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The Draft and Its Opposition

At the same time, the moral energy of draft resistance has begun to touch large religious organizations and individual clergymen in them. During the last year and a half, many denominations, including the United Church of Christ, Methodists, Episcopalians, the United Presbyterian Church USA, and the recently organized Catholic National Federation of Priests Councils have adopted resolutions either opposing the draft on principle or asking that men who refuse to fight in a single or “unjust” war be classified as conscientious objectors. Clergymen have also begun to participate in draft counseling. Surprisingly, rather few ministers in the past had either the information or the inclination to advise young men about the draft. If they did more than urge them not to embarrass their parents, they usually sent them to lay counselors provided by some of the “peace” churches, like the Quakers or Brethren, or to the National Service Board for Religious Objectors.

This reluctance to become involved with their young parishoners’ draft problems is tinged with irony, since “counseling” has traditionally meant helping a young man think through his religious beliefs. Such beliefs are required by Selective Service law as the basis of applications submitted by conscientious objectors. During the past year and a half, many young clergymen—often sympathetic to draft resistance—have themselves begun to practice counseling, frequently helping men who were not members of their church or even their denomination. Local and regional denominational conferences, outside the South, have held workshops to acquaint ministers with draft regulations and to train them as counselors. Within the past month, the National Council of Churches—the largest organization of Protestant and Orthodox congregations—has announced a series of counselor-training seminars this summer. The clergy’s growing involvement in counseling is all the more remarkable because its character has shifted sharply. No longer restricted to aiding men in filling out the Special Form for Conscientious Objectors, counselors are Inevitably called upon to help men who simply and honestly wish to avoid the army on whatever grounds.

The Draft? published for the American Friends Service Committee, the Quaker organization, suggests that such counseling is appropriate for serious clergymen. The book recognizes that the traditional, religiously based peace movement has failed:

…our own beloved country has grown more hostile, militant, and arrogant. We must confess to an agony of impending defeat. The present political status of the Selective Service System is to us a symbol of the defeat of love in American life, a defeat to which the Christian Church itself has made a substantial contribution through its acceptance of the legitimacy of militarism, through its acceptance of the right of the state to conscript, through its acceptance of the claims of national defense, which the Church is ready to admit takes precedence over all else.

This recognition of failure has led the writers, a committee of religious pacifists, to reassess painfully some of their own standards and the traditional moral attitudes that decry draft evasion:

Thus, even though many declare that draft evasion is immoral, is it really? What is it but man’s refusal—often by the only path open to him—to take part in the inhumanity of war…. A technologically advanced nation which wages massive war against distant peasants for obscure reasons and imprisons its own youth when they refuse to be conscripted is poorly equipped to judge the morality of others, and certainly not the morality of those who lie to evade the draft…. Would most Americans have felt it to be immoral for a German youth to have lied in order to avoid serving in the Nazi army during World War II?

This is strong language, and the position is, no doubt, advanced among Quakers, let alone among the religious community as a whole. All young men resisting the war on whatever grounds, the writers tell us, are truly “religious,” because they are affirming “life over death.” The writers, moreover, question the legitimacy of the traditional conscientious objector, at least as defined by current Selective Service law. “Religious pacifists” who “led the fight in the past for [CO] exemption,” have “become ‘programmed in’ with selective service. Their acceptance of exemption as a special privilege denied others, who may object to war on equally moral and responsible grounds, vitiates the challenge of the CO to the war system.” (Italics added.) It is true, as these Quakers argue, that many men are excluded from CO exemption because of their non-religious back-grounds, or their inarticulateness, their refusal to foreclose the future by swearing that they wouldn’t fight in any war, or the unpopularity of their beliefs—as in the case of Black Muslims like Mohammad Ali. Thus a number of resisters have rejected their CO classification, feeling that it, no less than student deferment, is a means by which Selective Service arranges for men to evade the fundamental choice between the military and non-cooperation.

AS PARTS of the religious community have given moral sanction to draft resistance, some lawyers have begun to aid both the committed resisters and those who wish simply to avoid military service. Draft law, until recently, was regarded as a minor—and aberrant—part of criminal defense. While tax consultants and lawyers have for years guided clients in “avoiding overpayment,” counselors who have advised draft registrants of their rights have been accused of aiding draft-dodgers. At the same time, Congress has tried to shield conscription from normal judicial review. Registrants are not allowed to have legal counsel at hearings before their draft boards, although such hearings are of the greatest importance: they often establish the record which decides a man’s classification, and provides the basis not only of his appeal but also, if he rejects such a classification and refuses induction, of his trial. The law also says that a man can challenge his classification in court only in defense against a criminal prosecution brought against him for refusing induction. Even then, a lawyer normally finds himself restricted to the question of whether the board had “some basis in fact” for making the particular classification. It is as if you had to risk five years in jail and a $10,000 fine in order to dispute an adverse tax ruling by an Internal Revenue Service clerk.

The justifications for a system so burdensome to individuals range from General Hershey’s remark that registrants are guaranteed their rights—to serve their country—to the mistaken assertion that draft boards are the draft boards are the fair and impartial neighbors of any registrant and that therefore informal knowledge about his case in an adequate substitute for due process. The Spock-Coffin case only dramatizes the high proportion of Selective Service prosecutions aimed not at men who evade the draft, but at those who “violate” its law for moral or political reasons. The fact is that the criminal penalties of the Selective Service Act do not mainly punish “draft dodging.” They are also being used to discourage opposition to the war itself. In this sense, the trial of Spock, Coffin, Raskin, Ferber, and Goodman is a political trial.

