another social value (rule of law). It would be a recognition that sometimes and in some situations it is healthier for a society to overlook offenses than to risk a continuation of bitterness from within.

Thirdly, punishment, if it is applied, should serve as a corrective and a deterrent. But what is there to correct in the war resisters? Do we want to break these men of their conscientious principles which in many cases inspired their actions? In the matter of deterrence, what opportunity will there be for them to break any war-related laws again, now that the war is over? As to what prison has done for war resisters, Dr. Willard Gaylin, President of the Institute of Society, Ethics, and the Life Sciences, and Professor of Law and Psychiatry at Columbia University, observes: "The men I met in prison have paid a price in loss of youth, loss of self-confidence, in loss of ideals. All could have been classified as being committed to the principles of non-violence and passive resistance when they entered. By the time they were discharged, none of them accepted these principles." " Moreover, haven't the resisters been punished enough already? The terrors of underground life and the bitterness of exile could well be reckoned sufficient punishment, if indeed punishment is what is sought.

48

To those who argue that one should accept the penalty of the law as witness of their conscientious dissent and inherent respect for the concept of law there is the earlier-mentioned difficulty to be faced of this action being misunderstood as an admission of error on their part. The oft-cited precedent of Ghandi, Thoreau, and Martin Luther King, Jr., is not compelling here. Times and situations change, and with them the way in which principle is implemented may change. It is not inconceivable that in the 70's these figures from history might have joined Dan Berrigan as a "fugitive from injustice." At least I doubt that they would have counselled acceptance of punishment in the Vietnam era as the only morally acceptable or politically effective means of protest. Sister Josephine Disser, C.S.C., has observed: "The draft evaders and deserters contributed a significant symbolic service to their political community by their public exile. The alternative of going to prison would not so much have constituted a symbol, it would have been-and was-simply the ultimate in dehumanization." *

Fourthly, we are, of course, bound to serve our country. But the question is: what is service of one's country? Did those who blindly followed orders in Hitler's Germany really serve their country? A majority of the people in Germany supported Hitler, but it is interesting to note that his regime produced a flight of exiles, many of whom were acknowledged by the rest of the world as Germany's best people.

At My Lai, a massacre of civilians occurred under the excuse of "following orders." Only one man was convicted in connection with that event. His sentence has already been reduced and the President has promised to review even that reduced sentence. It is shocking to read about a nationwide survey done by researchers at Harvard University which reports: "half the people questioned said they themselves would follow orders and shoot civilians . . . two-thirds of the respondents said they thought most Americans would follow orders and shoot.” I think it is becoming clearer to Americans, especially in more recent days, that the Government is not always right. The Supreme Court's decision on abortion has indicated this for some, and the Watergate scandal has indicated it for many others. From Peter's response to the Sanhedrin ("We must obey God rather than men") to Thomas More's response to King Henry VIII (“I am the king's good servant, but God's good servant first"), the government has never been viewed by individuals of principle as the final arbiter of moral concerns. Fifthly, I would quote from a letter to a draft board written by the father of a student that I once counseled about application for conscientious objector status:

"It is often quoted, 'Render unto Caesar that which is Caesar's.' Right now what 'Caesar' needs most is responsible young men and women who are willing to 'fight' for peace. Not by killing with guns and machines but by reorienting our technology and human resources to improve our understanding and relationships and by using those talents which God has given us for peaceful purposes.”

4 Eugene C. Windchy, "When Can I Come Home, A Debate," Saturday Review, 22 April 1972. p. 74.

49 Letter of Sr. Josephine Disser, C.S.C.. to the author, dated Jan. 10, 1974.

Reported in "Amnesty for Those Who Said. 'No-As a Sign of National Repentance" by D. J. R. Bruckner, circulated by the American Civil Liberties Union.

President John F. Kennedy put this same thought in other words when he said: "War will exist until the distant day when the Conscientious Objector enjoys the same reputation and prestige as the warrior does today.' 99 51 In the meantime, in regard to future wars, Dr. Willard Gaylin has offered the following observations:

"What, then, of the concept of example-the general deterrence principle? If these men are forgiven will it not make it easier for other young men, in future wars, to avoid service? The entire crime prevention system in this country rests heavily on this concept-but then our crime prevention system has been a notorious failure. Deterrence, however, requires a sense of immediacy, involvement, and identity. It is unlikely to have any effect with war resisters where the punished example and the potential criminal are separated by years, let alone generations. The war will be different, the society will be different, the men will be different. And meaningful memory will not last that long. Do the young people today really know what happened in 1942 or 1917 or 1863, or if they did know, could they possible relate to it?" 5

