that would be necessary to suggest possible ambiguities. My feeling is that a first rate job of draftsmanship was done here without saying that everything is perfect.

Mr. DRINAN. I think that any legal input would be very good because I'm certain that the military along with a lot of other people would say that this individual was not motivated by anything conscientious and that this was really unrelated to anything to do with the war and in some cases I suppose they could make out a case. You also said that both have equal power, namely the Congress and the Executive. Somebody said that we had concurrent power.

Mr. RAUH. I used the word "concurrent," too, or I meant to. I would think that the President could grant a general amnesty. I would also believe that Congress could grant a general amnesty although the President's veto power does come into play in legislation. So obviously the President has two powers: he has the constitutional pardon power and he has the constitutional veto power over Congress. But assuming now that there was a congressional amnesty and the President's veto power was either not exercised or was overridden, I would say that the concurrent power of Congress there was plenary in the sense that you could act in the field.

The one thing Congress apparently can't do, if you look at the cases, is limit the President. Congress can't say that a Presidential pardon can't be used, as it tried in one situation after the Civil War and then the Supreme Court knocked that out. I don't think Congress could say to the President, you may not grant amnesty.

Mr. DRINAN. That is not our problem at the moment.

Mr. RAUH. There are a couple of resolutions to that effect. It is funny, but here you have Mr. Hogan's resolution and the other resolution and here you have the administration talking about constitutionality when the only real constitutional question comes from their own crowd.

Mr. DRINAN. Thank you very much.

Mr. KASTENMEIER. On that point though, my recollection is these are only resolutions, that they don't presume to have the power to override the President's exercise, and so they are meaningless.

Mr. RAUH. I stand corrected, sir. They are either meaningless or unconstitutional. I'm willing to take either one.

Mr. KASTEN MEIER. I think the former is the case.

Mr. RAILSBACK. Would the Chairman yield?

Mr. KASTENMEIER. I yield.

Mr. RAILSBACK. I just want to say that it is my recollection, however, that the Department of Justice also questions the validity of the Hogan resolution as well.

Mr. RAUH. If that is correct, I am in bad company.

Mr. KASTEN MEIER. I yield to the gentleman from New York. Mr. SMITH. I thank the Chairman. I want to welcome Mr. Rauh here and thank you for your statement.

Mr. Rauh, I would say that your statement about the constitutionality of the Congress enacting some amnesty legislation jibes correctly of course with the ACLU's same position. But I personally thought that the Assistant Attorney General made a pretty good case the other day of the fact that it is at least controversial whether we

have the power or not. But in your opinion there is not controversy at all and it is absolutely clear that we do?

But I would like to say I am glad that the chairman is going to have a staff memorandum made so that we can really look into it. Thank you.

Mr. KASTENMEIER. The gentleman from New Jersey.

Mr. SANDMAN. Mr. Rauh, if I understand what you have said, you not only advocate unconditional amnesty, but is it true in your statement you also advocate the nullification of all discharges of lessthan-honorable?

Mr. RAUH. That is not exactly correct, sir. Let me read it again because I want to make clear precisely what I said. And since I read our position earlier, I can be precise.

We believe in amnesty. We believe in Congress granting general unconditional amnesty to draft resisters and deserters and to those who received less-than-honorable discharges for their opposition to the Indo-Chinese war.

There may be less-than-honorable discharges for many, many other reasons. ADA took no position on that.

I find there are some real difficulties with the less-than-honorable discharges for these other reasons. There has been a great deal of opposition to some of the less-than-honorable discharges and indeed you heard the Urban League representative tell of some of the racial problems that are involved. But that was not the position that we took. The position that we took was much narrower. We oppose less-thanhonorable discharges for opposition to the Indo-Chinese war. And I just want to make it clear that I have some strong feelings of empathy towards those who are worried about less-than-honorable discharges beyond that, but we took a more limited position, sir.

Mr. SANDMAN. Well, if this is the principal reason used for some of the things for which this less-than-honorable discharge was granted, I would assume that your position would be for the full nullification of that, wouldn't it?

Mr. RAUH. Yes; for the nullification of less-than-honorable discharges where a substantial motivation for the discharge was opposition to the Indochinese war, yes, sir. You would be correct if you said that.

Mr. SANDMAN. Do you know of any time in America's history where that was ever done?

Mr. RAUH. No: I don't, sir. But I don't know of any time in American history where you had opposition to the war similar to this except in the Civil War. As far as I know, the amnesty after the Civil War by President Johnson was very broad. Whether it covered exactly this point, I am not certain.

I just remember reading the history books and reading that President Johnson's amnesty was one of the broadest we ever had.

Mr. SANDMAN. Yes; but his was conditional as was Lincoln's and all of the other President's. He required a going back to their troops within 60 days and he required an oath of allegiance to the Government of the United States.

