IN DEFENSE OF AMNESTY

...Amnesty would restore their freedom to live in America by setting aside the punishment for their political offenses...

...But one has to ignore a great deal to believe it...

...In an essay in a collection on amnesty, When Can I Come Home?, and in his more recent Political Violence and Civil Disobedience, Ernest van den Haag presents what amounts to a legalistic manifesto...

...94 NOTEBOOK...

...It can neither •be proven nor disproven...

...Van den Haag's account of uncivil disobedience apparently forces the democrat to choose between either punishing the exiles for their convictions or undermining the effectiveness and authority of democratic government by an anarchic precedent permitting defiance of the state...

...Much can be said for this mansion, but not nearly so much as van den Haag imagines...

...Van den Haag also resorts to legalistic hyperbole...

...The ideal of impartiality built into the rule of law does not mean that we are prohibited from ever calculating the unusual case...

...It can be said about the effects of the Vietnam war on American governments what was said about the disastrous consequences of the Peloponnesian war for ancient Athens: Lacking a sense of honor, people no longer behaved honorably but masked their behavior with fine words...

...But in calculating the consequences of amnesty, as of any policy, remote possibilities must give way to immediate and clear political benefits...

...But each man must feel that he has some stake in the community and that the political system is open and fair...

...The examples of particular injustice or oppression of here and there an unfortunate man moves them not...

...The fate of the 75,000 to 125,000 men in exile will be determined, in part, by the outcome of the public debate over amnesty...

...The exiles' disobedience, although nonviolent, occasions greater alarm because the potential for political instability is greater where men defy the state's right to judge them...

...If van den Haag could show that the state is under some form of obligation always to punish a violation of the law, his argument would have some merit...

...The law would no longer be a law, it would become an option, a suggestion, that you can either accept or not...

...Amnesty is a political recommendation that urges the setting aside of prosecution in specific circumstances...

...His position is only a more rigorous reflection of the attitude that the exiles, whatever the merits of their political and moral arguments, must be penalized for violating the law...

...It is an assertion that the law supporting the government's politics must automatically take precedence over the politics of the government's opponents...

...Consistent Administration "understatements" about the nature and costs of American involvement in Vietnam, the debasement of political language, the antiseptic account of military tactics, lies about the nature and scope of the war, especially the bombing: by such assaults on the political community the American government has endangered its legitimacy...

...Who can help it if they, who might avoid it, bring themselves into this suspicion...

...The example of Socrates who refused to obey the laws of his society but acknowledged the state's authority to punish him is often cited, by liberals as well as conservatives, as an instance of disobedience combined with loyalty to the state...

...While particular laws are often casualties in a season of confrontation politics, the final confrontation is with the character of the political community...

...The old admiration for intellectual prowess degenerated into a respect for a certain kind of craftiness, the ability to advance a cause by whatever means came to mind...

...It is the nature of laws that disobedience must be excluded...

...For till the mischiefs be grown general, and the ill designs of the rulers become visible, or their attempts sensible to the greater part, the people, who are more disposed to suffer than right themselves by resistance, are not apt to stir...

...Law, van den Haag clearly believes, is more important than politics—a position that seems to blind him to the politics behind the law...

...The government must, then, pick up the responsibility for reconciling those divisions, if it is to remove itself from under "this suspicion...

...All such acts of recognition involve treating some different from others...

...Criticizing amnesty, he writes that "In a democracy...

...To say that the exiles or any other political offender has no legal or moral right to disobey the law does not yet answer the political question posed by amnesty...

...All illegal acts, it is contended, must be punished...

...If justice is impartial, it seemingly demands that those who avoid duties they shared with others be prosecuted and punished...

...The severe penalties imposed for violations of the Selective Service Act during World War II had little, if any, effect in persuading men to comply with the law...

...And Locke reminds us that a major responsibility of any democratic government is to evaluate the likely effects of its policies upon the social agreement necessary for the rule of law to work...

...Van den Haag is in too great a rush to equate disobedience to a particular law or defiance of a specific policy with dictatorial rule of the few over the many...

