Mr. ULMAN. Well, you are talking there about sentencing, and mitigating sentences, but I do not regard that as equivalent to a pardon. What you are doing here, it seems to me, is granting in effect a pardon for past offenses. You are just putting the individual in the position as though he had never committed an offense, which I think Mr. KASTENMEIER. There are some proposals to that effect. Mr. KASTEN MEIER. But not completely. I do not recall that you discussed provisions in at least two of the bills, H.R. 236 and H.R. 674, which provide that it is an immunity of United States citizens under the 14th amendment to enjoy the annulment of certain legal disadvantages. I would like your comments on those provisions insofar as these purport to remove any constitutional doubt as to whether Congress can act in this matter. Mr. ULMAN. I do not believe that the privilege and immunities clause extends to that type of thing. I believe the privilege and immunities clause is simply a clause which relates solely to Federal rights of citizenship. I do not see that Mr. KASTENMEIER. These rights are partially affected here as well, are they not? Mr. ULMAN. What rights? Mr. KASTEN MEIER. The rights of citizenship. This is part of the subject matter encompassed in the amnesty proposals. Mr. ULMAN. Well, to the extent that you would consider-I thought that the privilege and immunities clause was designed to reach State offenders rather than Federal offenders. The 14th amendment provides that no State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States. Mr. KASTENMEIER. One or two other questions before I yield to my colleagues. I take it, Mr. Ulman, you are careful to discuss the status of the legislation from a legal standpoint as you see it. You consciously make no statement other than legal, with respect to the substantive merits of these proposals. You make no judgment on those questions, is that correct? Mr. ULMAN. Well, my statement is certainly restricted to that. Mr. KASTEN MEIER. You may or may not care to answer this question, but has the Justice Department presented to the President in recent months its views on this question or has the Justice Department been consulted by the President on the question of amnesty? Mr. ULMAN. My understanding is that the President has not changed his position. Mr. KASTENMEIER. That is your understanding? Mr. KASTENMEIER. Thank you, Mr. Ulman. I yield to the gentleman from Massachusetts, Mr. Drinan. It would appear to me that the Department of Justice may well have said something to the contrary in the recent past. There was a bill proposed by Mr. Bevil that went to the House Armed Services Committee. This was a concurrent resolution, the bottom line of which said: "That it is the sense of Congress that no pardon, reprieve, or amnesty be enacted by the Congress or exercised by the President with respect to persons who have violated the Military Service Act," and so on. The Department of Justice, under date of May 7, 1973, said it had no objection to the enactment of this clause. If I may read it, this is specifically contrary to what you are telling us today. You say in May here, over the signature of Mike McKevitt, that you have no objection to Congress acting in the area when Congress would, by a concurrent resolution, deny all amnesty, and now you are telling us you do not feel we have any power at all. Here is the line. "In light of the Administration's view on amnesty as expressed by the President, we have no objection to the passage of House Concurrent Resolution 86 at this time." Would you care to comment? Mr. ULMAN. Yes. First of all, I had no knowledge of that letter. Secondly, my view is that Congress does not have the power of granting amnesty. But what you are mentioning is a concurrent resolution against amnesty. But as I explained earlier, a concurrent resolution merely expresses the sense of Congress and does not have the force of law. Mr. DRINAN. When you say you have no knowledge of that letter, you speak like the Pope or like the State Department when you say on page 6 here, "We do not read those cases." Who is "we"? If you have not heard of the letter who is "we"? Mr. ULMAN. The Department of Justice. Mr. DRINAN. Well, tell us more. Has the Attorney General approved your testimony? Mr. ULMAN. I assume he has. He has not said that he disapproved it, therefore, I assume he has approved it. Mr. DRINAN. I assume that he approved Mr. McKevitt's position, too. Mr. ULMAN. I do not know, but I would assume so. Mr. DRINAN. Nobody sees the contradiction? Mr. ULMAN. I do not see-I would not say that on the basis of the two letters there is a contradiction. Mr. DRINAN. There is or there is not a contradiction. You cannot have them both ways. It is like being pregnant, you are or you are not. Mr. ULMAN. I can say this with the utmost confidence: I do not believe I am pregnant. Mr. DRINAN. Is there a contradiction, for the record, say yes or no, between the letter of the Department of Justice of May 7 which the Attorney General saw and your testimony? Mr. ULMAN. On the basis of what you tell me, I would agree that there appears to be a