By | July 17, 2019

BY EDWARD HASBROUCK

Most reporters covering a federal committee reconsidering the draft ignored this headline news, focusing instead on the issue of whether to expand the draft to include women

In what could, and perhaps should, be the beginning of the end for draft registration, a former director of the Selective Service System told a federal commission this week that the program he helped create and once ran is no longer working, that the database of registrants has become so hopelessly incomplete and inaccurate that it could not be used for a military draft that could be enforced or would stand up to due process and fairness challenges, and that it can and should be shut down entirely rather than expanded to include to women.

As Director of Selective Service from 1979-1981, Dr. Bernard Rostker brought the Selective Service System out of “deep standby” and managed the startup of the currently ongoing registration scheme and the initial mass registration of five million young men for a possible military draft.

On Wednesday, 24 April 2019, Dr. Rostker was seated in front of the National Commission on Military, National, and Public Service (NCMNPS) at the opposite end of the witness table from the current director of Selective Service, Donald M. Benton, an early Trump supporter and state campaign chair with no relevant experience or apparent qualifications for the Selective Service job and who was appointed to the position as a political sinecure.

Rostker is no friend of draft resisters, according to Alex Reyes, one of my comrades in resistance and

Rostker’s nemesis as Washington, DC, representative and spokesperson for the National Resistance Committee and probably among those who were investigated and considered for prosecution in the early 1980s for conspiracy and advocacy of draft resistance. Rostker started his career as an economist, and his message to the NCMNPS was neither partisan nor anti-draft, but pragmatic and businesslike: 

“As I have argued in my recent paper the current system of registration does not provide a comprehensive nor an accurate data base upon which to implement conscription. It systematically lacks large segments of the eligible male population and for those that are included, the currency of information contained is questionable….

The most recent district court ruling finding the unconstitutionality of a male only draft also is not an endorsement for registering or conscripting women…. I cannot think of a more divisive issue than the conscription of women, an issue that clearly does not need to be addressed at this time given that a return to a draft is so unlikely. This is a “fight” we really don’t need to have. It is a “fight” that can and should be put off…. If this means that at this time the MSSA [Military Selective Service Act] needs to be repealed, so be it….

In fact, a pre-mobilization draft only existed after World War II and impacted the conflicts in Korea and Vietnam. In Vietnam it proved so divisive that it was replaced by an all-volunteer force we have today. A more correct reading of history shows that we have engaged in active military conflict numerous times since 1973 without the  “help” of the Selective Service System, including the longest military conflict in our history. There are many reasons why we have been able to do so which negates the need for conscription. Most significant is the change in military technology which makes the need for a mass of untrained manpower, the very thing the draft provides, unnecessary and actually a burden. Today the Army does not need and cannot absorb the mass of untrained and unskilled men, and potentially women, the draft would provide. If history tells us anything, it is that when we have needed to build a mass Army, as we did for World War I and World War II, there was sufficient time to develop a new Selective Service System from scratch…. So, my bottom line is there is no need to continue to register people for a draft that will not come; no need to fight the battle over registering women, and no military need to retain the MSSA.”

Rostker has made similar statements before, including in an interview in 2017 that I quoted in my own written statement to the NCMNPS, and in a 2018 paper, but not with quite such a blunt recommendation for repeal of the law authorizing a president to order young men to register for a draft. While I disagree fundamentally with Rostker about whether a draft is a good idea in the first place, he made many of the same main points in his testimony on that Wednesday afternoon (video archive of panel with Rostker on CSPAN) as I did on Thursday morning as part of the next panel of expert witnesses to be called before the NCMNPS (video archive of panel with me and Diane Randall on CSPAN).

It is not every day that the former head of a federal agency tells his successor, live on C-SPAN, that the agency they have both directed is no longer able to accomplish its purpose and should be shut down. But few journalists sat through all of the two days of hearings on Selective Service before the NCMNPS this week, and most of those who dropped in or tuned to C-SPAN for portions of the hearings were focused on whether draft registration should be extended to women rather than whether it should continue at all. So far as I can tell, Rostker’s testimony – clearly the headline news not just of this week’s hearings but of all of the two years of activities of the NCMNPS to date – has been reported only in Paul Jacob’s This Is Common Sense column. 

