When Gerald Ford announced his conditional amnesty program last month, draft evaders and deserters seemed to have only two choices: either submit to the Government's terms and face up to 24 months of "alternative service," or remain on the lamfugitives at home or exiles abroad. In fact, there is also the option of fighting in the courts to win complete freedom. Last week the American Civil Liberties Union announced that it would help that fight by supplying full and free legal services to any evader or deserter.
Waived Rights. Henry Schwarzschild, director of the A.C.L.U.'s Project on Amnesty, argues: "The clemency program is punitive. It is not only devoid of any sense of mitigation and clemency, but it is also packed with procedural infirmities, which we will definitely challenge." The A.C.L.U. is particularly concerned about the fact that a man volunteering to enter the amnesty program must agree to waive many Fifth and Sixth Amendment rights (protection against self-incrimination and double jeopardy, as well as the guarantees of due process and a speedy trial). He must also promise not to use the statute of limitations as a defense if he is prosecuted for failing to live up to the amnesty conditions. Government officials claim the waivers are necessary to preserve a case against an amnesty applicant if he later drops out of the program.
In some cases, deserters and evaders could conceivably clear their names if their draft boards were guilty of practices that have been thrown out or modified in a number of recent court rulings. Among them:
> In 1970, the Supreme Court held that the beliefs of a conscientious objector need not be based on religion, as draft boards had required. One appeals court then ruled that any man who could show that he did not bother seeking C.O. status because of the religion rule may raise the claim retroactively.
> The courts have said that draft boards had to give specific, cogent reasons for rejecting deferment applications. They were also required to consider formally claims of physical disability. Many boards did not do so, and men who can prove it can offer that as a legal defense.
> The Supreme Court in 1969 ruled that it was "blatantly lawless" for draft boards to declare a man "delinquent" (and move him to the top of the list) for failure to comply with a Selective Service regulation. Men treated in that manner may also have a case.
The legal situation obviously varies from man to man, and because of the distinctions between evaders and deserters, the latter may find it more difficult to get off in court. But the Army appears eager to process and be rid of deserters; moreover, if the freshly discharged deserter skips out of alternative service, the Army cannot do anything unless it is able to prove that he intended to do so when he applied for amnesty. As for evaders, even a few Justice Department lawyers have been heard to admit that many would be better off going to court rather than taking the amnesty route. David Addlestone, who directs the A.C.L.U. military rights project, says that if each evader "had an experienced attorney, the Government would ultimately getat the most a 25% conviction rate."