contradiction, but in any event the later testimony would seen to resolve the matter. Mr. DRINAN. We are supposed to take the latter position just because it is later, even though it is contradictory. In Brown v. Walker, you say that the operating sentence, the key sentence, is dictum. How did you reach that conclusion? Mr. ULMAN. I reached that conclusion simply because the basic issue before the court was whether or not Congress could grant immunity in return for testimony, and the question of congressional power to grant amnesty is, I think, quite different. Mr. DRINAN. Did Prof. Louis Lusky in his articles that you quote say that the particular very strong sentence in question was dictum? Mr. ULMAN. I do not recall whether he said it was dictum, but my recollection is that his view was merely that it indicated that Congress had the power. He did not say Congress has the power. Mr. DRINAN. But when you say that we do not read these cases to that effect, I assume you have some constitutional experts who have written contrary to Professor Lusky. Who are they? Mr. ULMAN. The expert is myself. Mr. DRINAN. Would you want to give us your credentials as an expert? Mr. ULMAN. Yes, I have been in the Department of Justice for 30 years and have been handling constitutional questions for that length of time. I am Deputy Assistant Attorney General in the Office of Legal Counsel, one of whose principal functions is to consider constitutional questions. I think from my standpoint, my credentials are as good as Professor Lusky's. Mr. DRINAN. Have you testified before on amnesty? Mr. DRINAN. Have you ever written on amnesty? Mr. ULMAN. No, I have not, other than my prepared statement. Mr. DRINAN. Have you any credentials in the field of amnesty? Mr. ULMAN. Yes, my study of the materials. Mr. DRINAN. What other constitutional experts agree with you? Mr. ULMAN. I do not know of any who do agree with me, nor apart from Professor Lusky, any who disagree with me. Mr. DRINAN. Thank you very much. I yield back my time. Mr. KASTEN MEIER. The gentleman from New York, Mr. Smith. Mr. SMITH. No questions. Mr. KASTEN MEIER. The gentleman from Iowa, Mr. Mezvinsky. Mr. MEZVINSKY. Mr. Ulman, I appreciate your testimony. For the record, you point out in your statement on page 3 that President Truman created, by Executive order, an Amnesty Board. Is there any move within the administration or any recommendation or thought concerning the issue of amnesty that an Amnesty Board should be established as an initial step? Mr. ULMAN. I am not aware of any such thing. Mr. MEZVINSKY. Would you have any comment as to whether that should be done? Mr. ULMAN. No, I have no comment on that. I do not regard that as my function. Mr. MEZVINSKY. Chairman Kastenmeier indicated when he raised the point concerning your statement that it is basically a legal argument and that it has nothing to do with the substantive merits. If the President would change his mind on the whole question of amnesty, do you think you would have the same position today? Mr. ULMAN. On what question? Mr. MEZVINSKY. If the President would say that I think we should consider this issue and deal with it and somehow attempt to resolve it, would you have the same position you are giving us today on the substantive basis? Mr. ULMAN. Congress should deal with it or he should deal with it? Mr. MEZVINSKY. Either one should deal with it. Mr. ULMAN. If he should deal with it, I think there is no question that he has the constitutional authority to deal with it. If he should say Congress should deal with it, I would think the constitutional questions remain. I would not expect him to say that. Mr. MEZVINSKY. Do you think he should deal with it, Mr. Ulman? Mr. ULMAN. That is beyond my competence. Mr. MEZVINSKY. Again, have there been any recommendations, any memorandums, any papers directed to the President or within the Department on the substantive issue of dealing with the question of amnesty? Mr. ULMAN. I think there are a number of prior reports that the Department has submitted which indicate that they are opposed to the granting of amnesty. Mr. MEZVINSKY. Not on a constitutional basis? Mr. ULMAN. No, on the merits. Mr. MEZVINSKY. Let us get it clear. On the merits constitutionally or on the substantive or political reason? Mr. ULMAN. On the substantive aspects. Mr. MEZVINSKY. Thank you, Mr. Chairman. No further questions. Mr. KASTEN MEIER. Thank you, Mr. Ulman, for your testimony this morning. My only comment would be that this committee, the House Judiciary Committee, and the Congress have been confronted in recent times with a series of questions for which precedent in terms of power, congressional and executive, have sometime been uncertain or in conflict. While we accept your testimony as representing the point of view of the Justice Department, it seems to me, viewed in terms of murky precedent and what might be a compelling need to act, we will have to independently come to a judgment as to whether or not we will in fact act in this area. The Chair submits for inclusion in the record correspondence between this committee and the Department of Justice relating to amnesty. [The correspondence referred to follows:] Hon. ROBERT W. KASTEN MEIER, DEPARTMENT OF JUSTICE, Washington, D.C., March 1, 1974. Chairman, Subcommittee on Courts, Civil Liberties and the Administration of Justice, U.S. Senate, Washington, D.C. DEAR MR. CHAIRMAN: This is in response to your inquiry of February 15, 1974, requesting statistical information on Draft Law violators, as well as any increase in case load, which may have been experienced by the Department since the termination on July 1, 1973, of the decade old policy which permitted certain delinquents to submit to induction in lieu of prosecution. In response to your specific inquiries, I have provided answers in the order in which the inquiries were raised. 