The Case for Amnesty

We do not have and, in the circumstances, we cannot have accurate statistics on desertion and draft evasion for the past seven years. It seems likely that desertion has been as high in the war in Southeast Asia as in any other war in which we have been involved, although since draftees were allowed to buy substitutes during the Civil War, the comparison is bound to be faulty. In 1970 the desertion rate in Vietnam was 52 per thousand—twice the rate of the Korean war. In 1971, up to September, the rate was 73.5 per thousand. Many of these deserters were subsequently returned to military control. As for draft evaders, estimates run between fifty and one hundred thousand, but since many potential draftees took cover before being formally inducted, these figures are almost meaningless.

This high incidence of desertion and draft evasion is not, I submit, a commentary on the American character, but a commentary on the war; after all, there was neither large-scale desertion nor draft evasion in World War II, and the national character does not change in a single generation. What is by now inescapably clear is that the Vietnam war is regarded by a large part of our population—particularly the young—as unnecessary in inception, immoral in conduct, and futile in objective. What is clear, too, is that more than any other war since that of 1861-65 it has caused deep and bitter division in our society. The task confronting us is therefore not dissimilar to that which Presidents Lincoln and Andrew Johnson faced; it is not merely that of ending the conflict in Asia but of healing the wounds of war in our own society, and of restoring—it is Jefferson speaking—“to social intercourse that harmony and affection without which liberty and even life itself are but dreary things.”

Both the term and the concept of amnesty are very old. The word is Greek—amnestia—and means forgetfulness, oblivion, the erasing from memory.^* I cite this not out of pedantry but because it illuminates the problem that Senator Taft of Ohio has raised: whether there can in fact be conditional amnesty. Can there be partial oblivion, can there be a qualified erasing from the memory? Can draft evaders who take advantage of the amnesty proposed by Senator Taft—working out and presumably expiating their sins for a period of up to three years—during these years of forced service forget or erase from their memory this unhappy chapter of their history and ours? After the guns have fallen silent and the bombs have ceased to rain down on Vietnam and Laos, will deserters who are tried and punished for their military offenses be able to put the war out of their minds?

And indeed while these unfortunates are doing penance in various ways, will the nation be able to forget the deep moral differences that animated those who fled their country or their regiments rather than violate their consciences? If it is oblivion we want, or even reconciliation and harmony, we shall not achieve any of them by this labyrinthine route.

The question of amnesty and/or pardon to draft evaders and deserters is not really a legal or constitutional question. There is not doubt about the constitutional right of the President to grant pardon and to proclaim amnesty, and none about the Congressional right to enact amnesty, nor is there any constitutional obligation for either President or Congress to take any action at all. The argument for amnesty is threefold: historical, practical, and ethical. It is to the interesting question of experience, the illuminating question of expedience, and the elevated question of moral obligation that we should address ourselves.

We may dispose of the history summarily, though one chapter of it is relevant. The American Revolution was a civil war. Those who supported the Crown, whom John Adams estimated as one-third of the population, were exposed to the obloquy and persecution that attend most civil wars. They suffered deprivation of position, confiscation of property, physical violence, and exile. During and after the war some 80,000 Loyalists fled the country, mostly to Canada. A few returned, but both public opinion and legislation were so hostile to Loyalists that most preferred exile. Thus for want of magnanimity and vision, the new nation, which needed all the resources that it could obtain, lost a large and valuable segment of its population, established in Canada a body of United Empire Loyalists whose unifying principle was hostility to the United States, and earned an international reputation for harshness and rancor.

Desertion was, as we all know, endemic in Washington’s army—which all but melted away at Valley Forge—but after the war was over no effort was made to punish wartime deserters. As President, Washington established the precedent of generosity for those guilty (or allegedly guilty) of insurrection: he proclaimed amnesty for participants of the Whiskey Rebellion, observing, in words that are pertinent today, “Though I shall always think it a sacred duty to exercise with firmness and energy the constitutional powers with which I am vested, yet my personal feeling is to mingle in the operations of the Government every degree of moderation and tenderness which justice, dignity, and safety may permit.”

John Adams took the same attitude toward the so-called Fries Rebellion of 1799, granting “a full, free and absolute pardon to all and every person concerned in said insurrection.” Jefferson in 1807 pardoned all deserters from the army of the United States who returned to their units within four months; Madison issued no fewer than three proclamations of the same nature, covering deserters in the War of 1812. President Jackson’s Amnesty of June 12, 1830, had an interesting twist to it: he pardoned all deserters from the army provided they would never again serve in the armed forces of the United States!

It is the Civil War that provides us with the best analogies and, I think, the best models for our own time. Desertion from both Union and Confederate armies was roughly 10 percent—perhaps higher. Draft evasion was widespread and flagrant, complicated in the North by what was called “bounty-jumping,” that is, multiple enlistments and desertions designed to collect bounties. While neither draft dodgers nor deserters were a danger in the North, they were in the South: it was said—on what authority it is not clear—that, in 1864, there were more deserters and draft evaders in the mountains of the Carolinas than there were soldiers in Lee’s army. Appomattox put an end to the problem in the South; no action was taken against either deserters or draft evaders after the end of the war in the North.