...This good faith can be seen in the willingness of the losers in an electoral contest to abide by the choice of the winners...

...Presented as a demand for the impartial enforcement of the law, the argument obscures the political bias of amnesty's opponents...

...But when consent is withdrawn by large numbers, attention must shift from the legal to the political arena...

...The complaint, for example, that draft evaders and deserters increased other men's odds for service could also be made against every religious conscientious objector...

...Good faith depends strongly upon government power conforming to the expectations that we have about how power will be exercised, expectations influenced by the form of the constitution and the ethos of democracy...

...Supporters of amnesty readily admit that amnesty means that the exiles would be treated differently from other men, more exactly, other lawbreakers...

...Those who employ the language of a contract to argue that the individual makes an agreement with the government, to obey the law in return for certain services, are inclined to forget that the success of the contract depends upon a prior consensus—namely, a widespread desire and support for the continuation of the political community...

...The arguments for amnesty are arguments for differential treatment...

...But in what sense does this conclusion follow...

...The very merit of amnesty is that it is an exception to the general rule that lawbreaking must be punished...

...Critical to such conservative attempts to discredit the movement for amnesty is the argument that lawbreaking must always be punished...

...Writing about civil disobedience, she argues that: The greatest fallacy in the present debate seems to me that assumption that we are dealing with individuals, who pit themselves subjectively and conscientiously against the laws and customs of the community...

...But are we faced with such a Hobbesian dilemma...

...Legalism, in effect, builds a house with only one room: law enforcement...

...With this criticism, the brief against amnesty moves from the past to the future, retribution to deterrence...

...And conservative thinkers such as Ernest van den Haag charge that amnesty would undermine the law-making and lawenforcement powers of the state...

...It has been the misfortune of recent debates that they have been dominated largely by jurists—lawyers, judges, and other men of law—for they must find it difficult to recognize the civil disobedient as a member of a group rather than to see him as an individual lawbreaker, and hence a potential defendant in court...

...Such an argument faces the pitfall of pernicious abstractions that the historian Henry Steele Commager warned us might arise in the debates over amnesty...

...He writes, I am simply saying that the government that makes a law cannot say that this law can be defied with impunity by anyone who thinks it wrong...

...Although it cannot be proven that adherence to this requirement would have prevented the disaster in Vietnam, the myriad attempts by various Administrations to manipulate public opinion suggest that they would have felt constrained to act differently in a more open political system...

...Disillusionment and mistrust of American government steadily increased during the Vietnam war years...

...If we are, indeed, faced with such an either/or choice, amnesty will have to give way to the greater good of political order...

...But when men are caught up in the conflict between what the state demands and what their convictions permit, an effort should be made to reach a reconciliation with them so that the political good is, as far as possible, a common good...

...I have in mind Hannah Arendt's argument in her recent book Crises of the Republic that most discussions of political offenses are not political enough...

...To argue that lawbreakers must always be punished is the legalist's way of "protecting" the law from the controversies occuring in the political community...

...Those who fear that amnesty will undermine the deterrent effect of punishment fail to understand the conviction of men who say "no" to their government...

...Courts that were strict in imposing penalties had as many cases before them as lenient courts...

...When its policies are such as to undermine the public desire to be rule-following, it must accept much of the blame for the divisions within the country...

...All of this is perfectly correct...

...Through their actions, it is argued, the exiles gained advantages or avoided disadvantages that others did not enjoy or avoid...

...The crisis of authority in America cannot be understood apart from the origin and prosecution of the Vietnam war...

...There must be some consensual base upon which the political structure rests and from which it draws support...

...Baldly stated, partiality is at times preferable to impartiality...

...Abstractly, the answer is yes...

...It is a possibility not simply to be dismissed, but amnesty's critics wrongly imagine that the abstract warning settles the political problem of whether amnesty, in light of political realities, would do more good than harm...

...But it is the very abstractness of the answer that distorts the discussion of amnesty...

...The integrity of the law, in this view, demands that lawbreakers always be punished...