1. Departmental statistics reflect that the following individuals were convicted of draft law violations during the fiscal years indicated: 1963, 295; 1964, 243; 1965, 256; 1966, 366; 1967, 789; 1968, 884; 1969, 959; 1970, 1036; 1971, 1085; 1972, 1676; 1973, 1093; 1974,1 485. 2. The following is a statistical summary by fiscal year of individuals referred to the various United States Attorneys, nationwide, as Draft Law delinquents: 1963, 11,793; 1964, 13,589; 1965, 13.661; 1966, 13,835; 1967, 19,774; 1968, 21,331; 1969, 27,444; 1970, 26,475; 1971, 25,504; 1972, 20,091; 1973, 13,278; 1974,1 2,742. 3. At the end of calendar year 1973, there were 5,132 outstanding indictments against Selective Service delinquents. It is estimated that of this number, 4,600 individuals are fugitives. 1 First 6 months of 1974. 4. The statistical information maintained by the Department does not contain a breakdown as to the nature of the violation reported by the United States Attorney. However, the General Counsel of the Selective Service System has provided us with what information he does have available on these violations. During calendar year 1972, there were 856 individuals reported to United States Attorneys, nationwide, for nonregistration or late registration; during calendar year 1973, 3,492 individuals were reported for these offenses. Selective Service does not have statistics for prior years. 5. There has been a slight increase in the number of cases during the six-month period since the termination of the Department's prosecutive policy on July 1, 1973, as compared with the preceding six months. There were 548 trials between July 1, 1973 and December 31, 1973, and 507 trials between January 1, 1973 and June 30, 1973. Since July 1, 1973, there has been a decrease in the total number of indictments obtained as compared with the preceding six-month period. Between July 1, 1973 and December 31, 1973, 879 indictments were returned, whereas between January 1, 1973 and June 30, 1973, 1,713 indictments were returned. Although there has been an increase in the number of trials, and a converse decrease in the number of indictments since July 1, 1973 when the authority to induct expired and the Department's policy of offering defendants the opportunity to accept induction in lieu of prosecution terminated, I do not feel that these statistics represent a definitive trend because of the short period involved. I trust that the foregoing will be of assistance, and if I may be of any service, please let me know. Sincerely, HENRY E. PETERSEN, Assistant Attorney General. HOUSE OF REPRESENTATIVES, CIVIL LIBERTIES, AND THE ADMINISTRATION OF JUSTICE, Hon. HENRY E. PETERSEN, February 15, 1974. Assistant Attorney General, Criminal Division, DEAR MR. PETERSEN: The Subcommittee on Courts, Civil Liberties, and the Administration of Justice, of the House Committee on the Judiciary, has scheduled public hearings for March 7 and 8 on several measures relating to amnesty for draft resisters and military deserters. In order that the Subcommittee may be informed fully on the scope of the proposed legislation, I would appreciate your supplying us with answers to the following questions: 1. How many individuals have been convicted of Selective Service violations in each year since 1963? 2. How many individuals have been referred to the Department of Justice for prosecution as violators of the Selective Service Act in each year since 1963 ? 3. How many indictments for violation of the Selective Service Act are now pending? 4. Since the termination of induction authority on July 1, 1973, has there been an increase in the number of persons reported to the Department of Justice for failure to register? Please supply figures on an annual basis of such referrals for failure to register since 1963? 5. Has the termination of the Department's authority to offer defendant's the opportunity to accept induction in lieu of prosecution resulted in an increase in the number of indictments and trials of Selective Service violators? I would appreciate hearing from you not later than March 1, 1974. ROBERT W. KASTENMEIER, Chairman. Mr. KASTEN MEIER. Thank you, Mr. Ulman. Mr. ULMAN. Thank you. Mr. KASTENMEIER. Our next witnesses this morning represent the American Civil Liberties Union, Henry Schwarzschild, director of the project on amnesty; and Mr. Arlie Schardt. Mr. Schwarzschild 31-638-74—4 |