What is illuminating, however, is the attitude of Presidents Lincoln and Johnson toward Southerners who had engaged in rebellion and were, technically, guilty of treason. Should they be brought to justice, and punished? Should states that had joined the Confederacy be punished? Lincoln’s position was clear and consistent. Even during the war he issued a series of amnesty proclamations designed to bring Confederates back into allegiance and to get government in operation in the South. He had been unwilling to “let the erring sisters go in peace”—as Horace Greeley recommended—but he was ready to let them return in peace. Congressional radicals wanted to punish the South for its treason by excluding the Southern states from full membership in the Union: in the end, as we know, they succeeded at least in part.

Lincoln would have none of this; indeed he regarded the question of the legal status of the Confederate states as “a pernicious abstraction.” “Finding themselves safely at home,” he said—which might be said of our draft evaders who, after all, did not bear arms against the United States—“it would be utterly immaterial whether they had ever been abroad.” How fascinating is Gideon Welles’s recollection of that last cabinet meeting which discussed the question of capturing Confederate leaders and bringing them to trial. “I hope there will be no persecutions,” said Lincoln, “no bloody work after the war is over. No one need expect me to take any part in hanging or killing those men, even the worst of them…. Frighten them out of the country, open the gates, let down the bars, scare them off—“ and opening his hands as if scaring sheep, “enough lives have been sacrificed.”

Who can doubt, now, that Lincoln’s policy of magnanimity was wiser and more farsighted than the radical one of punishment? Even the radicals were not vindictive by modern standards. How gratifying it is to recall that the United States put down the greatest rebellion of the nineteenth century without imposing on the guilty any formal punishment. Not one leader of the defeated rebels was executed; not one was brought to trial for treason. There were no mass arrests, no punishment even of those officers of the United States Army and Navy who had taken service in the Confederacy. No Confederate soldier was required to expiate his treason, or his mistake, by doing special service; none was deprived of his property—except property in slaves—or forced into exile by governmental policy. What other great nation, challenged by rebellion, can show so proud a record?

We can dispose with lamentable brevity of the record in the present century, for it is a brief record. There was no general amnesty for draft evaders or deserters after World War I. Indeed those guilty of violating the Espionage and Sedition Acts—among them Eugene Debs—languished in jail while President Wilson was in the White House. That dangerous radical, Warren G. Harding, gave Debs a partial pardon, and his equally radical successor, Calvin Coolidge, released most of those who were still in jail when he came to the Presidency.

No major war in which we have engaged saw fewer desertions or draft evasions than World War II—a war which almost all Americans thought necessary and just. Yet when Vice-President Truman came to the Presidency, in 1945, there were some 15,000 draft evaders and other offenders against the military law in federal custody. Truman appointed a committee, headed by Justice Owen Roberts, to advise him on what action he should take. The committee advised against a general amnesty and recommended individual consideration of each case. This advice was accepted; only one-tenth of those in jail, however, were actually released—not a very gratifying result.

One final observation and we are finished with our historical recapitulation. Confronted with acts of hostility against the nation incomparably more serious than those alleged against our deserters or draft evaders, France, Norway, Belgium, the Netherlands, and Japan all granted partial amnesty to those large segments of their populations who had engaged in disloyal activities. It is perhaps even more pertinent to recall that that great soldier and statesman, General de Gaulle, proclaimed a general amnesty to almost all those who had resisted—even by arms—the government of France during the Algerian crisis. In all this we are reminded of what that other great soldier and statesman, Winston Churchill, said, “There must be a blessed act of oblivion.”

More important than historical precedents, however illuminating, are considerations of wisdom and of morality. Here we come, I think, to the heart of the matter. A nation does not adopt important policies—policies affecting the lives of hundreds of thousands of its young people, and affecting the social and moral order itself—out of petulance or vindictiveness. It bases its judgment rather on the interests of the commonwealth. Nor do statesmen indulge in what Lincoln called “pernicious abstractions”—abstractions about whether magnanimity to some will somehow be unfair to others: after all, who knows what is ultimately just, or what will ultimately satisfy the complex passions of a vast and heterogeneous society? We should make our decisions on the question—complex enough to be sure—of what appear to be the long-range interests of the nation.

When we consider the problem of amnesty in this light, several considerations clamor for our attention:

1. Those who deserted either the draft or the army were not young men indulging themselves in reckless irresponsibility, or confessing cowardice. They were, and are—we must concede this in the face of so large a resistance—acting sincerely on conscience and principle. After all, this is the position that wise and objective judges of the Supreme Court accepted in both notable conscientious objector cases—US v. Seeger (1965) and Welsh v. US (1970).