Just as the government has developed a legal and political strategy for combating the anti-war movement, so those opposed to the war and the draft evolved their own strategy for carrying the attack into the courts. This has involved major defensive actions as in the Spock case or in the prosecution of David Miller for burning his card. 4 But it has more recently meant taking legal action against local boards and the SSS as a whole. The National Student Association, Students for a Democratic Society, and many of the men reclassified for turning in their cards have sued to void General Hershey’s October 26 memorandum to local boards suggesting that they cancel deferments of men engaged in anti-war protests.

Other suits have attacked the process by which boards act as juries declaring men in violation of the law and subject to reclassification and call-up; racial and economic imbalance on local boards; and a variety of administrative malpractices by local boards, including failure to inform a registrant of his rights and denying him counsel at hearings.

THE EFFORTS to fight the draft in court have four objectives. A few major cases, such as the NSA/SDS suit and the Spock defense, are attempts to establish precedents which will hold for all men. Two or three lesser-known cases now in the courts may determine whether failure to carry a draft card—like a South African passbook—is, in fact, a violation of the law punishable by five years in jail and a $10,000 fine. Second, many of the smaller cases attack questionable board procedures, as, for example, the fact—unearthed by recent research—that some boards race through so many cases in a single meeting that the time spent on any one averages less than ten seconds, hardly sufficient for true consideration of a registrant’s file. To some extent, all of the affirmative suits are designed to make the work of Selective Service more difficult and the jobs of draft board members more unpleasant by adding countless legal complications to the task of inducting each man. These three tactics have been employed, with some success, by the civil rights movement to restrict and bring within the compass of law the power of Southern sheriffs, for example.

In addition, however, many of the draft cases will simply be attempts to delay the final decision of jail or induction until the war is over. A man who does not wish to go can, if he is able to afford it, bring actions against his local board to try to void 1-A classification or an induction order. If he is finally ordered to report, he can refuse, stand trial, and appeal any adverse decision. And if he finally loses all appeals—after a year or more—he can generally choose to accept induction rather than jail. Meanwhile, of course, the war may have ended. Few of these suits, if any, will be won, but they may help several thousand men delay induction or jail, and they may make the operation of the sss even more cumbersome and politically costly. At best, the cases will stake out guarantees of due process, equal protection, and perhaps in the Spock case, freedom of speech, heretofore often infringed by the draft.

That draft cases can now be mounted by competent lawyers in almost every federal judicial district suggests a major change. A year or so ago, it was almost impossible to get lawyers to challenge the regular practices of draft boards, let alone the fundamental justifications of Selective Service. The information and the will were not there—and the climate was thoroughly hostile to those who would use the law to “beat the draft.” Now, however, Ann Fagan Ginger’s useful book, The New Draft Law, outlines several grounds on which lawyers can attack local board decisions and mount habeas corpus proceedings to release inductees, as well as defend clients against prosecution. The Guild Practitioner pamphlet also suggests, on the basis of extensive new study of draft law and practice (some of it done by laymen in Los Angeles, Philadelphia, and other cities, but much, ironically, by the Marshall Commission staff) various ways in which informed counselors can legitimately help men increase their chances of avoiding the draft. For example, appeals boards in New York reverse local board classification only 7 percent of the time, whereas California appeals boards reverse 44 percent; it is obviously to a man’s advantage to appeal in California, which he can do if his board is there or if he happens to be living there.5 Research is also beginning to reveal patterns in the procedures of local boards that will provide lawyers with materials for challenging them on grounds of fairness and due process. For example, though Selective Service remains relatively free of ordinary bureaucratic scandals, boards often construe the “national interest”—the basis for deferments in class 2-A—in ways remarkably close to the needs of major economic interests in their areas.

  1. 4

    Miller was denied review by the Supreme Court, but the question of whether men must carry their draft cards or face reclassification or prosecution remains open. An important precedent may be set in the case of James J. Oestereich, a student at the Andover Newton Theological School. Last November he was declared delinquent and reclassified 1-A because he had returned his draft card. But when the case came to the Supreme Court, the US Solicitor-General, Erwin Griswold, suggested in the government’s brief that Oestereich could not have been properly reclassified by his local board since the 4-D classification for ministers and divinity students was conferred by Congress in the law and not through Selective Service regulations. The same argument is applicable to students, however, under the 1967 law: college deferments are provided to all undergraduates by statute and not at the discretion of the local board. If the Court accepts the Solicitor-General’s argument, it might well mean that students who have turned in their draft cards cannot be reclassified so long as they are in school. Moreover, the government does not appear anxious to prosecute for non-possession of a card; it has, in fact, dropped several such prosecutions recently, apparently preferring to indict men when they actually refuse induction.

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    Similarly, sentences for men found guilty of refusing induction have been substantially lower in certain parts of the country than in others. Since prosecutions take place in the district in which a man actually refuses induction, it is possible for him to leave the South or Seattle or Chicago, where sentences have been severe, and arrange to refuse induction elsewhere. Partly as a result, induction refusals in some places like Oakland have mounted beyond twenty a week.

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