law, readily available to the legal profession as a source of additional practice. I find it significant that in the past 3 years I have counseled the sons of partners in several of New York's largest law firms, and for no better reason than that their fathers could not find among their 100 to 200 partners and associates any lawyers who was [sic] competent to even discuss draft matters intelligently. The foregoing is significant only in that it indicates the vacuum into which we let our sons fall. They saw the inequities that abounded in the system, particularly in the era from 1967 to 1969. Not only did the law itself have built-in injustices, but it was even more shocking to see the differences in the way the law was applied from one local board to another, often in neighboring towns.95 One should add that even if the administrative and judicial processes are successful, the legal fees are beyond the means of most men. For example, one notable war resister, Muhammad Ali, expended approximately 150,000.00 dollars to prove his conscientious objector claim.

The benefits of an unconditional amnesty would neither destroy military morale nor make the nation less secure. It is acknowledged that the morale of the armed forces is low. Writing in the Armed Forces Journal,96 Col. Robert D. Heinl, Jr. warned that,

The morale, discipline and battleworthiness of the U.S. Armed
Forces are, with few salient exceptions, lower and worse than at
any time in this century and possibly in the history of the United
States.

By every conceivable indicator, our army that now remains in
Vietnam is in a state approaching collapse, with individual units
avoiding or having refused combat, murdering their officers and
non-commissioned officers, drug-ridden, and dispirited where not
near-mutinous.97

He sees countless anti-military pressures being brought against the armed forces from divergent sources. Underground newspapers, antimilitary lawyers, off-base coffee houses, the Order of Maximilian ("a community of turbulent priests and clergymen"), the "antiwar show-biz front," weak courts, all are contributing to low morale, according to the author. Would an unconditional amnesty lower morale even further? As Professor Commager suggested,

Quite aside from the observation that it is difficult to see how that
morale could be any lower than it now appears to be-it is proper
to say that there seems to be no objective evidence whatever to
support this argument. It does not appear that amnesty worked
this way in the past, in the relatively few instances where it was
applied while the war was still going on. Nor is it irrelevant to
note, for what it is worth, that there is strong support for amnesty
from a number of veterans' organizations today.98

And as Ms. Abzug added,

[T]his country never has experienced significant difficulty in rais-
ing armies for its military endeavors. I have faith in the patriotism

95. Id. at 247-48; see F. STEVENS, IF THIS BE TREASON (1970). 96. ARMED FORCES JOURNAL, June 7, 1971, at 1.

97.

98.

(1972).

Id.

1972 Hearings 188; see 13 HARV. INT'L L. J. 127 n. 281, 128 n. 285

of young Americans. I have faith that they would rise to defend
this country if a national emergency really required it. But I also
have faith in their ability to think for themselves, to distinguish
right from wrong where their Government's policies are concerned,
and to have the courage to resist official policies where they are
manifestly immoral.99

Granted, the Director of Selective Service, Curtis W. Tarr, stated that a general amnesty would seriously disrupt inductions:

If the amnesty affected only those 300 or so men presently serving
prison sentences, then inductions probably could continue but with
some hard feelings among those ordered to report. If on the other
hand, the amnesty made it possible for approximately 10,000 men
who have been convicted since 1947, and 6,000 registrants who
face possible prosecution, to return to the full rights of citizenship
without any penalty, then it would be difficult to justify the con-
tinuation of inductions. Our youth could not understand such op-
posing policies. I am certain that it would be nearly impossible to
maintain membership on local boards as well. . .

In short, I believe that any widespread program of amnesty
would be incompatible with the continuation of inductions.100

Doubtless Mr. Tarr's reservations, whether justified or not, are moot when one considers former Secretary of Defense Laird's news release dated January 27, 1973:

With the signing of the peace agreement in Paris today, and after receiving a report from the Secretary of the Army that he foresees no need for further inductions, I wish to inform you that the Armed Forces henceforth will depend exclusively on volunteer soldiers, sailors, airmen and Marines. Use of the draft has ended.101 And perhaps most importantly, "Is there not something to be said for putting Government on notice, as it were, that if it plunges the nation into another war like Vietnam-it will once again be in for trouble"?102 In his article, "Making a Rational Foreign Policy Now,"103 Mr. Robert L. Heilbroner projected,

I would think that by the year 2000 and possibly much sooner, we
would find revolutionary governments installed, or formidable rev-
olutionary armies fighting, in most of Asia, in at least a half-
dozen Latin-American countries, and probably in a fair number of
nations in West and Central Africa, and the Near East.104

He argued, furthermore, that a policy of neutrality toward such wars of national liberation is imperative because "The great lesson of the Vietnam war is now clear. It is that the mightiest nation in the world has not been able to defeat the forces of revolutionary nationalism in one of the smallest nations in the world."105 An unconditional am

99. 118 CONG. REC. 62 (daily ed. April 20, 1972) (Remarks of Rep. Abzug on H.R. 14175).

