To grant "amnesty" to these men, despite the contrary, is setting an example that is unparalleled in the history of English-speaking nations. With the exception of the acts of amnesty afforded during the Coolidge and Truman administrations, all others granted in England and the United States were the results of civil strife. (England, by the way, has not granted further amnesty for over two hundred years. Its last act was offered to participants of the Jacobite rebellion in 1747.)

The Coolidge and Truman grants, the exceptions noted in the preceding paragraph, bear no relation to the present issue. Coolidge offered amnesty to those who deserted the Armed Forces after World War I. President Truman's pardon included only a minute number of offenders the majority of which had already been processed under the law.

Even Lincoln's grant of amnesty came during the war, not afterwards. Those pardoned had to return to the Armed Services and continue to serve while the Civil War was still being fought. Many subsequently saw hostile action.

In all cases of amnesty noted in U.S. history, as well as those granted in England and France, two important factors appeared:

(1) All participants were not included in the grant, and/or

(2) All participants were involved in civil strife.

So history, if we wish to use it as a guide, would prohibit the granting of amnesty to all Vietnam era draft evaders and Armed Forces deserters. Likewise, the U.S. Constitution would prohibit the act from being a product of the legislative branch. This then leaves the moral side of the issue to discuss.

As for the latter, many words can and may be expressed for and against amnesty. Since the Non Commissioned Officers Association of the United States of America (NOCA) is opposed to general amnesty or "earned immunity," it presents the following exhibits as pertinent to its position.

Appendix I is a fictional two-act play that might very well be a true incident if general amnesty is granted, and Appendix II is a speech written and delivered by an American citizen, Mr. Saul L. Penn. Both exceptionally well wrap up the NCOA's feelings on the moral question.

Appendix III as a commentary by Mr. Mack McKinney, NCOA Director of Legislative Affairs, and it summarizes the Association's position.

A PLAY IN TWO ACTS
Act I

The date is 1975. Congress, through enacted legislation, has granted amnesty to thousands of Vietnam era draft resisters. They are now back in the United States, and one draft resister (D.R.) is sitting in a bar on a stool next to a veteran (VET).

D.R.-"Hey, Mac, are you a Viet Vet?"

VET "Yeh! Served two years in the Army with 13 months in Vietnam during the Tet Offensive."

D.R.-"Rough, Mac! Were you drafted?"

VET-"Sure. Weren't you?"

D.R.-"Well, they tried to, but I took off to Canada. No way in hell they were gonna' get me in the Army and have some gook shoot my butt off."

VET-"You mean you're one of those 'draft dodgers? What did you get when you came back to the States?"

D.R. "Nothin', Man. All the folks were tickled to death and even the judge up at the courthouse said he was glad I was back. Congress forgave us, you know. The war was immoral, and those guys up there in Washington knew it. That's why they passed the amnesty law. 'Forgive and forget,' they said. About time too. It was pure hell having to live out of the country without the family-and like a damned criminal. Don't you agree?"

VET-"Maybe! Vietnam wasn't no bed of roses. 'Course I didn't get wounded, or maimed or killed, or get captured by the NVA like a lot of the guys did. But there was those damned malaria infested jungles, rice paddies, and never-ending mountains. Then when I came home, there weren't any parades or citations and no jobs. My folks were glad I was back, but the judge told me I ought to get a job before I got into some kind of trouble. Seemed to me that people just didn't give a damn about us or the war."

D.R.-"Then why did you let them draft you for?"

VET "Well, I thought it was the right thing to do. My dad told me it was every American's duty to serve his God and country. Then there was the draft law too. But now I don't know. I just don't know!"

Act II

The date is 1995. The United States is again at war. Congress has revived the draft induction authority, and thousands of young Americans are being called to arms. The Vietnam veteran (VET) is at home. His oldest boy (SON) enters the family room and advises his father that he is being drafted.

