The Pros and Cons of Granting Amnesty

SHOULD draft resisters and deserters be given amnesty? Or should they continue to be prosecuted and forced to remain in exile? The question is one of the most difficult the country confronts as the bitter war winds to its conclusion. Until recently, even longtime opponents of the war have shied away from this emotionally charged issue. President Nixon, his chin outthrust, answered the question with one firm word--no--at a press conference in November. But with an end to the war in sight and an all-volunteer Army on the near horizon, the topic is gaining currency. Ohio's Republican Senator Robert Taft Jr., a Republican with impeccable credentials, went so far last month as to introduce a bill to grant amnesty to draft resisters--with the stiff provision that it be coupled with three years in compensatory military or civilian federal service.

Others would go much further.

Groups are being formed round the country to bring pressure to bear on Congress and the Administration to grant amnesty, and the American Civil Liberties Union is opening an office in New York this week to coordinate their efforts. The question may be one of the emotional issues of the presidential campaign. Though the Democratic front runner, Senator Edmund Muskie, believes that the matter should not even be discussed until the war is over, other Democratic contenders, Senator George McGovern and New York's Mayor John Lindsay, have taken positions in direct opposition to Nixon. McGovern has announced that if he is elected, he will grant amnesty to all draft resisters (but, like Taft, he would not give it to deserters). Lindsay has taken a position similar to Taft's, though he would require two, rather than three years of work in the national interest.

The new youth vote will probably favor amnesty. "If a candidate expects to have young people going door to door in his behalf, he'd better get right on amnesty," says Charles Porter, a former Congressman from Oregon and head of the National Committee for Amnesty Now. Many older people, especially those who have had sons in Viet Nam, would undoubtedly be just as vehemently against it. The political advantages on either side are difficult to assess, but on balance, it seems that this year a position that favors complete amnesty, without some kind of compensatory work, would be a political minus that could cost any candidate votes from the center.

Yet the issue itself transcends politics and comes down to a basic moral question: Is amnesty justified under the circumstances?

The first recorded amnesty was granted by Athens in 403 B.C. to most of those who had collaborated with Athens' Spartan conquerors after the Peloponnesian War. (The word itself is from the Greek amnestia, which means "forgetfulness.") The Romans, on occasion, continued the custom, which they called restitutio in integrum, and many other states since then have granted amnesty to achieve reconciliation after a civil war or a period of internal strife. France, which has seen more such conflict than most countries, has made amnesty almost a habit; the latest example occurred in 1968 when right-wing opponents of Charles de Gaulle's Algerian policy were forgiven their earlier campaign of terror. Britain, with a more placid history, has had less reason to grant amnesty; it did so, however, after its civil war in the 17th century, after the Restoration of Charles II a few years later, and again in the 18th century to those who took part in the second Jacobite rebellion.

Like Britain, the U.S. luckily has not until now had much occasion to grant amnesty. There is precedent for it, however. George Washington pardoned those who participated in the so-called Whiskey Rebellion in 1794, and Abraham Lincoln offered forgiveness to lower-ranking members of the Confederacy in December 1863. That, of course, was 16 months before the end of the Civil War, and could be read as a shrewd tactical encouragement of defections. But Lincoln's successor, Andrew Johnson, extended the clemency to the South after the war, over the opposition of the Radical Republicans, as a way of bringing a divided nation back together. More to the point --and a better precedent for today's proponents of amnesty--would be the case of deserters from the Union itself. In March, 1865, just weeks before the war ended, Lincoln, with the approval of Congress, granted amnesty to all Union deserters, with the stipulation that they must return to their units within 60 days and serve out their enlistment periods. Those who chose not to take advantage of this offer lost their citizenship.

The question did not take on major proportions again until World War II. Sixteen months after V-J day, President Truman responded to public pressure and established a three-man Amnesty Board to determine whether those who had been convicted of refusing to fight should be further punished. The board was less than lenient, partially because World War II had wide popular support. Of the more than 15,000 cases considered, only about 1,500 men were pardoned, most of them on religious grounds. "Intellectual, political or sociological convictions" against the war were not accepted as excuses, and clemency was not granted to those who, in the board's words, "set themselves up as wiser and more competent than society to determine their duty to come to the defense of the nation."

Since the Viet Nam War is unlike any in the nation's history, perhaps no precedent should be sought in history. Nearly everyone, even those few who still favor pursuing the war, now agrees that the U.S. should never have become involved in the way it did. Why punish those, ask the proponents of amnesty, who saw the light first? Many Americans have been against the war, but because they were ineligible through age, sex or infirmity, were not forced to back up their beliefs with their lives and careers. Why persecute those who, because they were young and eligible, did put their lives behind their convictions? Those now in exile or in jail, add the supporters of amnesty, include some of the most intelligent, the best educated and the most passionately concerned men of their generation. Most of them are a gain for their homes of exile, particularly Canada, where the majority live, and equally clearly, they are a great loss to the U.S. Why should the country so willingly, even perversely, suffer such a drain on its talent and spirit?

