3. establish prompt procedure for a return to a normal productive life for those persons whose cases have not been brought to trial or against whom charges may not yet have bene brought. [Approved by Western Yearly Meeting at annual sessions August 1973.] WILMINGTON (OHIO) YEARLY MEETING Wilmington Yearly Meeting rejoices in the reduction of the American involvement in Indo-China, and earnestly prays for the total cessation of war in our world. Our thoughts turn to the ministry of reconciliation and love to all of God's people and thus to the issue of amnesty. We remember that the word "amnesty" comes from the same root as "amnesia," meaning the forgetting of past actions, and that it is to be distinguished from the legal term "pardon" which is the forgiving of past actions. We urge the President and the Congress to join in declaring full and unconditional amnesty for all men and women who are deemed by the government to have violated U.S. laws with respect to the war in Indo-China and the draft. Thus, we ask our government to1. permit the return of those in exile, 2. provide for the prompt release of all prisoners, 3. drop pending and potential prosecutions, 4. restore civil rights and honorable discharges. The religious heritage which we share as members of the Society of Friends and the freedoms which we share as citizens of the United States of America compel us to make this request. [Approved by the Yearly Meeting August 1973.] Professor FREEMAN. I will try to summarize my statement and discuss the high points. Now, because I believe I am one capable of doing it, I would like to discuss the question of the legal power of Congress. I have here, if the committee desires it, or if counsel for the committe desires it, 20 copies of a law review article, which I published in 1971 in Law and the Social Order and it is entitled "An Historical Justification And Legal Basis For Amnesty Today." This comes out with the conclusion that Congress and only Congress has the power of general amnesty as compared to the power of pardon, which exists in the Presidency. I shall try to discuss some of the cases that are referred to there and I would unite with almost everything that Joseph Rauh has said in this regard. Mr. KASTEN MEIER. We would be most pleased to receive the law review article you referred to both for the record and for our own general needs. Without objection, that will be placed in the record at this point. [The document referred to follows:] An Historical Justification And Legal Basis for Harrop A. Freeman Reprinted from: LAW AND THE SOCIAL ORDER 1971 by Arizona State University College of Law All rights reserved. An Historical Justification and We live in a time of political activism, and we see men imprisoned for what, at least arguably, are "political crimes." Professor Freeman, convinced that America "cannot afford to ‘banish' its potential leaders -those who ardently seek change as well as those who defend the status quo," asserts that amnesty is a proper method for society to forgive those acts that, although denominated criminal, are basically political. In this article he examines the concept of amnesty-its history, its relation to the pardon, when and by whom it may be granted -and concludes that the Congress and the President should take immediate steps to restore to full citizenship all "political prisoners.” Even a casual observer of the American political scene of recent years could hardly fail to wonder whether there has ever been a time in our history when the nation has been so divided, the opposition to a war been so widespread, the cry been so loud on the one hand for "law and order" and on the other that liberty is sacrificed and justice is dead. One wonders, too, if the courts and jails have ever been so full of persons who are, at least colorably, political protestors.' Today there may be more than 140,000 AWOL's and postinduction draft resisters, 100,000 men who failed to register or otherwise avoided the draft, and 35,000 civilians since the beginning of World War II who have been convicted in draft cases.' An untold number of soldiers have been disciplined for antiwar sentiments and activities; perhaps 200,000 people of all ages have been arrested and imprisoned or fined for antiwar marches, demon Professor of Law, Cornell University. A.B. 1929, LL.B. 1930, S.J.D. 1945, Cornell University. 1. The meaning of the term "political" is discussed and illustrated later in this article. See pages 529-33 infra. On the one hand, we cannot merely accept a defendant's statement that his act was political; on the other hand, we cannot accept the view that no felony can be political. (Perhaps we cannot even accept the idea that violence is nonpolitical, for revolution is generally recognized as political.) Tentatively, "political" should be used to refer to any acts, demonstrations, or statements which have the primary purpose of criticizing government policy or laws, bringing about governmental change, or seeking to gain control of government. 