It was not made public until after the hearings, but the NCMNPS also received a letter earlier in April 2019 from Rep. Peter DeFazio (D-OR), who was one of the sponsors of a bill introduced in 2016 to repeal authority for draft registration. “I strongly urge members of this Commission to recommend disbanding the SSS altogether,” Rep. DeFazio wrote. The only other official submission to the NCMNPS from a member of Congress disclosed to date is from Rep. Gwen Moore (D-WI), the sponsor of a bill introduced in 2017 to require the Selective Service System to allow registrants to indicate, at the time of registration, their intent to seek classification as conscientious objectors if and when they are ordered to report for induction into the military.

The Thursday morning panel, which included Diane Randall of the Friends Committee on National Legislation (FCNL) as well as myself, represents the first time in almost 40 years that draft resisters or conscientious objectors have been invited to tell Congress or a federal commission publicly what we think should be done about draft registration. More testimony in support of ending draft registration, rather than trying to expand it to women, was offered during the public comment periods following questioning of each of the panels of invited witnesses during the two days of hearings this week.

Additional witnesses who testified in favor of ending draft registration included Paul Jacob (like me, one of the 20 nonregistrants who were prosecuted in the 1980s before the Justice Department realized that show trials of activists were encouraging more resistance); Executive Director Maria Santelli, Counseling Director Bill Galvin, and staff attorney Iman Hassan of the Center on Conscience and War; Ari Standish and Callum Standish from Pacific Yearly Meeting of Friends; Kate Connell from Truth in Recruitment and the Santa Barbara Meeting of Friends; Chris KearnsMcCoy of FCNL; Kindra Bradley, executive director of Quaker House; Jim Fussell; and others including other men who have not registered when they were supposed to do so. With the inclusion of these witnesses, the

NCMNPS was confronted face-to-face, for the first time, by young people whom the DOJ would have to prosecute if the federal government tried to enforce the current draft registration requirement or expand it to include women. 

The report of the NCMNPS, including a yes-or-no recommendation on whether draft registration should be continued (and if so, a separate yes-or-no recommendation on whether it should be extended to young women as well as young men) is due in March 2020. Congress will probably take up the issue in 2021, after the 2020 elections and after the government has exhausted its appeals of the court ruling that the current registration requirement for men is unconstitutional.

Dr. Rostker’s recommendations make it more likely that the commission, forced to choose, will recommend ending draft registration, and that Congress might act on that recommendation. But the manner in which registration is ended, and the extent to which it will continue to have collateral consequences for nonregistrants, will depend on our anti-draft activism and lobbying. It remains possible that Congress will choose to do nothing and allow draft registration to be ended by court order, as the least politically risky path among an array of unpalatable options with respect to Selective Service. As I noted in my testimony, “While I and other opponents of registration and the draft would welcome this outcome, it would… lead to expensive, confusing, and prolonged federal and state litigation and uncertainty as to which administrative penalties would still apply to those who had previously not registered…. Congress [should] enact legislation for an orderly shutdown of the Selective Service System, expungement of registration records, repeal of Federal criminal and administrative sanctions for past nonregistration, and preemption of any state sanctions for nonregistration.” Preemption of state sanctions against nonregistrants is the key element missing from all of the recent proposals for legislation to end draft registration, and is unlikely to be included in any new bill unless it becomes a focus of concerted lobbying, starting with the submission to the NCMNPS and Congress of model legislation including a provision preempting state sanctions for nonregistration. The last chance for in-person submissions and verbal testimony before the NCMNPS will take place at the Commission’s final public hearing at the FDR Presidential Library in Hyde Park, NY, on 20 June 2019. Written submissions by e-mail to “info@inspire2serve.gov,” mentioning “Docket No. 05-2018-01” in the subject line of the e-mail message, will be accepted through 31 December 2019. 

Edward Hasbrouck is a legal worker in San Francisco with the Identity Project (PapersPlease.org). He has been a member of the NLG and the MLTF since the early 1980s, when he was an organizer with the National Resistance Committee and co-editor of Resistance News. He publishes a Web site about the draft, draft registration, draft resistance, and the Selective Service System at Resisters.info.