52

The response of Professor Joseph Sax to this concern about the effect of amnesty on future wars is equally telling:

"One of the most interesting aspects of the amnesty tradition is the light it casts on the question what effect would forgiveness have as a precedent for military recruitment in the future? For several reasons, I think it is plain that it would have no precedential meaning for the future. Our history makes clear that the amnesty question has been dealt with during and after each American war in a quite distinctive way, responsive to the particular situation of the time. Even if one were a close student of history-as few persons likely to be affected by an amnesty are he would be hard put to govern his conduct on the basis of any specific expectations as to what the government would do in the next war. The only expectation one might reasonably have, at least based on past experience, is that some form of amnesty would be likely in relation to the Vietnam War, as it has been with other wars. In short, amnesties are always quite special events, without significant precedential value, widely separated in time and circumstance. Moreover, it is well known among legal experts that the ability of the law to govern future conduct varies widely according to the kind of conduct sought to be affected. It is easiest to affect carefully planned business conduct by tax statutes, and most difficult to affect conduct guided by passion or conscience. Plainly an amnesty speaks essentially to the latter categories." The question of fairness needs now to be considered. Since not all draft evaders and deserters were such because of conscience, should not an amnesty board be set up to review each case on its own merits? I have counseled scores of young men on the question of conscientious objection. In this process I have come to know the extreme difficulty and complexity of decision-making in this question. I think in this connection, also, of the story of the final judgment in Matthew 25 where not only the bad, but also the good, have to ask "Lord, when did we see you hungry and feed you?" People are not always in touch with their motivations. God alone knows what finally determines the actions of men, and how any board could be structured so that it would be capable of sitting in judgment on some 70,000 or more objecting consciences with any degree of equity, I do not know. Such a board did, indeed, attempt to function under President Truman, but besides suffering from the above-described drawbacks it was antithetical to the very idea of amnesty which does not attempt to assess guilt or innocence on a case by case basis but instead overlooks judgment and is interested only in reconciliating a whole class of war resisters. The judgment rendered on the amnesty board idea by Douglas Jones and David Raish in their exhaustive study on amnesty in the Harvard International Law Journal is as follows:

"Clearly the creation of a pardon board similar to President Truman's Amnesty Board would pose the greatest number of administrative difficulties. For whereas the Truman Board was dealing with 15,805 known persons within the United States who had all been convicted and about whom much data became available, today there are few records of the numbers, identity, and whereabouts of these exiles. Finding a way to make the exiles known to the pardon board, to compile a complete dossier on each individual, and to allow the exiles to submit to the

51 Quoted in testimony of Bishop Bernard Flanagan in Kennedy Hearings, p. 279. 52 Kennedy Hearings, D. 298.

Kennedy Hearings, p. 291.

"jurisdiction" of the pardon board without simultaneously submitting themselves to prosecution for their offense would involve an extremely complicated process. In addition, the lack of well-defined standards and the limited amount of time given each case under the Truman Board suggest that the outcome in certain cases must have been highly arbitrary. Although clearer standards might be provided for a board operating today, the larger number of draft evaders makes it unlikely that such a board, regardless of the machinery made available to it, could have the time to reach a well-considered result in individual cases."

Henry Schwarzschild, Director of the Project on Amnesty of the American Civil Liberties Union Foundation, has expressed similar reservations about an amnesty board:

"I know a good many (people) who would very emphatically assert that the standards applied by the Truman amnesty board were inherently and in practice profoundly invidious and discriminatory on grounds of class and race and, indeed, religious affiliation. Among the men who were excluded from consideration for executive clemency in the proceedings of the Truman amnesty board, for example, were all the Jehovah's Witnesses who had refused to participate in that war, whom, by any reasonable standard, I believe, none of us would deem criminals not worthy of pardons. A good many of the others who were not pardoned by President Truman upon the recommendation of the amnesty board were men who could not to the satisfaction of that tribunal present an articulated philosophy of the world, of war, of killing, of justice, of political theory.

"It seems to us that any attempt to assess the subjective motivations-the moral, political, ideological, religious motives-which prompted men at that time and again in our day to dissociate themselves from a national undertaking so grevious as a war would inevitably again lead to discrimination in the case of the war resisters of the Vietnam era. We believe that an amnesty which, after all, is something which undoes, which potentially can undo, the injustices reached by the law itself, ought not to become another instrumentality of discrimination as indeed the draft and the war in very substantial measure already have been for this country." "

55

Also involved in the matter of fairness is the question of alternative service. Should not the war resistors to be amnestied be required to do some form of alternative service? The fact is that alternative service is basically a form of punishment. Punishment implies judgment and guilt and these implications are, again, essentially antithetical to the concept of amnesty. An additional practical point is that any significant social work would not be very effectively accomplished by a system of forced labor such as alternative service.