VET "Forget it, Son. Take off and go to Canada instead."

SON--"Hey, Dad, it's the law that I go. They could lock me up in prison and throw the key away if I didn't. Besides, my country needs me."

VET-"Listen kid, don't worry about it. The whole damned thing is immoral anyway. You can go to Canada, or wherever you want, stay there until the war's over, then wait until some compassionate legislators call for amnesty again. They'll get it through like they did back in '75, and you'll be home safe and sound."

SON "But Dad, you served in the Vietnam war, didn't you?"

VET-"Yeh, but one fool in the family is enough. Now pack your clothes. I'm drivin' you to Canada."

APPENDIX II
Amnesty

A general pardon, especially for political offenses.

Release from punishment.

Forgiveness.

So does Webster define amnesty.

Ladies and gentlemen. We have been blessed lately with the return to our shores of several hundred men who were prisoners of an antagonist of ours for up to 10 years. Notice I said "antagonist" and not "enemy," for the thesis of my talk does not depend on the status of our recent conflict with North Vietnam as a war or anything else, nor, I contend, does it depend on one's beliefs as to the validity or morality or justification for that conflict.

The question I wish to discuss with you tonight is whether the several thousand young men who have illegally left our country to avoid service in the armed forces, out of a professed conflict with their beliefs, not to mention the risk of physical injury, should be welcomed back to the protections and benefits and opportunities of our society now that the danger has passed.

We are told by some that this would be the compassionate thing to do, by others that it is the moral thing to do, and by still others that there is precedent from previous wars in our history for doing just this thing.

Well, I would not want to stand here tonight accused of a lack of compassion. Indeed, I have compassion for the three million young men who did set aside years from their lives to serve our country in this conflict. I have the utmost compassion for the parents and wives and children of those men who served and will never return, and for the men who spent years in captivity, not knowing when their bondship would end, and still, on being set free, expressed their delight and pride in their country's strong stand.

As for morality, I challenge the argument that to serve this country, even when you believe its cause to be wrong, is immoral. I challenge those who say that to do so puts us in the same class as the butchers of Nazi Germany or wartime Japan. Ours is a nation of law, laws created and established by ourselves through our elected representatives, not handed to us by some omnipotent and untouchable despot. Some of these laws will be poor, and some will commit injustice. But as we learn of our mistakes we correct them by democratic proc esses. And as we lay claim to the protection of these laws, so must we agree to abide by them or be prepared to pay the consequences for their infraction.

On the matter of precedent, I have found no parallels sufficiently close to the present situation to serve as guidelines. Lincoln absolved deserters from the Union ranks who would rejoin their units and serve out their enlistments; but at the time they might still have faced the risks of battle. Andrew Johnson extended clemency to the whole south, but he had a divided nation to pull together-and the men he forgave felt strongly enough about their cause to bear arms in its support. Harry Truman's Amnesty Board tried 15,000 WWII deserters, and forgave 10% of them on religious grounds, but none for intellectual, sociological. or political reasons.

Different circumstances do make comparisons with the past difficult; but going back to the Civil War for a moment, let me quote an excerpt from an essay of the times by John Stuart Mill, written in 1862.

"War is an ugly thing, but not the ugliest of things; the decayed and degraded state of moral and patriotic feeling which thinks that nothing is worth war is much worse.

A man who has nothing for which he is willing to fight, nothing he cares about more than his own personal safety, is a miserable creature who has no chance of being free, unless made and kept so by the exertions of better men than himself."*

John Stuart Mill, "The Contest in America," Fraser's Magazine, February, 1862. [Mr. Saul L. Penn is an American citizen and a scientist residing in Bethesda, Md. The speech above was delivered to a local Toastmasters International Club on the date noted.] Ladies and gentlemen may I respectfully suggest that those better men today have recently returned from Vietnam. Certainly, appeals for amnesty should be considered on an individual basis; but as a general principal, in view of the type of government that we have, the illegal avoidance of service in the armed forces of the United States should not be excused.

