Penney, Norman

English

Cornell Law Library

New Draft Law a Manual for Lawyers and Counselors

bepress Legal Repository

Scholarship @ Cornell Law

Cornell Law ReviewVolume 53Issue 6 July 1968 Article 10New Draft Law a Manual for Lawyers andCounselorsNorman PenneyFollow this and additional works at: http://scholarship.law.cornell.edu/clrPart of the Law CommonsThis Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted forinclusion in Cornell Law Review by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, pleasecontact jmp8@cornell.edu.Recommended CitationNorman Penney, New Draft Law a Manual for Lawyers and Counselors , 53 Cornell L. Rev. 1148 (1968)Available at: http://scholarship.law.cornell.edu/clr/vol53/iss6/10The New Draft Law: A Manual for .Lawyers .and Counselors. ANNF'AGAN. GINGER (ED.). Berkeley, California: NATIONAL LAWYER'SSGUILD., 1967. Pp. 135. $10.00.A method of hunting emplbyed in primitive cultures presents agrotesque analogy to the operation of the Selective Service Systemia.Snares and pitfalls are set and dug along jungle trails permittinghunters to obtain sufficient meat-and hides to satisfy their needs fromthe few unlucky animals who happen to get caught in the snares or fallin the 'pits. If the need is particulaTly great beaters may be employed toincrease the number of animals and to cause them to run over" the'trailsin a state of panic. The older, more experienced and Ti~y lanimals willbe the most likely to escape; conversely, the young will predominateamong those who blunder into the pits.Consider the Selective Service System. Local board quotas arebased, in part, on the number of local enlistments. In the past, enlisteeshave come mainly from recent high school graduates. Enlistments areinduced, in very large measure, by fear of being drafted. An enlistee istold that he has a greater opportunity to choose his occupation while inthe military. The present order-of-call rule makes it relatively less likelythat this year's high school graduates will be drafted; to the extent thatthey realize this, they will not be motivated to enlist, and older regis-trants will be drafted to fill the quotas. The point is that most of theseyoung people do not know the facts and will continue to enlist becausethey believe they will be drafted eventually anyway. Somewhat ironi-cally, counseling efforts, such as those at Cornell, are directed to themore sophisticated college student.For good or ill, the Vietnam War is increasingly unpopular. Manycollege students, already alienated from their elders on several grounds,view the war and the draft as especially noxious evils. It is an over-simplification to tell them that military service is a patriotic duty andthat the draft is designed to apportion that duty fairly. Last fall's execu-tive decision to take the oldest first from the 19 through 25 year-old agegroup raises particular havoc among college graduates and law students,since they are the most likely to be called this summer. Many of theseolder registrants are desperately seeking draft alternatives or at leastmethods to minimize the draft's impact.1What is lacking at all levels is information. There sometimes seemsto be a deliberate policy of withholding information or obscuring theoperations of the Selective Service System.2 This makes it extraordi-1 American Council on Education, Higher Education and National Affairs Newsletter,vol. 16, no. 38, Dec. 1, 1967, at 6-7.2 See Selective Service Regs. §§ 1606.55-1606.61, 32 Fed. Reg. 14328 (1967); Krauthamer,1148BOOK REVIEWSnarily difficult to counsel draft registrants on their status, their "rights"under the draft law, or- avenues available within the law to minimizethe draft's disruptive impact upon them.Although a number of helpful law review comments were pub-lished both before and after the 1967 draft law revision, the NationalLawyer's Guild book, The New Draft Law-a manual for lawyers andcounselors, edited by Ann Fagan Ginger, is the only book in print towhich a lawyer might turn in counseling or representing a SelectiveService registrant. A large portion of the book consists of extendedquotations from basic sources such as the Military Selective Service Actof 1967, the amended federal regulations, the Surgeon General's Listof Medical Fitness Standards, and the Handbook for ConscientiousObjectors. The Manual is, the product of several hands, principallyGuild lawyers experienced in Selective Service matters. It contains anumber of omissions, a few out-and-out misstatements of the law, andsome questionable and sometimes polemic suggestions on tactics whichless daring or less politically sympathetic attorneys may choose to ignore.Even with all of these reservations, the Guild Manual is an absolutelyessential tool for draft counseling.3The Manual begins with some general observations on the legalsanctions for counseling or abetting draft evasion. Although these areimportant considerations, there are also professional and ethical con-siderations.4 A draft counsel is in a situation like that of the tax coun-selor who must constantly, be aware of the shadowy line between taxavoidance and tax evasion. A major difference, however, is that tellingbusiness clients how to avoid taxes is fair game, but advising youngpeople on ways to avoid the draft-even where one's advice relates tothe processing of a legitimate claim for a physical deferment-runs therisk of censure from clients and even from some of our fellow practi-tioners. Yet the need for information, advice, and occasional legalassistance is enormous. It is no answer to say that a registrant can get allthe information and advice he needs from Selective Service personnel.We Have the Right to Know, 20 -Central Comm. for Conscientious Objectors News Notes,No. 2, March-April 1968.3 The author and a faculty colleague, Professor Bertram F. Willcox, were joined bymembers of the Cornell chapter of Law School Civil Rights Research Council (LSCRRC)in preparing memoranda on draft counseling. The manual was a major source of material,but in each case verification, expansion, and updating were accomplished through addi-tional statutory, periodical and case