We must put aside for the time being the question whether the deserter-evaders are right in their convictions, or whether those who oppose them are more nearly right. What we cannot deny is that the vast majority of them acted on principle; that they felt—what it is probable the majority of the American people now feel—that the war in which they were required to participate was misguided and immoral; they rejected it therefore on moral grounds. This is a position the American people have always respected—not only in questions of military service but in other large issues of public policy: the obligation to return fugitive slaves to their masters, for example.

It is a principle, too, we have respected in others. It is not the “redcoats” who laid waste the countryside in the American Revolution that we remember and admire, but those back in Britain who thought the war on the colonies a wicked war and refused to have any part in it: Jeffrey Lord Amherst, for example, who refused to resume active service against the Americans, Lord Admiral Keppel, who refused to serve against the Americans, Lord Frederick Cavendish, who sat the war out, the Earl of Effingham, who turned in his commission rather than fight in America—and was thanked for this by the corporations of London and Dublin!

1. Nor can we overlook another consideration. In many ways the deserters and draft avoiders of today are like the “premature antifascists” of the 1930s, who suffered persecution during the Joseph McCarthy era because they had fought fascism abroad before the country caught up with them. May we not say that most of those who have deserted or gone underground merely took “prematurely” the position that most Americans now take; more, that they took prematurely the position that the government itself now takes: that the war was and is a mistake, that we should extricate ourselves from it as expeditiously as possible, and that the whole enterprise of fighting a war designed primarily to “contain” China looks absurd at a time when our President has gone to China to arrange closer relations with her? May not the deserters and evaders claim that their error is to have been ahead of public opinion and of government policy, and that it should be easy to forgive this error?
2. There is a third consideration which affects a substantial number of those with whom amnesty is now designed to deal—a group who may be designated premature moral objectors. For as we all know, the legal interpretation of what constitutes acceptable objection on grounds of conscience has changed. That change began as early as 1965, in the notable case of the US v. Seeger (380 US 163), which extended exemption from the draft to those who embraced a “belief in and devotion to goodness and virtue for their own sakes, and a religious faith in a purely ethical creed.”

Speaking through Mr. Justice Clark the Court held that Seeger was entitled to exemption “because he decried the tremendous spiritual price man must pay for his willingness to destroy human life.” But in 1965 the Court still required, as a legal basis for exemption, some belief, however vague or remote, in a Supreme Being. By 1970, however, the Court was prepared to accept moral and ethical scruples against the war as meeting the requirements that the Congress had set for exemption on account of conscience. That requirement, wrote Justice Black, “exempts from military service all those whose consciences, spurred by deeply held moral, ethical or religious beliefs [italics mine], would give them no rest or peace if they allowed themselves to become a part of an instrument of war” (398 US 333, at 344).

Clearly if those whose opposition to war is based not on formal religious beliefs but on moral and ethical principles are now exempted from service, then those with the same beliefs who were denied CO exemption in the past have an almost irresistible claim on us for pardon or amnesty.

There are, to be sure, some serious objections to be met. Not the objections inspired by passion, by prejudice, or vindictiveness; these must be left to that religion which so many feel the deserters and evaders have flouted, or to the healing force of time; but objections based on considerations of public policy. It is alleged, for example, that a sweeping amnesty would somehow lower the morale of the armed services. Quite aside from the observation that it is difficult to see how that morale could be any lower than it now appears to be, it is proper to say that there is no objective evidence to support this argument. It does not appear that amnesty worked this way in the past, in those relatively few instances where it was applied while the war was still going on. Nor is it irrelevant to note, for what it is worth, that there is strong support for amnesty from several veterans’ organizations today.

But would a sweeping amnesty make it more difficult for the United States to recruit or draft an army for another war? Such speculations are what Lincoln called “pernicious abstractions”: certainly Lincoln’s use of amnesty did not appear to have any effect whatever in later wars.

There is a further point here.’ Is there not something to be said for putting government on notice, as it were, that if it plunges the nation into another war like the Vietnam war, it will once again be in for trouble? After all, governments, like individuals, must learn by their mistakes, and though the process of teaching government not to make mistakes is often hard on those who undertake it, it is also often very useful. Southern states no longer threaten to secede; Congress no longer threatens to establish military government in states that do not behave themselves; whatever we may think about the dangers of alcoholism, we no longer try what was once called “the noble experiment” of Prohibition. If the war in Southeast Asia is a mistake from which we are even now extricating ourselves, is it just that we should punish those who—at whatever cost—helped to dramatize that mistake?

For almost a decade now our nation has been sorely afflicted. The material wounds are not as grievous as those inflicted by the Civil War—not for Americans anyway—but the psychological and moral wounds are deeper, and more pervasive. Turn and twist it as we may, we come back always to the root cause of our malaise, the war. If we are to restore harmony to our society and unity to our nation we should put aside all vindictiveness, all inclination for punishment, all attempts to cast a balance of patriotism or of sacrifice—a task to which no mortal is competent—as unworthy of a great nation. Let us recall rather Lincoln’s admonition to judge not that we be not judged, and with malice toward none, with charity for all, strive on to bind up the nation’s wounds.