I've posted a bit on Burn's and Novik's documentary on the Vietnam War. During the documentary a couple of people where interviewed who had fled to Canada during the war. One renounced his citizenship later on, to his regret.
I also recently reported on laws and the Federal government ignoring them, which is sort of related to this, although not purely.
As most people know, there were a series of pardons, not all at the same time, that are connected with this. It didn't happen all at one time, as people sometimes recall. President Ford first offered conditional amnesty to draft evaders. Then, on this day, forty years ago, President Carter pardoned those who evaded the draft. Those who deserted the armed forces, however, and those who were convicted of acts of violence while protesting, were not pardoned for those offenses.
This all followed, of course, President Ford's pardoning of Richard Nixon. Yes, I know that these things are in no way whatsoever related. Except, I suppose, in terms of the era in which they occurred.
I've been very surprised, quite frankly, about how much this still impacts me, oddly enough. I was 14 years old when Carter pardoned the draft evaders. As a kid I didn't think he should.
I still don't.
For that matter, I don't think Nixon should have been pardoned either.
Let's take these up separately. As Nixon's pardon happened first, let's take it up first.
Richard Nixon resigned in disgrace on August 9, 1974. While he resigned in disgrace, as a result of the fallout of the coverup of Watergate, his resignation did spare the country an impeachment trail, which was at least in part his motivation. At least that was noble on his part, as that trial would have been destructive in the extreme, even more so than the trial of William Clinton which has been destructive enough.
A confident looking Gerald Ford. His Presidency was afflicted by problems not of his own making.
He was subsequently pardoned on September 8, 1974 by Gerald Ford. President Ford believed that this would help bring about healing in the nation after the turmoil that the entire Watergate episode brought. Maybe it did.
The text of that pardon reads as follows:
By the President of the United States of America a Proclamation
Richard Nixon became the thirty-seventh President of the United States on January 20, 1969 and was reelected in 1972 for a second term by the electors of forty-nine of the fifty states. His term in office continued until his resignation on August 9, 1974.
Pursuant to resolutions of the House of Representatives, its Committee on the Judiciary conducted an inquiry and investigation on the impeachment of the President extending over more than eight months. The hearings of the Committee and its deliberations, which received wide national publicity over television, radio, and in printed media, resulted in votes adverse to Richard Nixon on recommended Articles of Impeachment.
As a result of certain acts or omissions occurring before his resignation from the Office of President, Richard Nixon has become liable to possible indictment and trial for offenses against the United States. Whether or not he shall be so prosecuted depends on findings of the appropriate grand jury and on the discretion of the authorized prosecutor. Should an indictment ensue, the accused shall then be entitled to a fair trial by an impartial jury, as guaranteed to every individual by the Constitution.
It is believed that a trial of Richard Nixon, if it became necessary, could not fairly begin until a year or more has elapsed. In the meantime, the tranquility to which this nation has been restored by the events of recent weeks could be irreparably lost by the prospects of bringing to trial a former President of the United States. The prospects of such trial will cause prolonged and divisive debate over the propriety of exposing to further punishment and degradation a man who has already paid the unprecedented penalty of relinquishing the highest elective office of the United States.
Now, THEREFORE, I, GERALD R. FORD, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9, 1974.
IN WITNESS WHEREOF, I have hereunto set my hand this eighth day of September, in the year of our Lord nineteen hundred and seventy-four, and of the Independence of the United States of America the one hundred and ninety-ninth.
GERALD R. FORD
But it also allowed a President who had acted very badly in office to get away with his crimes. Indeed, the criminal extent of his activities may be broader than commonly remembered, as the documentary noted above explored. We recall, of course, his cover up of the Watergate break in. What is not nearly as well remembered, however, is that Nixon was also seemingly in contact with elements outside of official channels during the ongoing negotiations over the Vietnam War during his 1968 campaign and his activities may well have been treasonous. He was called out privately, and obliquely, on these activities by Lyndon Johnson but he was never called to account on them. Had he been subject to a Federal Grand Jury following his resignation he may well have been.