"If our hospitals need staffing, our strip-mined hills need restoration, or our inner cities community planning, these urgent human and social needs can hardly be met by a labor corps of conscripted and therefore unwilling men. And the agencies of government have not shown themselves especially skilled at channeling large numbers of people into tasks of social reconstructionbureaucracy is simply not the proper setting for such work, as the problems of the Peace Corps or VISTA plainly teach us." 56

A difficulty with alternative service that has not been sufficiently considered is that any attempt to impose it might well be unconstitutional. Section One of the Thirteenth Amendment to the Constitution states: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." 57

Still another fairness consideration is that voiced by Senator James L. Buckley of New York: "We cannot forget that for each deserter, for each draft evader, another young American had to be conscripted and exposed to the risks of combat." ."58 This seems to me a most peculiar argument, for the choice of either serving or not serving is placed before each person that is called. If not only the first person objects to the conscription, but also the second, third and so on,

54 Quoted in Kennedy Hearings, p. 474.

Public Service Broadcasting Service program "The Advocates," op. cit.

Statement of Henry Schwarzschild in Kennedy Hearings, p. 304.

U.S. Constitution, Amendment XIII, Section 1.

Senator James L. Buckley's Newsletter, Vol. 3, No. 3, March-April 1973.

they all do no disservice to a later one, who, by chance, may see his duty as serving in the war.

Even tho amnesty might not be unfair to those who served and survived, would it not dishonor those who have died in Vietnam? First, I do not believe there is an essential difference between these two groups. Secondly, Congresswoman Bella Abzug provides an analogy for this problem when she says: “When our court system sentences a man to death and later strikes down the law under which he was condemned, reversal of the original sentence is ordered, that is, the courts do not insist that the offender be executed for the sake of consistency or of honoring those who were wrongfully put to death before him."" The mother of a soldier killed in Vietnam, Mrs. Louise Ransom, has given her own personal testimony: "Everybody says it dishonors the dead to give amnesty. A lot of people cannot presume to speak for the dead. But I presume to speak for them, and I believe it will dishonor the dead if we discredit those other victims of the Vietnam War. We have not advanced the cause of freedom one bit unless we learn mercy without punishment." Mrs. Ransom referred to the exiles as the "other victims of the Vietnam War." Senator Edward M. Kennedy has voiced the same view when he observed: "When we view the results of this war, we find no beneficiaries, we find only victims." "1

A final question concerns whether amnesty would be fair to those who were legally penalized for their beliefs. Many men did go to prison or performed alternative service rather than fight in the war. The question of equity toward these men arises in regard to the evaders. Leaving aside the fact that many men "legally" dodged the draft without penalty through deferments and other loopholes, the key difference on this point is that the government should rightly be expected to enforce conscription, demand alternative service and sentence violators to prison only as part of a national defense program during wartime. Aside from the fact that war was never formally declared in Vietnam, all hostilities involving Americans have ended, and to continue to demand service or impose punishment would seem more in the nature of vindictiveness than in the interests of national defense. Additionally, those men who chose prison might even be considered to have chosen a less difficult situation in the sense that they could look forward to release and complete freedom after a certain fixed period of time, whereas those who chose exile had to steel themselves for possible permanent separation from their country, and those who went underground had to live with constant fear of discovery and imprisonment.

In conclusion, I believe that the question of who was right and who was wrong concerning the Vietnam War should be left aside in discussing amnesty. Any attempt to introduce such a question would shift the discussion from one about amnesty to one about either exoneration or pardon, depending upon what moral judgment is offered concerning the war. I question whether any individual or group has sufficient information at this point in history to definitely decide this question for anyone other than themselves.

In any event, I do not think an "owed" amnesty for Vietnam should be added to the list of already sufficient examples in American history which illustrate the error of attempting to support political decisions with essentially moral judgments.

