Standing in the Draft

If a young man's opposition to induction and a trip to Viet Nam is strong enough, he should have little trouble getting his day in court. He need only refuse to be drafted, like Muhammad Ali, or burn his draft card, like David O'Brien, whose conviction has just been upheld by the Supreme Court. These days, such actions are almost sure to bring prosecution and a chance to argue the case before a judge and jury. But what of the average draftee who feels he should be either reclassified or excused from service, yet shies away from deliberate violation of the law?

He stands before his local draft board very much like a man on trial. But unlike an ordinary defendant, he is, in effect, guilty until proved innocent--that is, he is 1A until he can demonstrate that he deserves to be deferred. Moreover, draft boards, made up of well-intentioned but often legally untrained pillars of the community, are not courts of law. They are federal administrative agencies charged with producing a quota of inductees each month, and they have wide latitude in deciding when, why and who shall go.

Hard Time. Some matters are rigidly prescribed, such as a requirement that a man be given at least 30 days to appeal a 1A classification, but many others have purposely been left to the virtually unfettered discretion of local boards. Recent changes in the draft have removed most graduate students and many so-called "critical-skills" workers from their semi-automatic deferred status. But even before the change, local boards were not absolutely required to grant deferments, and now a deferment can still be issued if a board is persuaded that there is a "community need."

A man claiming conscientious-objector status usually has a particularly hard time. Relatively few boards seem to know or care that the Supreme Court significantly broadened the qualifications three years ago. Now a man need only possess beliefs that prompt his objection to all wars and that "occupy the same place in his life as the belief in a traditional deity." But even if he knows how to raise that argument legally, home-town board members may well pay no attention because they think that such a test is much too easy.

Wedge in the Door. Along with draft-board ignorance of Selective Service regulations, the draftee often suffers from the fact that he has little recourse to the courts. He can get his classification reviewed by a higher draft board; but in order to get out of the draft-board system and into the federal courts, he is likely to find he must wait until he is actually called into military service. Once sworn in, he can file a habeas corpus action to get out; if he loses, he is already in uniform and stuck. If, like Muhammad Ali, he refuses to be inducted in the first place, he risks up to five years and a $10,000 fine after trial as a draft dodger.* In San Francisco two weeks ago, a federal district court did rule that a potential draftee need not wait until induction before he challenges his classification in the court, but that ruling is still to be tested in higher courts.

Another Selective Service rule bars lawyers from accompanying a draftee before the local board. San Francisco Attorney Malcolm Burnstein, who often represents registrants, objects: "When you can take away a man's liberty for two years, you've got to provide him with counsel if he wants it." Harvard Law Professor Alan Dershowitz agrees. "It's the wedge in the door, the wedge that permits his other legal rights to be enforced," he says.

Lieut. General Lewis Hershey, Selective Service director, strongly opposes lawyers. Testifying recently before a Senate committee, Hershey insisted that diligent attorneys could bog down the swift provision of men for the armed services. Repeal of the ban on lawyers was roundly defeated in the Senate last month.

Hershey's distaste for legal representation extends even to the Government Appeal Agent. One such official lawyer is assigned to each draft board to advise both the board and draftees who wish to appeal their classification. But the agent's function was badly watered down when Hershey ordered him to report any violation of law that a registrant might reveal during a consultation. And civil libertarians' tempers have still not cooled over Hershey's written suggestion to all boards that those who impede the draft be classified as delinquents, thereby hastening their induction. This use of draft boards to impose punishment has already prompted at least 49 cases that are climbing through the court system.

Many of Hershey's detractors favor stronger central administration of draft boards to eliminate wide local variances. "There are enormous inequities now present in the system," says Yale Law School Dean Louis Pollak. "The obvious consequence is the undermining of the whole system by the serious disparities." Los Angeles Lawyer William Smith, another draft specialist, admits, "Frankly, I kind of like the law the way it is. Right now, I could drive a truck through the loopholes that exist." One tactic he uses is to get a man with a deferment claim who is about to register to move into a district where the draft board is sympathetic to that particular claim. He also counsels clients on tactics likely to provoke technical errors that could later provide a basis for reversal of the board's actions. "But," adds Smith, "in all fairness to the registrants, the law should be changed."

Locating the Middle. The fact that a change in the law now appears to be the most promising means of reform is not without irony. For neither side in the draft war has shown much fondness for strict adherence to legality. Hershey prefers unreviewable power for his administrative system, and the most ardent resisters deride statutes as immaterial to the morality of the question--unless the courts happen to interpret the statutes in their favor. But for the average draftee caught in the middle, it would be comforting to know where that middle is. The problem facing both legislators and the courts is to set a line balancing the legitimate rights of the individual against the unquestionably important needs of the nation.

* Alternatively, however, he can agree to serve after his conviction; in such a case, the judge will often suspend sentence.

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