APPENDIX III

SAUL L. PENN.

The Noncommissioned Officers Association of the United States of America, composed of 160,000-plus noncommissioned and petty officers of the United States Armed Forces; 85 percent of which are on active duty as career-enlisted military members; is opposed to granting amnesty to those men who avoided the draft or deserted the Armed Forces during the Vietnam conflict.

We have listened to many appeals-everything from, "They were too young to realize the error of their ways"-to, "It has been done before, so let's do it again." But to any and all pleas, we can only say, "Humbug!"

These men are criminals-just as certain as one who commits or contributes to murder, or at least homicide. Their refusal to be drafted, or go into or remain in combat, caused others to be drafted, sent into combat as their replacements, and possibly wounded, maimed or killed.

There is only one way to deal with these men, and that is through due process of the law. They may return and lend their pleas of extenuating circumstances— if there are any-to their cases before a competent judge and jury. If the latter feels they are or are not criminally liable, then justice has been accomplished.

But to let them return to the country they have shunned, and possibly serve in the armed forces when there is little or no chance of being shot at by an enemy, is a slap in the face to the millions of men who were drafted, who were wounded, who were maimed, or who were killed in a bloody, unpopular war.

To further excuse these men because of youthful age bears no rationale to recent congressional action allowing 18-year-olds the right to vote. If they are old enough to vote, they are old enough to serve their Nation.

The good God calls upon us to be merciful-to forgive our trespassers, but He did not mention "amnesty." Our mercy and our forgiveness can be granted through the present judicial system.

[The above commentary was delivered by C.A. Mack McKinney, Director of Legislative Affairs, NCO Association, on WTOP-TV, Channel 9, Washington, D.C., Tuesday, February 5, 1974, in answer to a Hugh Sidey commentary advocating Amnesty on January 27, 1974.]

Mr. DRINAN. Does Mr. Cavin want to say anything at this time? Mr. CAVIN. No, sir.

Mr. DRINAN. Thank you very much.

I yield to the distinguished gentleman from Illinois, Mr. Railsback. Mr. RAILSBACK. I just want to thank you for coming and for giving us the benefit of your organization's feelings.

Do I understand that your organization would take the same position on conditional amnesty as it does on absolute amnesty? Mr. DARLING. Most assuredly.

Mr. RAILSBACK. Thank you.

Mr. DRINAN. I am pleased to yield to the distinguished gentleman from New Jersey, Mr. Sandman.

And I am glad to see that our chairman, Mr. Kastenmeier, is present. I will yield the chair to him in a moment.

Mr. KASTENMEIER. I would ask the gentleman from Massachusetts to retain the chair. It has been part of my policy to encourage other members to participate in presiding.

I would like to extend a warm welcome to our witnesses. I appreciate their views. I am pleased that you could come here on behalf of your constituency bodies.

Mr. DRINAN. I have just one question.

What was the motivation for taking up the question of amnesty at your last convention?

And second, was there any dissent from the statement that was adopted?

Mr. CAVIN. None whatsoever. It was unanimous by the delegates at the national convention.

Mr. DRINAN. Is this the first statement that you have made on amnesty?

Mr. CAVIN. No, sir. There was one made a year ago, the year previous to this in August 1971.

Mr. DRINAN. All right, fine.

We thank you very much for coming and we will make this a part of the record.

Thank you very much, sir.

Mr. DARLING. Thank you.

Mr. DRINAN. Our next witness this afternoon will be Mr. Abe Simon of New York.

Mr. Simon's son was invited to appear before this committee today. He was a member of the U.S. Armed Forces who deserted in 1968 and lived in Sweden for 4 years, and thereafter in Canada. Mr. Lewis Simon returned to this country late last year and surrendered to the Federal authorities at that time.

