order I would refuse to carry out, and I would expect any subordinate to refuse to carry out such an order. Mr. COHEN. Thank you, sir. Mr. KASTENMEIER. The gentleman from Iowa, Mr. Mezvinsky. General, I have only one question. You pointed out that you sympathize with those that could have had a moral and conscientious objection to being involved in a war that they felt was very unjust. And you indicated that you would hurt for this man. Do you think that by sending him to prison, it would have a rehabilitative effect or would have a healing effect? What good can come from sending these people to prison? General BENADE. I did not add that I thought those individuals should go to prison, sir. My personal belief is that such individuals should return to proper control. If it is a deserter, to military control, and if it is a civilian, to civilian control. I think a forum is available to them either in the civilian courts or in the military courts or through other processes to establish the basis for their refusal to abide by the law. I am simply saying I do not think you can generalize, sir. I think each case has to be handled on its merits. Mr. MEZVINSKY. Taking the strict interpretation you have given concerning the law, if they have violated that law, they will be subject to going to prison, is that not correct? General BENADE. They would certainly be subject to it, sir. I think the burden must, under our system, be on the individual to provide the basis whereby his neighbors or a jury of his peers, if it is a trial, will accept or reject the reasons the man gives. These circumstances and mitigation can be developed, if theer are any present. Mr. MEZVINSKY. Then would you agree or not with the statement that if such a person was sent to prison, it would not have a rehabilitative effect? General BENADE. It could. It depends on the individual. The whole theory, after all, of our penal system, is that it is supposed to have a rehabilitative purpose. How well it succeeds is another story. Mr. MEZVINSKY. Thank you, Mr. Chairman. I have no further questions. Mr. KASTENMEIER. Does the gentleman from Utah have any questons? Mr. OWENS. No, I have no questions. Mr. KASTENMEIER. In which case, the committee is indebted to you for your appearance this morning, General Benade, and for your testimony. In order that the record be complete, I am placing in the record an exchange of correspondence between the subcommittee and the Department of Defense relating to amnesty. [The correspondence referred to follows:] ASSISTANT SECRETARY OF DEFENSE, Hon. ROBERT W. KASTEN MEIER, DEAR MR. KASTEN MEIER: This is in reply to your letter of February 20, 1974, to the Secretary of Defense requesting information on several subjects. Answers to your questions follow. (1) How many persons who were absent without leave or deserted during the period from 1963 to 1973 have never returned to military custody? Our records on deserters (those who were absent for 30 days or longer) who have not returned to military control begin on July 1, 1966. As of December 31, 1974, 28,661 deserters remain at large. (2) How many persons during the period from 1963 to 1973 were prosecuted under the Uniform Code of Military Justice for desertion? During fiscal year 1963–1973, 3,919 persons were prosecuted under the Uniform Code of Military Justice for the offense of desertion. 3. How many veterans of military service during the period from 1963 to 1973 have been discharged with other than an honorable discharge? Discharge statistics for the period fiscal year 1963 to fiscal year 1973 are as follows: Under Honorable Conditions: Honorable (94.19%). General (3.20%) Total (97.39%) Under Other Than Honorable Conditions: Undesirable (2.18%) Total (2.61%) Total discharged fiscal year 1963-fiscal year 1973. I trust that this information will be of assistance to you. Sincerely, 8, 837, 587 300, 078 9, 137, 665 204, 920 36, 510 4, 042 245, 472 9, 383, 137 LEO E. BENADE, Deputy Assistant Secretary of Defense. Hon. JAMES R. SOHLESINGER, Secretary of Defense, Department of Defense, MY DEAR MR. SECRETARY: The Subcommittee on Courts, Civil Liberties, and the Administration of the House Committee on the Judiciary has scheduled hearings for March 7 and 8 on several measures relating to the subject of amnesty. In order that the Subcommittee might be informed as to the scope of the problem, I would appreciate your supplying us, prior to the hearings, with answers to the following questions: (1) How many persons who were absent without leave or deserted during the period from 1963 to 1973 have never returned to military custody? (2) How many persons during the period from 1963 to 1973 were prosecuted under the Uniform Code of Military Justice for desertion? (3) How many veterans of military service during the period from 1963 to 1973 have been discharged with other than an honorable discharge? Your cooperation in replying to this request by March 1 would be most helpful. Sincerely yours, ROBERT W. KASTEN MEIER, Chairman, Subcommittee on Courts, Civil Liberties, General BENADE. Thank you, sir. and the Administration of Justice. Mr. KASTENMEIER. And should we have further questions we can submit them to you by letter? General BENADE. Yes. Mr. KASTENMEIER. Thank you very much. General BENADE. Thank you, sir. Mr. KASTEN MEIER. The Chair observes the lateness of the hour and we have a number of witnesses left. In the interests of expedition, I would