Now, do you buy that part of his condition?
Mr. RAUH. I'm sorry. I didn't hear that, sir.

Mr. SANDMAN. The conditions set forth by Lincoln as well as Johnson_required two things: one, that they go back to their troops within 60 days and second, that they pledge allegiance to the Government of the United States.

Now, would you buy those conditions today?

Mr. RAUH. I think they would be a mistake today when we are trying to bind up all the wounds. It may have worked then, I can't say but

Mr. SANDMAN. Did you say that would be a mistake?

Mr. RAUH. Yes; I did, sir."

Mr. SANDMAN. Let me say as a hypothetical, let's assume that we pass a law that only required a public pledge of allegiance to the Government of the United States. Would you buy that as a condition? Mr. RAUH. I think that would be a mistake although I can under

stand it.

Mr. SANDMAN. Do you think it is a mistake to pledge allegiance to the Government of the United States? Is that what you said?

Mr. RAUH. You are using your words. You can use them all you want, sir, but you can't put words in my mouth. I have been a lawyer longer than you have.

Mr. SANDMAN. But did you say that or didn't you? Yes or no?

Mr. RAUH. Don't act like you are Clarence Darrow. You are not. I will tell you exactly what my position is.

I think it is a mistake to single out anybody in America for a pledge of allegiance. I would give a pledge of allegiance anywhere where a general pledge from everybody was required. Right now if you want to have a pledge of allegiance in this room, I will be the first to stand up and give it. But when you talk about a particular group and single them out, you are doing something that really hurts the unity of this country. And the point is, you are singling people out as though they are not faithful to their country. And I say don't single out any group as being less faithful to their country than anybody else.

Mr. SANDMAN. Let's explore that. Of these thousands that are today in Canada and Sweden, there happens to be several millions of us here in this country that have some question about their responsibility to this Government. Do we not have a right to ask them, if we pass an act of amnesty, will you publicly pledge allegiance to the Government of the United States? Would that be a fair law?

Mr. RAUH. Absolutely not because you are singling them out and

Mr. SANDMAN. I have no further questions.

Mr. RAUH. Well, let me finish, you know, you don't like the answer so you want to cut it off.

Mr. KASTEN MEIER. You may finish, of course.

Mr. RAUH. Thank you, sir.

It is because you are singling out a particular group that I would oppose it. I am for a pledge of allegiance. I would be happy to give it, as I said, right now. But you can't single someone out and say that because you did something wrong, you must give a pledge of allegiance when, in fact, they have nothing to be penitent for.

Mr. SANDMAN. Well, when they did not respect the law of the country, they did something against their allegiance to the country, did they not?

Mr. RAUH. I don't think they did anything more than-
Mr. SANDMAN. Well, you are entitled to your opinion.

Mr. RAUH [continuing]. Against the Constitution than you did, sir, when you as a hawk supported this war.

Mr. KASTEN MEIER. If there are no other questions of the witness, I would like to express the gratitude of the committee for your appearance today. But I would like to, notwithstanding your offer of generosity of other prospective witnesses, respectively decline to grant that wish. We have a number of witnesses who must be heard from, and it must be in regular order.

Nonetheless, we are grateful to you for your appearance here today. Our next witness is law professor Harrop A. Freeman, representing the Friends Committee on National Legislation, and Raoul Kulberg, Peace Committee of the Friends Meeting of Washington.

Gentlemen, we are under time pressure today so we are going to ask you to be as brief as possible. If you can summarize your statements for us, we would appreciate it.

I believe, Mr. Kulberg, your statement is relatively brief. You may proceed if you wish.

TESTIMONY OF HARROP A. FREEMAN, FRIENDS COMMITTEE ON NATIONAL LEGISLATION; ACCOMPANIED BY RAOUL KULBERG

Professor FREEMAN. I am Harrop Freeman, professor of law at Cornell and a member of the Friends Committee on National Legislation. I would like to have the statement and the attached statements of the various meetings of the Religious Society of Friends throughout the country, which are attached to the statement, placed in the record.

Mr. KASTEN MEIER. Without objection they will be so received. [The statement of Harrop A. Freeman with attachments follows:]

TESTIMONY OF HARROP A. FREEMAN ON BEHALF OF THE FRIENDS COMMITTTEE ON NATIONAL LEGISLATION IN SUPPORT OF UNCONDITIONAL AMNESTY

I am Harrop A. Freeman, Professor of Law at Cornell University and a member of the Policy Committee of the Friends Committee on National Legislation of Washington, D.C., on whose behalf this testimony is being presented. The Friends Committee on National Legislation does not purport to speak for all Friends since the democratic organization and ideals of the Society of Friends make this impossible. But even on tihs controversial and emotion-charged issue we have found considerable unity. A copy of a statement approved by our General Committee on February 21, 1972, is attached at the end of my testimony, along with statements from a number of other Friends' bodies.

