(4 of 5)
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.