like to call on Congressman Dellums, who has a very brief statement, rather than to hold him here at considerable length. It is a pleasure to greet the gentleman from California, the Honorable Ronald Dellums. TESTIMONY OF HON. RONALD V. DELLUMS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA Mr. DELLUMS. Thank you, Mr. Chairman, members of the committee. I am extremely pleased to appear before this subcommittee as it begins hearings on amnesty. I came to Congress with opposition to our adventurism in Southeast Asia as my No. 1 priority, and it is obvious that the legacy of the war is still with us, and can be found behind so many of the major issues of the day. Although unfortunately our tragic involvement in Indochina continues, the job is now left to professionals, and not a citizen army. It is therefore appropriate at this time to consider the question of amnesty. Who needs amnesty? Not the politicians who led us into the war. Not the bureaucrats who consistently distorted the facts of the situation. Not any of the Congressmen and Senators who voted for the war. Not Lieutenant Calley, who has been declared useful to society. Not any of the thousands of young men with money or connections who evaded the draft in entirely legal ways-through higher education, the Reserves, exempted jobs, or conscientious objector status. The people who need amnesty are not in a position to plea-bargain in return for suspended sentences. They could not claim privileges of any kind or demand immunity from indictment. They have few votes and little influence, and nothing much politically will happen to Congressmen who make these powerless people their enemy. They are the young men who were too unlucky, or too inexperienced, or too principled to find an easy way of avoiding direct responsibility for the horrors of an insane war-horrors that the rest of us viewed and argued about from a distance. I am not going to speak at length about whether we should grant amnesty. The main reason for supporting amnesty is not to save these young men and their families, but to save our own souls-from easy self-righteousness and the indifference of power. However, I would like to say just a few words about the method of granting amnesty. I support a general, unconditional amnesty and I believe this is the most fair and efficient way of accomplishing the purposes of amnesty legislation. My bill, H.R. 3100, was designed to carry out this approach. We much first decide a basic question of purpose; do we want to make sure that everyone worthy returns to society, even at what some in our society will call the risk of erring on the side of generosity? Or do we want to make sure that everyone pays their price and that no one gets anything they don't deserve?' Most amnesty proposals have this second purpose. Authors of these type proposals have greater confidence in the moral wisdom and inherent fairness of governmental processes than I have. They claim that the case-by-case approach is the only just one, because of the diversity of individual circumstances and motives. I am aware of the many distinctions among deserters and evaders. It is precisely for this reason that I advocate a general amnesty approach. It would require the wisdom of Solomon to give everyone exactly what they deserve in this complicated and controversial area, and the case-by-case approach promises no greater success in achieving this goal than any other-especially if those called upon to decide are arbitrarily selected bureaucrats or local judges with their vastly differing opinions and outlooks. It should be clear that general amnesty does not imply that nonrelated offenses are forgiven or expunged from the record. If a person went AWOL to escape prosecution for murder or theft, my bill will allow him to return, but only to face these charges again. My bill sets up an Amnesty Commission, but only to handle what is left over after the bulk of the cases have been handled by automatic provisions. Although I believe that the more automatic amnesty is, the better it is for both the young men involved and ourselves, there should be some provision for handling special cases and exceptions. Another area to which my bill pays special attention is the legal consequences of amnesty. If amnesty is to be meaningful, it must not only protect the individual from criminal prosecution, but include removal of any mention of relevant offenses from all records-the granting of honorable discharges where appropriate—and the nullification of any other legal consequences. In our complicated, competitive society, where a person is so much a prisoner of the records kept of his past, anything less would be a joke. To sum up, Mr. Chairman and members of the committee, I believe a general, unconditional amnesty would be less expensive, would cause less bitterness, would be ultimately much more fair-in fact, would accomplish the aims of amnesty far better than any other approach. While other, more cumbersome proposals have been described as moderate compromises, in reality they reflect the same unbounded confidence in the moral wisdom of the establishment that got into the illegal, immoral, and insane war in Indochina in the first place. I believe the deliberation of the subcommittee will be helped by some of the excellent articles that have appeared on amnesty and the individuals who are directly involved, since they bring out the human reality of the question. With