We commend the chairman and members of this subcommittee for calling this series of public hearings on this issue. This is a matter of importance not only to the young men involved but also to their families and friends and the general public.

We support the intent and purposes of those House bills now under discussion such as H.R. 236, H.R. 3100, and H.R. 5195, which provide for general and unconditional amnesty for all who may be deemed to have violated United States laws with regard to the war in Indochina. For their 300-year history Quakers have been known for their opposition to war, their services for harmony and reconciliation for all people. These services have consistently been furnished without asking who is right and who is wrong in a conflict, as a means of binding up the wounds of conflict, furthering reconciliation between opposing parties and permitting men to assume tasks for the future as one family of humanity. It is this same moral imperative of reconciliation that demands the enactment now of full and unconditional amnesty.

Perhaps at no time in its history has this nation been so divided and in need of reconciliation. Not only are we divided party-to-party, age group-to-age group, and class-to-class by the most unpopular war and the most pervasive government scandals in our history. But we are divided within groups, unable to attract good candidates, unclear in the laws needed, unable to inspire voluntary efforts to solve our energy, inflation, food, and other crises. If there is one single thing we need for America it is a central and reconciled people.

I hesitate to pose as an authority on the legal question of amnesty, but I am the first person in over fifty years to research the issue and publish the definitive law review article, "Amnesty Today," in 1971 Law and the Social Order 515 (incidentally alongside an article by Sen. Barry Goldwater on "The President's Warmaking Power"). As that article points out, the ancients well understood the desirability and function of amnesty. Because of the bitterness and legal penalties attached to political opposition or revolt a large segment of the public (often the most politically knowledgeable) would be barred from public office and service. Because such division deprived society of some of its best minds it was desirable that society grant amnesty to all previous political offenders. This was done by the law declaring (as it often does by statutes of limitations) oblivion or forgetting of these offenses. What was intended was not "forgiveness" which would recognize that the person had in fact violated law but was in mercy rehabilitated. Rather, the Greek attached their word amnesty (same stem as amnesia)-that the law no longer looked upon the act as a wrong or violation. The Hebrews likewise had shorter periods and the sabbatic once every seven years when all wrongs were forgotten.

Gradually, through Roman jurisprudence and into Anglo-American law two concepts took shape-"pardon," lodged in the executive and given on a case-bycase basis by the one charged with law enforcement and representing a continued recognition that a crime had been committed but that the person was "forgiven" so that he did not have to pay the full penalty, and "amnesty," lodged in the legislature by which a new law wiped out the old crimes as to all persons in certain classes, thereby "forgetting" or "obliterating" the crime and fully reconciling the persons to society.

Amnesty is as American as apple pie. It, or a "general" executive pardon which approximates an amnesty, has been given over forty times in the United States for nearly every political offense in our history-for deserters, insurrectionists, rebellion, the Civil War, draft evasion, military court martials, etc. So deeply ingrained in our system is the concept of amnesty that in 1946 we proclaimed amnesty for over two million Japanese and German political offenders. Nor are we alone in this. Nations as diverse as Argentina, Brazil, Canada, Bulgaria, Greece, India, Yugoslavia, the U.S.S.R. likewise gave post World War II amnesties. Wouldn't it be a travesty of American democracy if we could amnesty all these German and Japanese war “criminals" and not amnesty our own sons and daughters, whose only offense in most instances was to see the Vietnam War as constitutionally illegal, morally wrong, and politically unwise far in advance of the general opinion of Congress and the people?

I do not care to here play the numbers game which has become so prevalent on this issue. It would seem enough that we recognize that the number affected is very large. If those receiving less than honorable discharges from the armed services, and if those from former wars unamnestied are included, we are talking about from one to two million persons. Too much attention may have been focused on the men who avoided the draft or left the service and are living abroad. This number is estimated at not over 30.000. On the other hand, those who have less than honorable discharges or who have been arrested in anti-war protests number well over 500,000. Their records currently prevent their employment and often their participation in the governmental process. They are mostly the young, the black, the economically deprived, whose burdens should not be added to. The means they took to protest may well have been the only means available to them. We must not forget the real service they did to America in making us face the reality of Vietnam.

Furthermore, there has been no general amnesty in America since 1933. Thus nearly all political offenses surrounding World War II, the Korean War, the Vietnam War, the Peacetime Draft, and the status of American troops abroad, have gone unamnestied. While this is not a matter directly before your Subcommittee in the pending legislation, I believe it is time we declare oblivion to all these offenses.