2. These figures were compiled by the author from files of the Swarthmore Library Peace Collection, Central Committee for Conscientious Objectors, National Committee for Amnesty Now, and Committees in Canada, Japan, and Scandinavia. These esti strations, and mobilizations—a sizeable number being tried or convicted for civil disobedience, burning of draft records, and like offenses; and other groups have been charged with offenses relating to support of groups such as the Black Panthers, or demonstrations at political conventions as in Chicago. All these offenses are, or are variously asserted to be, political offenses. They are all presently unamnestied and unpardoned. These are not in any sense ordinary criminals or those who refuse the duties of society or seek to save their own skins. We are talking about priests like Berrigan and Groppi, academics like Lynn, baby doctors like Spock, and the sons and daughters of the whole country-from middle America to Cabinet members. From a survey taken at Cornell, I would estimate that in the college community today (on which we must depend for future leadership) probably one in every three has in some way been involved in these "political crimes," or has been acquainted with someone who has. For many personally, or for their friends, conviction has actually taken away the right to participate in government. I. A THESIS The author would advance this thesis: Any nation, and particularly a democracy, needs all its best minds. It cannot afford to “banish" its potential leaders-those who ardently seek change as well as those who defend the status quo. Amnesty was devised as a method for society to forgive those whose acts were basically political, even though at the time society branded them as criminal, so that there should be constantly built the "nation indivisible" to which we are dedicated by the Pledge of Allegiance.' What are the grounds upon which those who dissent have been disabled by law from their civil rights? Some examples may assist. The Supreme Court has upheld the Selective Service provision that conscientious objectors must be "against war in any form," although it is well known that Catholics distinguish between just and unjust wars, and Jehovah's Witnesses are against all war except Armageddon. Religion joins philosophy, as well as politics, as an impetus to dissent. Father Berrigan insisted upon burning draft records, arguing that "some property has no right to exist." Spock, Gregory, Dellinger, and nearly every other person claiming his crime, if any, was "political," have asserted first amendment rights. Speech is precious to free men; but when exercised by a minority it may mates are similar to those currently being used by Senator Robert Taft, N.Y. Times, Jan. 8, 1972, at 29, col. 4-6; by the National Committee for Amnesty Now, statement issued Oct. 15, 1971; and to those reported in TIME, Jan. 10, 1972, at 17. See also page 519 infra. To take just one example, Pentagon figures indicate that in the first 10 months of fiscal year 1971 there were 68,449 desertions from the United States Army, or a rate of 62.6 per 1000 men, up nearly 20 percent from the 52.3 rate for fiscal year 1970. N.Y. Times, Aug. 15, 1971, § 4 (Week in Review) at 4, col. 7. 3. 36 U.S.C. § 172 (1970). 4. Gillette v. United States, 401 U.S. 437 (1971). occasion political suspicion, which, in turn, may give rise to unsubstantiated criminal charges. It must never be forgotten that charges of the most severe nature are made against persons in high places during periods of great national stress. For example, President Truman was accused of treason by Senator Joseph McCarthy; and John L. Lewis was charged with "virtual treason" for refusing to settle a coal dispute. The Supreme Court upholds even overzealous criticisms of public institutions and figures, and has abolished the rule of seditious libel. Since 1967, over 4000 clergymen and laymen have counseled and aided conscientious draft refusers even though this may violate federal law.' These men are lawyers, clergy, doctors-leaders who have acted upon their political beliefs. And we must not forget the warning of the late Justice Hugo L. Black: When [America] begins to send its dissenters ... to jail, the liberties ... There are grim reminders all around this world that the distance between individual liberty and firing squads is not always as far as it seems.' No matter where one stands in the political spectrum, it cannot be gainsaid that the American concept of government stands foremost for political freedom, whose handmaiden is the right of all to the public forum. If dissenters are denied their forum and their leaders, and (by civil disabilities and otherwise) their dignity and civil rights such as that to hold public office, then they are denied their American heritage, and America is denied their counsel. In the United States as elsewhere, the history of amnesty supports the thesis for amnesty. Once a major upheaval has crested, it is endemic in modern history among civilized governments to refuse to bear political grudges against those who, by reason of their political views alone, have sought to turn aside the juggernaut of a majority whom they sincerely be lieved to be wrong. As a society now experiencing the waning phase of one such an upheaval, Vietnam (even as others wax or wane), it behooves us to examine anew what history can contribute to a resolution of our urgent current problems, if we are to approach these with reasoned intelligence. II. HISTORY OF AMNESTY-NON-AMERICAN Amnesty is a public law concept, derived from the Greek amnestia (meaning oblivion, intentional overlooking-the same stem as amnesia). It is the 5. Russ, Does the President Still Have Amnestying Power?, 16 Miss. L.J. 127, 127 (1944). The New York Times publication of The Pentagon Papers has been called virtual if not actual treason. N.Y. Times, June 17, 1971, at 18, col. 6. 6. Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971). See Time, Inc. v. Pape, 401 U.S. 279 (1971); Greenbelt Coop. Publ. Ass'n v. Bresler, 398 U.S. 6 (1970); New York Times Co. v. Sullivan, 376 U.S. 254 (1964). 7. 50 U.S.C. App. § 462 (1970). 8. Braden v. United States, 365 U.S. 431, 444-46 (1961) (dissenting opinion). 31-658 O-74-30 |