the permission of the subcommittee, I would like to submit these for the record. Mr. KASTENMEIER. Without objection, we will receive your statement and the articles. [The documents referred to follow:] STATEMENT ON AMNESTY BY RONALD V. DELLUMS Mr. Chairman, Members of the Sub-Committee, I am extremely pleased to appear before this Sub-Committee as it begins hearings on amnesty. I came to Congress with opposition to our adventurism in Southeast Asia as my number one priority, and it is obvious that the legacy of the war is still with us, and can be found behind so many of the major issues of the day. Although unfortunately our tragic involvement in Indochina continues, the job is now left to professionals, and not a citizen army. It is therefore appropriate at this time to consider the question of amnesty. Who needs amnesty? Not the politicians who led us into the war. Not the bureaucrats who consistently distorted the facts of the situation. Not any of the Congresspersons and Senators who voted for the war. Not Lt. Calley, who has been declared "useful to society." Not any of the thousands of young men with money or connections who evaded the draft in entirely legal ways-through higher education, the Reserves, exempted jobs, or Conscientious Objector status. The people who need amnesty are not in a position to plea-bargain in return for suspended sentences. They could not claim "privileges" of any kind or demand immunity from indictment. They have few votes and little influence, and nothing much politically will happen to Congressmen who make these powerless people their enemy. They are the young men who were too unlucky, too inexperienced, or too principled to find an easy way of avoiding direct responsibility for the horrors of an insane war-horrors that the rest of us viewed and argued about from a distance. I am not going to speak at length about whether we should grant amnesty. I believe in unwaivering terms that we must. The main reason for supporting amnesty is not to save these young men and their families, but to save our own souls-from easy self-righteousness and the indifference of power. However, I support a general, unconditional amnesty and I believe this is the most fair and efficient way of accomplishing the purposes of amnesty legislation. My bill H.R. 3100, was designed to carry out this approach. We must first decide a basic question of purpose: Do we want to make sure that everyone worthy returns to society, even at what some would call the risk of erring on the side of generosity? Or do we want to make sure that everyone "pays their price" and that no one gets anything they don't deserve? Most amnesty proposals have this second purpose. Authors of these type proposals have greater confidence in the moral wisdom and inherent fairness of governmental processes than I have. They claim that the case-by-case approach is the only just one, because of the diversity of individual circumstances and motives. I am aware of the many distinctions among deserters and evaders. It is precisely for this reason that I advocate a general amnesty approach. It would require the wisdom of Solomon to give everyone exactly what they "deserve" in this complicated and controversial area, and the case-by-case approach promises no greater success in achieving this goal than any other-especially if those called upon to decide are arbitrarily selected bureaucrats or local judges with their vastly differing opinions and outlooks. It should be clear that general amnesty does not imply that non-related offenses are forgiven or expunged from the record. If a person went AWOL to escape prosecution for murder or theft, my bill will allow him to return, but only to face these charges. My bill sets up an Amnesty Commission, but only to handle what if left over after the bulk of the cases have been handled by automatic provisions. Although I believe that the more automatic amnesty is, the better it is for both the young men involved and ourselves, there should be some provision for handling special cases and exceptions. Another area to which my bill pays special attention is the legal consequences of amnesty. If amnesty is to be meaningful, it must not only protect the individual from criminal prosecution, but include removal of any mention of relevant offenses from all records-the granting of honorable discharges where appropriate and the nullification of any other legal consequences. In our complicated, competitive society, where a person is so much a prisoner of the records kept of his past, anything less would be a joke. To sum up, I believe a general, unconditional amnesty would be less expensive, would cause less bitterness, would be ultimately much more fair-in fact, would accomplish the aims of amnesty far better than any other approach. While other, more cumbersome proposals have been described as "moderate compromises," in reality they reflect the same unbounded confidence in the moral wisdom of the Establishment that got us into Indochina in the first place. I believe the deliberation of the Sub-Committee will be helped by some of the excellent articles that have appeared on amnesty and the individuals who are directly involved, since they bring out the human reality of the question. With the permission of the Sub-Committee, I would like to submit these for the record. I would like to thank the Sub-Committee for their attention and for the interest in Amnesty legislation. |