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EXCLUSION OF PERSONS CONVICTED OF DESERTION WHILE THE UNITED STATES WAS AT WAR

WEDNESDAY, MAY 24, 1939

UNITED STATES SENATE, COMMITTEE ON MILITARY AFFAIRS, Washington, D. C.

The committee met, pursuant to call, at 10 a. m. in the Military Affairs Committee room, Senator Morris Sheppard (chairman) presiding.

Present: Senators Sheppard (chairman), Minton, Downey, Holman, Nye, Bridges, and Austin.

The CHAIRMAN. The committee will come to order. The bill before us is H. R. 6035, introduced by Congressman Harness, to provide for the exclusion from the United States of persons who have been convicted of desertion from the military or naval forces of the United States while the United States was at war.

(The bill is as follows:)

[H. R. 6035, 76th Cong., 1st sess.]

AN ACT To provide for the exclusion from the United States of persons who have been convicted of desertion from the military or naval forces of the United States while the United States was at war

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That any person heretofore convicted of desertion from the military or naval forces of the United States, while the United States was at war, and who has heretofore proceeded to any foreign country to escape punishment for such offense, shall be deemed to have voluntarily relinquished and forfeited all rights and privileges of American citizenship as well as the right to become an American citizen, and shall not be readmitted into the United States, either temporarily or permanently, for any purpose whatsoever.

Passed the House of Representatives May 15, 1939.
Attest:

SOUTH TRIMBLE, Clerk.

The CHAIRMAN. Mr. Bergdoll's attorney, Mr. Weinberger, will testify a few minutes, then we will hear from Congressman Harness, as he must get back to a committee meeting at 10:30, then Mr. Weinberger can resume the stand.

STATEMENT OF HARRY WEINBERGER, NEW YORK CITY

The CHAIRMAN. Give your full name. and address to the stenographer.

Mr. WEINBERGER. Harry Weinberger, 70 West Fortieth Street, New York City. I am a member of the New York bar, admitted to the United States Supreme Court, and attorney for Grover Cleveland

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Bergdoll. I am before this committee in opposition to the proposed Harness bill, as attorney for Grover Cleveland Bergdoll.

Before I state the legal reasons for believing that this bill is ex post facto and discriminatory and therefore unconstitutional, may I state generally why it should not be passed, even if it was within the power of Congress to pass such a bill.

This Harness bill is directed against only one man, 20 years after the offense was committed, who is returning home to go to prison because he desires that his children be brought up under a free government and attend our schools, and because now more than ever he realizes the great benefits of democracy and liberty and wants them for his children and his wife. He is also coming back because he wants to see his mother, who is almost 80 years of age.

For more than a year efforts have been made to secure permanent visas allowing Berta Bergdoll and her children to enter this country as permanent residents. Berta Bergdoll and the children are now here. Grover Cleveland Bergdoll did not want to be in jail here with his family possibly excluded or left in Germany because of a shortage of quota numbers.

For months Grover Cleveland Bergdoll has been trying to arrange his affairs so that he could leave Germany.

I am not here to justify or defend Bergdolls' past actions or the facts on which he was convicted. I am here to discuss only the present pending Harness bill.

I have read the report of the House Committee on Military Affairs recommending the passage of the bill. Its chief argument is that a citizen who refuses to bear arms in defense of this country should be deprived of all rights. The answer to that argument is simple.

Bergdoll offered his services to the United States as an aviator during the war if all criminal indictments against him were dropped, under which indictments he could not have received more than 1 year's jail sentence. This offer was refused, though he was a daredevil pioneer racing automobilist and aviator and had startled the country by his daring. When only 19 years of age he made the first nonstop flight from Philadelphia to Atlantic City. This offer was refused because of the animosity of one man against him. There were more than 337,649 actual military deserters from the Arny and guilty of the same crime for which Bergdoll was convicted. (See Report of Provost Marshal General to Secretary of War, 1919.) In addition there were hundreds of thousands who did not register and were classified and handled only as draft delinquents by the civil authorities and not the military. Why single out one man, after 20 years, for additional punishment?

Exile from one's country has always been considered the greatest punishment that could be inflicted on an individual. One of the finest stories ever written on that theme was Edward Everett Hale's A Man Without a Country.

Bergdoll has not only been an exile from his country, but he was a hunted fugitive, often assaulted and a victim of various attempted kidnapings. He was fearful wherever he went.

It has often been said: "Bergdoll was the Nation's number one slacker." That was merely because he was the most publicized of the more than one-half million draft evaders and deserters.

Bergdoll is coming back after 20 years to take five times more punishment than practically any other draft evader in the country, besides his years of exile, because he wants to come back to his native land-he wants his children to be educated and live in a free country. Because Bergdoll has been most publicized, must he be most hated? Must we in the United States give up our ideas of justice and fair play and the great Congress of the United States do as do dictators, who, with unlimited power, can deprive individuals of their lives, their property, or make them exiles or refugees?

With the pressing economic, social, and world problems confronting us today, it seems to me that it is beneath the dignity of Congress to pass legislation directed against one man for an offense committed 20 years ago.

May I make a few additional remarks before I go into the legal discussion of the Harness bill? I feel sure a plea for justice and fairness will not be made in vain before you.

The return of Bergdoll to the United States has been favored by the Secretary of War, Hon. John W. Weeks, in 1924, the Secretary of State, Hon. Charles E. Hughes, and the American Legion. Recently Attorney General Murphy was quoted as saying that he would put no obstacle in the way of Bergdoll's return. The executive committee of the American Legion has also gone on record against the Harness bill and in favor of his return and admission into this country.

Public opinion is clearly in favor of Bergdoll's return. I have photostats of two editorials from the Philadelphia Inquirer and the Evening Bulletin. Philadelphia is Bergdoll's home town, where, if anywhere, it might be expected that passion and hysteria might run high.

I have the two editorials; I will submit them to the committee. The CHAIRMAN. Hand them to the stenographer and they will be printed in the record.

(The editorials are as follows :)

[The Philadelphia Inquirer, Wednesday, May 17, 1939]

BERGDOLL SHOULD NOT BE BARRED

There is a suspicion of hysteria in the bill unanimously passed by the House and sent to the Senate which would permanently bar the return to this country of Grover Cleveland Bergdoll. This personalized legislation aimed particularly at one man, although it could include others.

The fact remains that Bergdoll is a citizen. By refusing to fight for this country in a grave emergency and by fleeing to his ancestral Germany, he certainly showed little concern for his rights or his responsibilites as a citizen. But for Congress to arrogate unto itself the right to bar an American citizen from American shores would set a precedent which, in other cercumstances, could wreak much harm.

It is one thing to disenfranchise a felon; it is another to set up an arbitrary rule to transform a fugitive or other American of doubtful worth into a man without a country. That smacks of dictatorship. Already Army authorities are concerned about a precedent being thus established which would make it difficult to bring back and punish a deserter once he has crossed an international frontier.

Bergdoll is reported willing to return and serve out his 5-year sentence. He should be permitted to come back and take his medicine. This would sufficiently discourage future evasions of the same sort, with no factor of persecution. The House erred in passing the bill, and the Senate should kill it.

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