...what I am doing by not obeying the law is defying the majority in favor of a minority view...

...Nor does punishment provide much hope for discouraging war resisters...

...There is no reason why America cannot continue without the exiles...

...From the observation that a law must exclude disobedience, it does not follow that a government is prohibited in a given instance from making the political judgment not to invoke the penalties of the law...

...Namely, support for the general principle of impartiality does not justify the conclusion that partiality or differential treatment must always do more harm than good...

...the social fabric, al* Proceduralism, the conformity of decision-making to customary political norms and constitutional patterns, will also affect the quality of the decisions reached...

...While the violation of law makes it permissible for the state to punish someone, the state is not compelled to exercise this right...

...They can be forgotten...

...Loyalty and the general will for the rule of law are linked to the belief that decisions are being made in conformity with the social compact...

...though permanently disfigured by their absence, can mend without them...

...NOTEBOOK 91 The conservative's position makes sense once we see that he is opposed to amnesty because it is a political, not a legal, judgment...

...A conservative president insists, however, that draft resisters and deserters pay the price for their lawlessness...

...Politics is more important than law for the success of democracy...

...When consent is withdrawn by an isolated individual here and there, it is likely to remain a legal rather than a political and public problem...

...If punishment of lawbreakers is one principle for guiding our behavior, it obviously is not the only one...

...The old love of serious argument was debased into ingenious dispute, by which the most despicable actions were made to appear excellent...

...No real evidence has been offered to show that we are, in fact, confronted with advancing one political value by seriously 92 NOTEBOOK damaging another...

...To which I answer, quite the contrary...

...What we can believe is that if the United States decides to pursue another war like Vietnam, resistance is likely regardless of whether amnesty is granted or withheld today...

...By voluntarily submitting to arrest, the civil disobedient does not call into question the state's authority over him...

...Cities, for example, have found no difficulty in setting aside the letter of the law that prohibits strikes by public employees, so as to arrive at an agreement whereby the trash can be collected again, fires fought, or the streets patrolled...

...Rule of law can too easily become a slogan for collapsing political disputes into judicial topics...

...Previous amnesties did not hamper later war efforts in America or in other countries that have an even more generous history of the granting of amnesty...

...Van den Haag's first legalism appears in his polemical essay attacking the idea of amnesty...

...I will argue that the assumptions behind this position are largely groundless, the warnings exaggerated, and the political posture too legalistic and, consequently, insensitive to values other than punishment...

...There is less long-range political risk in amnesty than in the attitude that state authority is a value that must supercede all others...

...the losers accept the choice of the majority not because the majority's choice is their choice but because they value the general good of law-abidingness or, more exactly, the community sustained by law-abidingness...

...In attempting to make the law immune to the uncertainties of politics, van den Haag translates the political dispute over opposition to the Vietnam war into a judicial question of legal right and wrong...

...THE MOST persuasive appeal in the criticisms of amnesty is to the ideal of impartiality, the hallmark of the rule of law...

...When punishment will serve no valuable purpose, the good of democracy is enhanced by refusing to coerce the other man's conscience...

...At issue now are the terms upon which government authority will be reconstituted...

...It is not a question of having your view always prevail, but the awareness that it matters that you have a view...

...While I have no quarrel with many of the values associated with the phrase "rule of law," I think the phrase can lead to a major pitfall...

...What van den Haag's analytical account cannot show is that amnesty would become a precedent encouraging general disobedience...

...Van den Haag, accepting the terms of the discussion, persuasively argues that the individual has no such "right" against the government but only a moral "claim...

...What opponents of amnesty are asking is that we treat the abstract possibility that amnesty might encourage future resistance to war as though it were already an established fact and then to make this "fact" a ground for withholding amnesty...

...Meriting more serious consideration is van den Haag's argument that the willingness to accept punishment for disobeying the law is necessary for a political offender to demonstrate his serious moral intent and his fidelity to the larger social order...

...To fully grasp the appropriateness of amnesty as a response to the rupture in the American social contract, it is finally necessary to go beyond the terms traditionally used by the supporters or opponents of political resistance...