A better thing to do would have been to leave the possibility, and maybe the fact, of prosecution hanging over his head. No man is above the law, we're told. Nixon wasn't, and he paid for his crimes through his resignation, but judicial process was thwarted. The pardoning was a mistake. By letting Nixon off the hook there's been an implicit understanding that a President really doesn't need to overly worry about being called to account for illegal actions. Indeed, had Nixon been made to pay for his crimes through criminal prosecution it would have served not only as a lesson that no man is above the law but, moreover, that even Presidents in office can be called into account. Since Nixon's resignation we've seen Iran-Contra, undeclared wars, and the of course we have the turmoil going on now, all of which might have been deterred had Nixon served as an example of what can happen.
So Ford blundered in pardoning him.
And so too, in my view, was the pardoning of the draft evaders by Jimmy Carter on this day in 1977 an error.
Prior to this event there had been another action by Ford leading up to it. On September 16, 1974, President Gerald Ford, in a way sort of following up on closing the books on Watergate, started to close them on the Vietnam War, by issuing a conditional amnesty for draft evaders. The amnesty order, or text, provided:
By virtue of the authority vested in me as President of the United States by Section 2 of Article II of the Constitution of the United States, and in the interest of the internal management of the Government, it is ordered as follows:
SECTION 1. There is hereby established in the Executive Office of the President a board of 9 members, which shall be known as the Presidential Clemency Board. The members of the Board shall be appointed by the President, who shall also designate its Chairman.
SEC. 2. The Board, under such regulations as it may prescribe, shall examine the cases of persons who apply for Executive clemency prior to January 31, 1975, and who (i) have been convicted of violating Section 12 or 6(j) of the Military Selective Service Act (50 App. U.S.C. § 462), or of any rule or regulation promulgated pursuant to that section, for acts committed between August 4, 1964 and March 28, 1973, inclusive, or (ii) have received punitive or undesirable discharges as a consequence of violations of Article 85, 86 or 87 of the Uniform Code of Military Justice (10 U.S.C. §§ 885, 886, 887) that occurred between August 4, 1964 and March 28, 1973, inclusive, or are serving sentences of confinement for such violations. The Board will only consider the cases of Military Selective Service Act violators who were convicted of unlawfully failing (i) to register or register on time, (ii) to keep the local board informed of their current address, (iii) to report for or submit to preinduction or induction examination, (iv) to report for or submit to induction itself, or (v) to report for or submit to, or complete service under Section 6 (j) of such Act. However, the Board will not consider the cases of individuals who are precluded from re-entering the United States under 8 U.S.C. 1182(a) (22) or other law.
SEC. 3. The Board shall report to the President its findings and recommendations as to whether Executive clemency should be granted or denied in any case. If clemency is recommended, the Board shall also recommend the form that such clemency should take, including clemency conditioned upon a period of alternative service in the national interest. In the case of an individual discharged from the armed forces with a punitive or undesirable discharge, the Board may recommend to the President that a clemency discharge be substituted for a punitive or undesirable discharge. Determination of any period of alternate service shall be in accord with the Proclamation announcing a program for the return of Vietnam era draft evaders and military deserters.
SEC. 4. The Board shall give priority consideration to those applicants who are presently confined and have been convicted only of an offense set forth in section 2 of this order, and who have no outstanding criminal charges.
SEC. 5. Each member of the Board, except any member who then receives other compensation from the United States, may receive compensation for each day he or she is engaged upon the work of the Board at not to exceed the daily rate now or hereafter prescribed by law for persons and positions in GS-18, as authorized by law (5 U.S.C. 3109), and may also receive travel expenses, including per diem in lieu of subsistence, as authorized by law (5 U.S.C. 5703) for persons in the government service employed intermittently.
SEC. 6. Necessary expenses of the Board may be paid from the Unanticipated Personnel Needs Fund of the President or from such other funds as may be available.
SEC. 7. Necessary administrative services and support may be provided the Board by the General Services Administration on a reimbursable basis.
SEC. 8. All departments and agencies in the Executive branch are authorized and directed to cooperate with the Board in its work, and to furnish the Board all appropriate information and assistance, to the extent permitted by law.
SEC. 9. The Board shall submit its final recommendations to the President not later than December 31, 1976, at which time it shall cease to exist.
GERALD R. FORD
The White House,
September 16, 1974.