I believe an immediate universal and unconditional amnesty should be granted, but that its motivation should be neither commendation nor condemnation for the war resisters or the war makers. Rather, let the basis for it be that, as the U.S. Supreme Court has said in 1915, "forgiveness is deemed more expedient for the public welfare than prosecution and punishment." "

STRATEGY AND AMNESTY

Perhaps for some time to come the most important element of action for amnesty will be education. The executive branch of government does not presently seem disposed toward the granting of an amnesty and the Congress appears quite ready to wait until popular support can be developed for this matter before it takes any action. Therefore, the crucial work to be done lies in sensitizing the American public to the dimensions of the problem. Most probably it is only when the public is ready for an amnesty that government representatives will grant

59 Dr. John M. Swomly, "Amnesty and Reconciliation," Christian Century, 7 December 1972, p. 1323.

60 The Boston Globe, February 11, 1973.

61 Kennedy Hearings, p. 177.

02 Burdick vs. U.S. 236 79, 94-95 (1915).

one. More importantly, it is only then that this action will achieve the actual reconciliation which it is intended to bring about. The war exiles are not hopeful about a legal amnesty unless it is accompanied by the acceptance of them, on the part of the public, as people who are now entitled to take their place in society on an equal footing with everybody else.

Where time permits, the most effective exploration of the amnesty question in a group setting should be done over the period of several sessions. A "package plan" of this sort might be organized as follows:

1. Raising the question-The people in the group should determine what facts about amnesty they need to know. Once the basic facts are clear, they should determine the issues that they need to discuss to reach a consensus on amnesty. As a final step in this session, each person should write down the best reason they can think of why an amnesty should be granted, and the best reason they can think of why an amnesty should not be granted. This technique has the advantage of assuring that people think seriously about both sides of the question, no matter what side they may happen to favor themselves. Literature should be available at the close of this session so that people may inform themselves more fully on particular aspects of amnesty. Some popular sources of literature on amnesty are: American Civil Liberties Union Foundation Project on Amnesty, 22 E. 40th Street, New York, NY 10016; National Interreligious Service Board for Conscientious Objectors, 550 Washington Bldg., New York Ave. and 15th St., N.W., Washington, D.C. 20005; Clergy and Laity Concerned, Literature Services, 235 E. 49th Street, New York, NY 10017.

2. Informational input and discussion-A starter for this session could be a film such as "Amnesty or Exile," a 35 minute black and white documentary containing excerpts of interviews with draft and military exiles, military personnel in the U.S., representatives of the Pentagon, and selections from the Kennedy Senate Subcommittee hearings on amnesty. The film concludes with a proamnesty viewpoint, but presents both sides of the question. It may be rented for $25 from the Broadcasting and Film Commission, National Council of Churches, 475 Riverside Drive, Room 860, New York, NY 10027.

Another film which might be used is "Duty Bound." This is a 60 minute color courtroom drama. A strong case for both sides is made during the trial of a war resister. The jury is the viewing audience. This film may also be rented from the Broadcasting and Film Commission of the National Council of Churches. The rental is $25. A dramatic reading might be presented in lieu of a film. The script from "The Advocates" program on amnesty might be used for this purpose. It is available from "The Advocates," WGBH Educational Foundation, 125 Western Avenue, Boston, Mass. 02134, at a cost of $2. Another possibility is the transcript from the "Firing Line" program featuring Wm. F. Buckley, Jr. and Henry Schwarzschild of the ACLU. It is available for 25¢ from Firing Line, P.O. Box 5966, Columbia, S.C. 29250. Still another possibility for starting discussion is to begin the session with a tape. A 20 minute cassette entitled "Amnesty: Is it a Good Idea?" is available at a purchase price of $3 from the Office of Selective Service Information, Lutheran Council in the U.S.A., 315 Park Avenue South, New York, NY 10010.

After discussion has sufficiently clarified the problem, the group should attempt to work out a concensus position. It would be helpful for the group to draft a written statement that specifies its position so that those of its membership, or others who wish to do so, might subscribe to it.

3. Action for amnesty-Once the group has arrived at a position favorable to some form of amnesty it should spend some time considering how it might best be influential in promoting amnesty. This is often best done by having the participants in the group "brainstorm” various possibilities. A secretary could write the results on newsprint positioned where the group can keep tabs on them. Suggestions arising from such "brainstorming" will vary depending on the character of the group, but sample possibilities might be: circulate amnesty petitions for forwarding to the President and Congress; write one's own Congressperson and Senators; form a Speakers' bureau composed of parents of men killed in Vietnam who favor amnesty, parents of draft evaders and deserters, veterans of Vietnam who favor amnesty, parents of draft evaders and deserters, veterans of the Vietnam era now opposed to the war; plan programs on amnesty in service clubs and other civic organizations; organize panels composed of representatives of the military, religious leaders, politicians, and conscientious objectors or former exiles or deserters; suggest a sermon on the question of amnesty in churches any synagogues; arrange placement of literature tables on amnesty wherever