...A democracy can never permanently solve the tension between a man's general obligation to be law-abiding and his competing obligations and convictions...

...Disobedience, he argues, is an attack upon democracy...

...The fact is that we are dealing with organized minorities who stand against assumed and nonvocal, though hardly "silent" majorities...

...A society of consent does not simply mean majority rule or electoral politics...

...Van den Haag warns that democracy itself is endangered by the amnesty campaign...

...One writer, for instance, who favors setting aside the prosecution of political resistance, argues that the government acts wrongly when it enforces one of its laws against a claim that it had no moral right to adopt the law...

...Conformity to these expectations becomes more, not less, critical when the government changes the country from a state of peace to a state of war...

...Political accommodations embrace conflicting values and politics involves some willingness to live with the tension between different goods...

...The proposal to grant amnesty argues for a similar recognition of the exiles' refusal to serve in this war...

...But if they universally have a persuasion grounded upon manifest evidence that designs are carrying on against their liberties, and the general course and tendency of things cannot but give them strong suspicions of the evil intention of their governors, who is to be blamed for it...

...Arendt's comments remind us that the stability of democratic government requires something more than the state's ability to punish...

...LET US TURN to a set of more strictly philosophical commentaries on the rule of law and disobedience which argue that in the interest of law, disobedience must always be punished...

...Considerations of kindness, doubts 90 about the morality of the war, support for the conscientiously disobedient as well as obedient citizen, all sorts of judgments can support the decision not to impose punishment...

...If the conservative notices the difference between common crimes and political offenses, he is likely to dismiss it as irrelevant...

...The point is that America will be one type of society if it grants amnesty and another type if it does not...

...John Locke argued a more balanced view when he responded to charges that the teaching that government derives its powers from the consent of the governed would encourage disobedience and rebellion: To this, perhaps, it will be said, that the people being ignorant and always discontented, to lay the foundations of government in the unsteady opinion and uncertain humour of the people is to expose it to certain ruin...

...And I am not in favor of a minority dictatorship...

...Amnesty both acknowledges and sets aside the general rule in a given instance for the sake of other benefits...

...Administration officials testifying before a Senate hearing on amnesty argued that amnesty now would increase the likelihood of resistance to future military involvements...

...The political significance of the debate over the constitutionality of the war is that the requirement that Congress declare war increases the probability that the concerns and interests of the public, especially opponents of a policy, will be one of the pressures that enters into the calculations of the government...

...Lacking such a proof, which I do not think can be made, his complaint is simply beside the point...

...it is just that it has nothing to do with the amnesty issue...

...From this reasonable position, he then concludes that the law must always be enforced...

...In recognizing the refusal of religious objectors to serve, the government and public are treating them differently...

...The debate over amnesty will be distorted if political judgments are replaced by abstract ethical or legal rules...

...In any case, amnesty does not set aside the law, it sets aside prosecution under the law...

...The war is over, conscription has been abolished, illegal political resistance has stopped: in this climate, amnesty would free us, with very little risk of political chaos, of having to imprison the exiles for refusing to take part in a war that they considered immoral...

...Extraordinary politics that involve challenges to the legitimacy of the government's authority occur when men are left with the feeling that the government's decisions are in no way their decisions, a feeling reNOTEBOOK 93 flected in the belief that the Vietnam war was "Johnson's war" or "Nixon's war...

...And at a time when the majority of the American public has expressed doubts about the Vietnam policy, it is no longer fitting that the exiles be punished simply for their political position...

...The core of the social compact is the feeling of reciprocity, the belief that, as regards our rights and duties, good faith is being kept with us...

...While the exiles are not civil disobedients in the traditional sense—they have not acted publicly (although their actions could not avoid detection), nor have they accepted the legal consequences of their refusal to obey the law —they have by their actions affirmmeedd that other values are more important to them than lawabidingness...

...The argument exaggerates the anarchic potential of nonviolent political resistance and overlooks the responsibilities of the government...