Beyond that, there is a practical argument in favor of amnesty. Many deserters, perhaps a majority, are already being quietly discharged, mostly because many military commands are unwilling to go through complicated prosecution procedures. The most celebrated recent example was the case of eight sailors who deserted last October from the carrier Constellation as it made ready to depart for Indochina, and took refuge in a San Diego church. All received a general discharge from the Navy under honorable conditions, which carries no penalty and only slight stigma. Is it fair to let some go and not others, or to create a situation in which it is wiser to desert than to resist the draft? The FBI, after all, boasts of its record in catching resisters. Uneven justice is no justice. Another highly persuasive argument for amnesty: no other action could be as effective in persuading the young that once again they can trust the humanity of their Government. In this sense, amnesty would serve its traditional function: healing angry wounds.

The case against complete amnesty is more compelling, however. Perhaps 70,000 men evaded the war--though no one has anything like an accurate figure. What about the 3,000,000 others who fought in it, 55,000 of whom died? In effect, say its opponents, amnesty would tell the man who fought or was wounded--or the survivors of the man who died--that he should have had better sense and sat out the war in Stockholm or Toronto. This is the emotional crux of the problem: Would it be fair to those who fought to forgive those who refused?

More practically, how could the U.S. ever field an army of draftees again if it established the precedent that draft evasion will be forgiven? An act of compassion and mercy now, however well-intentioned, might cost the country its freedom at some time in the future. And while amnesty might reconcile one group, say the opponents, it would embitter many Americans. Healing some wounds, it would exacerbate others, they contend. Senator Taft can attest to the bitterness of those who oppose amnesty. He asked one protester what should be done about draft evaders if his plan is rejected. The answer: "Shoot them."

One further technical point against amnesty is the difficulty in separating the draft evader from the deserter, as Senators McGovern and Taft both do. They would give amnesty only to resisters, presumably on the premise that it is not as bad to avoid service as it is to desert once in. Desertion still sounds like unpardonable cowardice to most Americans. In a sense, this distinction may be discriminatory. An uneducated farm boy from Mississippi probably would not have had the knowledge to evade the draft; any college boy could pick it up in an hour. Or, on the other hand, perhaps the deserter did not oppose the war until he saw it firsthand. Should he therefore be penalized? If amnesty is granted, it should in fairness be given to both draft evaders and deserters.

After all the other arguments are made, two bedrock questions remain, one profoundly moral, one eminently practical. Does the individual have the right to decide which laws or which wars he will support? If he does, can the U.S. Government--or any government--survive? The draft evaders and deserters claim that they are serving a higher law than the Selective Service Law--the law of morality. They might quote St. Thomas Aquinas. "Human law," he wrote, "does not bind a man in conscience, and if it conflicts with the higher law, human law should not be obeyed." That is a maxim followed by all who have broken the law as a matter of conscience, from Thoreau and Gandhi to Martin Luther King and the brothers Berrigan. The principle that a man's conscience takes precedence over the dictates of his government was reinforced at the Nuremberg war crimes trials, which rejected the claims of Hitler's lieutenants that they were only following orders.

Historically, however, democratic states have countered that they represent the people's will and the people's morality. They are merely instruments, not ends in themselves. If he has a legitimate means of registering his dissent, the citizen cannot take illegitimate means or decide for himself which laws he will obey and which he will disobey. "In war, and in the court of justice, and everywhere," Socrates told Crito before he drank the hemlock, "you must do whatever your state and your country tell you to do, or you must persuade them that their commands are unjust." For each man unilaterally to veto the law would create anarchy--a kind of immorality of its own. The precedent of Nuremberg, it might be added, applied only to the high officials of the Nazi government, those who had substantial freedom. The ordinary officer or soldier was not held responsible because he did not have the right to question Hitler's orders.

Yet there are some laws, even in a democratic society, that are so unjust that any man of conscience and determination cannot obey them. Segregation laws that discriminate against race are the best recent example in the U.S. Opponents of the war would say that service in Viet Nam is another. In that case, the conflict between the two arguments is in a sense insoluble, and the answer is not at all satisfactory: the law must be disobeyed, but the law's penalty must be accepted. That is the solution of the Thoreaus, the Gandhis and the Kings, and it must be the solution for the current resisters and deserters as well. The country can appreciate their courage and their convictions, but cannot excuse them from the consequences of breaking the law.

To say this, however, does not exclude mercy or suggest a vengeful policy. After the war finally ends and passions have cooled, a conditional amnesty should be granted. Under it, the exiles should be offered the right to return, and those imprisoned for draft resistance should be released--provided that they are willing to accept certain conditions. One of these might be some kind of compensatory service, perhaps, as has been proposed, in a poverty program or in the peacetime military. That is far from an ideal solution --but it may just be the best.

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