laws and thus perform sovereign functions of the United States. Consequently, they would be officers of the United States in the constitutional sense and therefore, they must be appointed in a manner . consistent with Article II, Section 2, Clause 2 of the Constitution.

Under that constitutional provision officers of the United States are to be appointed by the President by and with the advice and consent of the Senate. In the case of "inferior officers," Congress may authorize the appointment by the President alone, the courts of law or the heads of departments. The Constitution does not provide for the appointment of officers of the United States, other than congressional officers, by Congress or Members of Congress. Accordingly, appointments to the Amnesty Commission by Members of the Congress would be clearly constitutionally invalid.

In sum, Mr. Chairman, our analysis of these bills, other than the sense of Congress resolutions, discloses that each contains serious constitutional defects. For this reason alone the Department of Justice is obligated to oppose their enactment.

Mr. Chairman, that concludes my statement.

I will attempt to answer such questions as members of the subcommittee would wish to put.

Mr. KASTEN MEIER. Thank you, Mr. Ulman.

The legislation before us would restore the civil rights to certain. individuals convicted of crimes motivated by their opposition to the war. In your testimony you state that Congress cannot act where the President has decided not to grant executive clemency because it would encroach upon the President's power.

Just 3 or 4 weeks ago in this very subcommittee, the Justice Department testified on legislation whereby Congress would give the right to vote to ex-offenders. The Justice Department at that time did not take such a position; namely, that such legislation would encroach upon the President's right to grant this executive clemency which would restore a civil right.

I am wondering about that inconsistency, Mr. Ulman.

Mr. ULMAN. I do not believe that it is an inconsistency. Restoring the right to vote, it seems to me, is not a pardon, and therefore, I think the situations are different.

Mr. KASTENMEIER. In other words, is it your statement that as part of amnesty we could restore the right to vote to all individuals affected and you would not object to that, I take it?

Mr. ULMAN. I do not believe that the objection would be substantial, but I really have not thought about that aspect.

Mr. KASTEN MEIER. Additionally, you state that Congress cannot interfere with the execution of criminal sentences for similar reasons, but it seems to me Congress has always done that. This Judiciary Committee has been asked to do it. We passed legislation setting the length of criminal sentences. We have before us legislation which would change the effect of parole determinations which certainly will affect. sentences, and in fact, will have a mitigating effect. So I fail to see why we can act in one case and not in another.