100. 1972 Hearings 46-7.

101. News Release from Assistant Secretary of Defense (Public Affairs), Washington, D.C., January 27, 1973.

102. 1972 Hearings 188.

103. Heilbroner, Making a Rational Foreign Policy Now, HARPER'S MAGAZINE 64 (Sept. 1968).

104. Id.

105. Id.

nesty would indirectly embrace a foreign policy of neutrality. It would illustrate that no longer would this country's military be capable of marshalling tens of thousands of its young men to be used as anti-revolutionary forces without serious national repercussions.106

III. CONCLUSION

Both legal and histrical precedent indicates that either the legislative or the executive branch of government can grant an amnesty to America's war resister. If exercised, the pardoning power can reaffirm the nation's belief in itself and its institutions,and it can indicate that the government can be both gracious and compassionate. The question of amnesty, therefore, can be answered in such a way as to help heal the divisions brought about by the war in Indochina. A government with the foresight and understanding to exercise this consitutional power will exhibit courageous statesmanship if the amnesty has malice towards none and charity for all.

JULIAN C. CAREY

106. See St. Louis Post-Dispatch, February 13, 1973, § C (editorials) at 2: "Indeed, had the draft not been so readily available to President Johnson this country's deep military involvement in Vietnam might never have taken place...." See also BUFFALO L. REV. 319 n. 43 (1972).

Comment

American Deserters and Draft Evaders: Exile, Punishment or Amnesty?

BY

DOUGLAS W. JONES

DAVID L. RAISH

Reprinted from

THE HARVARD INTERNATIONAL LAW REVIEW

VOLUME 13, NUMBER 1

WINTER 1970

Comment

American Deserters and Draft Evaders:
Exile, Punishment or Amnesty?

DOUGLAS W. JONES

DAVID L. RAISH

INTRODUCTION

At his news conference of November 12, 1971, President Nixon was asked the following:1

Mr. President, do you foresee granting amnesty to any of the young men who have fled the United States to avoid fighting in a war that they consider to be immoral?

The President's answer was, "No." Whatever the implications of this brief response, and whatever the motivations of these "young men," the phenomenon of large numbers of draft-age Americans, including American servicemen, fleeing to foreign countries has emerged as an issue of national concern.2 This concern has been evidenced in public forums,3 in numerous articles in newspapers and periodicals, and in

1. N. Y. Times, Nov. 12, 1971, at 10, col. 4.

2. It is not known precisely how many American deserters and draft evaders are presently living abroad. Estimates vary widely, e.g., N. Y. Times, Feb. 5, 1970, at 8, col. 4 (6,000-60,000); Newsweek, Feb. 15, 1971, at 28 (50,000-70,000). A number of unofficial sources cite a total of 50,000 in Canada alone. Canadian government figures have shown over 60,000 draft-age American males living in the country. S. F. Chronicle, Mar. 27, 1970, at 7, col. 5. The World Council of Churches estimates 50,000 deserters and draft evaders in Canada. N. Y. Times, Dec. 8, 1970, at 13, col. 4. Canadian aid groups give estimates between 20,000 and 50,000. Letter from Bob Seeley, Central Comm. for Conscientious Objectors, Philadelphia, Pa., to the Harvard International Law Journal, May 11, 1971. See also Comment, Draft Resisters in Exile: Prospects and Risks of Return, 7 Colum. J. Law and Soc. Prob. 1, n. 1 (1971), which estimated the number of exiles in Canada at 8,000-10,000.

3. See notes 159, 160, 161 & 286 infra and accompanying text.

4. See, e.g., Fleming, America's Sad Young Exiles, Newsweek, Feb. 15, 1971, at 28;