The fact that Ford did this so hard on the heels of his pardon of Nixon was not coincidental, in my view. He was shutting the doors on the entire Vietnam War era. They'd slam shut for good when Saigon fell with the US refusing to offer aid to the Republic of Vietnam in April of the following year.
While its not really clear from the text, what Ford's order did was to grant amnesty to evaders who hadn't fled the country and hadn't engaged in acts of violence against the US as long as they did two years of public service. In context, it split the competing desire to put the war behind the country but also not to dishonor those who reported for duty as the law required. While I'm not thrilled about that either I think that Ford's action do bear up under the test of time here.
Ford's conditional amnesty did a couple of significant things. It essentially recognized a deep felt opposition to the war as legitimate, but also recognized that national service was likewise legitimate. The two year service obligation was accordingly inserted to recognize that, allowing those who had evaded the draft peaceably to come up from under the weight of the crime, but also acknowledging that a debt of service was owed in an equal length to that for conscripted soldiers who served. It also refused to acknowledge violence against the United States or to forgive those who fled the country.
On that last item, whether intentional or not, it credited the long American history of protesting a governmental action but being willing to take your lumps. Going back at least as far as the Mexican War there had been those who refused to acknowledge a governmental action in war but had been willing to go to jail for it, Thoreau being a prime example. Martin Luther King had followed that tradition during the Civil Rights Movement resulting in the famous book Letters From A Birmingham Jail. The gist of it was that if you protest you have to be willing to accept the implications of the protest. Men who fled to Canada didn't do that.
Jimmy Carter, a legitimately decent person but not a very good President in all sorts of ways.
Ford of course lost his bid for reelection and Jimmy Carter came in. On this day in 1977 granted an unconditional pardon to draft evaders. This was his first day in office. As sweeping as that was, the pardon did not apply to deserters and there's never been a pardon that did. Still, Carter's actions were excessively broad in my opinion. His short text read:
BY THE PRESIDENT OF THE UNITED STATES OF AMERICA
Acting pursuant to the grant of authority in Article II, Section 2, of the Constitution of the United States, I, Jimmy Carter, President of the United States, do hereby grant a full, complete and unconditional pardon to: (1) all persons who may have committed any offense between August 4, 1964 and March 28, 1973 in violation of the Military Selective Service Act or any rule or regulation promulgated thereunder; and (2) all persons heretofore convicted, irrespective of the date of conviction, of any offense committed between August 4, 1964 and March 28, 1973 in violation of the Military Selective Service Act, or any rule or regulation promulgated thereunder, restoring to them full political, civil and other rights.
This pardon does not apply to the following who are specifically excluded therefrom:
(1) All persons convicted of or who may have committed any offense in violation of the Military Selective Service Act, or any rule or regulation promulgated thereunder, involving force or violence; and
(2) All persons convicted of or who may have committed any offense in violation of the Military Selective Service Act, or any rule or regulation promulgated thereunder, in connection with duties or responsibilities arising out of employment as agents, officers or employees of the Military Selective Service system.
IN WITNESS WHEREOF, I have hereunto set my hand this 21st day of January, in the year of our Lord nineteen hundred and seventy-seven, and of the Independence of the United States of America the two hundred and first.
The pardon undercut Ford's understanding that there was such a thing as legitimate dissent, but that there was such a thing as illegitimate action in legitimate dissent. By accepting that people who fled the results of their actions could simply evade them, and by excusing everyone from any kind of service, Carter made a mockery of the service to a degree, of those who complied with the law. In the end, people who simply didn't go, for whatever reason, were off the hook.
The impact of this, we'd note, has been somewhat permanent. The rift the draft caused has never fully healed and the concept that those who left were simply let off the hook continues to make those who reported for duty look, to a degree, like schmucks. The action basically elevated evaders to a certain species of hero, which if they fully evaded without the threat of judicial process, they really weren't, although that threat did exist at the time it must be noted. And the idea that Canada is a liberal refuge has persisted, which has impacted Canadian politics, in my view, in a way that hasn't done Canada any favors.
Carter was an awful President and his poor decisions commenced right from day one. He is a compassionate man, however. In this instance, that did not serve him well while in office.