The subcommittee felt that Mr. Lewis Simon was uniquely qualified to testify on the application of this legislation to those living in exile, and for that reason the subcommittee wrote to the Secretary of Defense on February 28 and asked that the Secretary make the proper arrangements for Mr. Lewis Simon to appear as a witness before us today.

On March 4, the Acting General Counsel of the Department of Defense replied to the committee, stating that "In view of his status, and the potential for prejudicing his subsequent trial, it would be inappropriate for the Department of Defense to arrange for his appearance."

Copies of that correspondence will be inserted into the record without objection at this point.

[The documents referred to follow:]

Hon. JAMES R. SCHLESINGER,

CONGRESS OF THE UNITED STATES,
COMMITTEE ON THE JUDICIARY,

HOUSE OF REPRESENTATIVES,
Washington, D.C., February 28, 1974.

Secretary of Defense, Department of Defense,
Washington, D.C.

MY DEAR MR. SECRETARY: The Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the House Committee on the Judiciary has scheduled hearings on March 7, 8, and 11, 1974, on pending legislation relating

to the subject of amnesty. The measures involved are H.R. 236, H.R. 674, H.R. 2167, H.R. 3100, H.R. 5195, H.R. 10979, H.R. 10980, H.R. 13001, H. Con. Res. 144, and H. Con. Res. 385.

Among the people who would be affected by the passage of any of these measures are American exiles living abroad. One of the witnesses suggested to this Committee is a young man who could make a significant contribution to the debate on these measures. He is Private Lewis H. Simon, 125-36-8208. Mr. Simon deserted from the U.S. Army and lived as an exile in Sweden for many years. He subsequently visited with many groups of exiles in Canada and Europe and may be uniquely qualified to represent the views of American exiles toward this legislation.

This Committee would like to receive the testimony of Mr. Simon on Monday, March 11 at 10:00 a.m. At the present time he is confined at the Fort Dix Area Confinement Facility at Fort Dix, New Jersey, awaiting trial on charges of desertion. Would you please have the proper arrangements made so that Mr. Simon may present oral testimony to the Committee on that date respecting this pending legislation.

Sincerely yours,

ROBERT W. KASTEN MEIER, Chairman, Subcommittee on Courts, Civil Liberties, and the Administration of Justice.

GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE, Washington, D.C., March 4, 1974. Hon. ROBERT W. KASTEN MEIER, Chairman, Subcommittee on Courts, Civil Liberties, and the Administration of Justice, Committee on the Judiciary, House of Representatives, Washington, D.C.

DEAR MR. CHAIRMAN: The Secretary of Defense has asked that I reply to your letter of February 28 requesting that Private Lewis H. Simon appear before your Subcommittee. As you noted, Private Simon is now in confinement and awaiting trial. In view of his status, and the potential for prejudicing his subsequent trial, it would be inappropriate for the Department of Defense to arrange for his appearance, in response to your invitation.

Sincerely yours,

L. NIEDERLEHNER, Acting General Counsel.

Mr. DRINAN. We regret that Mr. Lewis Simon cannot testify before us this afternoon. In his place, we nonetheless are pleased and privileged to receive the testimony of his father, Mr. Abe Simon, who is here.

Mr. Simon, would you please proceed?

TESTIMONY OF ABE SIMON ON BEHALF OF LEWIS SIMON, ACCOMPANIED BY TOD ENSIGN, COUNSEL FOR LEWIS SIMON

Mr. ENSIGN. If I may, my name is Thomas Ensign. I am an attorney for Lewis Simon and work with the Safe Return Amnesty Committee. I would like to make a brief statement about the case because we are quite concerned about the military's position, and we want to really clarify what we see to be the true state of affairs.

The pretense of the military that they have been concerned with defending Lewis' constitutional rights, his right to a fair trial, is just that. We regret it. We want to place in the record the fact that since Lewis Simon has been confined pending trial at Fort Dix, he has been placed in solitary confinement on three occasions. He is in soli