material.4 See ABA CANONS OF PROFESSIONAL ETHics 15 (How Far a Lawyer May Go in Support-ing a Client's Cause) & 16 (Restraining Clients from Improprieties). See also ABA OPINIONSON PROFESSIONAL ETmIcs 56-62 (1967); DRINKER, LEGAL ETHics 82, 137, 145, 152 (1953); Note,The States, the Federal Constitution, and the War Protesters, 53 CoRNELL L. REv. 528(1968).1149CORNELL LAW REVIEWIn many instances, Selective Service employees are incapable of answer-ing complicated questions; more dangerously, their advice is sometimesheavily biased by their prime objective-filling their quotas.The book offers a bibliography of readily available legal tools.However, one of the source materials, the Manual for Use of Govern-ment Appeal Agents, is not available from the New York State Directorof Selective Service. My efforts to obtain a copy to be used in. a counsel-ing service run by the Cornell Law School were rebuffed.5 As withseveral other items, it may be necessary to seek the material throughunofficial channels. The local board memoranda issued by GeneralHershey's office may be obtained from the Government Printing Office.6A booklet on the legal aspects of the Selective Service System, about tobe reissued by General Hershey's office in revised form, should be addedto the Guild book's bibliography. Hopefully, this too will be obtainablefrom government sources.A number of law review commentaries should be added to thebibliography.7 A lawyer wishing to keep informed of the rapidly chang-ing rules in this field should scan the Armed Services headnotes in thefederal advance sheet indices, subscribe to the Selective Service LawReporter8 and the CCCO newsletter, News Notes,9 and obtain supple-mentary materials from the AGLU and National Lawyers Guild.The Manual is divided into eight parts. Parts I through III are ofa general character including the "ground rules" and bibliographymentioned above; parts IV through VIII deal with different types ofcounseling or representation situations. Part IV, entitled "AssistingRegistrants During Administrative Process," comprises roughly halfthe book, and was of primary interest to the Cornell counseling group.105 See Selective Service Reg. § 1606.56(a), 32 Fed. Reg. 14328 (1967).6 This material may be obtained from: Superintendent of Documents, Gov't PrintingOffice, Washington, D.C. 20402 for $4.00.7 E.g., Comment, The Selective Service System; An Administrative Obstacle Course,54 CAuF. L. REv. 2123 (1966). Comment, Fairness and Due Process Under the SelectiveService System, 114 U. PA. L. Rsv. 1014 (1966); Comment, Selective Service, 76 YAr L.J.160 (1966); Note, judicial Review of Selective Service Action: A Need for Reform, 56 CALss.L. REv. 448 (1968); Note, New Draft Law: Its Failures and Future, 19 CASE W. REs. L. RMv.292 (1968); Changes in the Draft: The Military Selective Service Act of 1967, CoLum. J. OFL. & Soc. PRoBs., Dec. 15, 1967, at S-Three; J. Griffiths, The Draft Law, April 1968 (YaleDaily News and Yale College Council of Masters).8 The address is: SELEcrivE SERVICE LAW REPORTER, 1029 Vermont Ave., N.W., Suite508, Washington, D.C. 20005.9 The address is: CENTRAL CoaMrrrax FOR CoNscsNTious OBJECTORS, 2016 WalnutSt., Philadelphia, Pa. 19103 (west coast office: 514 Mission St., San Francisco, Cal., 94105).10 The Cornell counseling group chose as research topics: (1) physical deferments,(2) student hardship and occupational deferments, (3) selective service administrative pro-cedures and due process, (4) aliens and the draft, (5) travel abroad and expatriation, (6)1150 [Vol. 53:1148BOOK REVIEWSParts V, VI, VII and VIII deal -respectively with "Filing Suits TestingConstitutionality of Act," "Defending Criminal Charges of RefusingInduction," "Representing Members of Armed Forces in Courts Mar-tial," and seeking CO discharges. 1The Guild Manual devotes insufficient coverage to the problemsmost frequently raised by college students. For example, although theManual contains the Surgeon General's list of grounds for medicaldisqualification and some helpful suggestions for handling physicalclaims, its treatment of this important subject is cursory.12 An importantstratagem not mentioned is to take the initiative by seeking an inter-view.with the local board's medical advisor at the earliest possible op-portunity. Such an interview is normally available only after reclassifi-cation to 1-A, l-A-O, or 1-O, 13 but some boards are willing to arrangethem while registrants are still classified II-S. This. is an excellent ex-ample of how the local board's autonomy permits diametrically opposedpolicy considerations to produce widely varying results and occasionallyroughshod treatment of legitimate physical claims. Neither the Manualnor related materials shed much light on this area.In an effort to "clear the decks" for large scale induction of stu-dents this summer (and for planning purposes), many boards haveordered students to report for preinduction physicals during the schoolyear. A medical interview, in which the doctor and the registrant spenda half hour or more on the registrant's claimed incapacity, insures amore complete exploration of the claim than a mass-production pre-induction physical. The provision for an interview with the medicaladvisor recognizes this. The granting of such an interview, however, iswithin the board's discretion and any opportunity to obtain such aninterview is lost after a preinduction physical. Thus, the mass pre-induction physicals conducted this spring have foreclosed the possibilityof such interviews, allowing the registrant to press his'claim only duringthe preinduction physical.Several arguments militate against medical interviews: (1) inter-view appointments with unpaid, volunteer medical advisors are longdelayed; (2) registrants occasionally utilize the medical interview as aconscientious objection, and (7) litigation. The order of -the topics corresponds to thenumber of direct inquiries or referrals from other draft counseling agencies. They werediscussed in weekly, non-credit seminars. Information memoranda were produced underfaculty supervision for distribution to inquiring members of the Cornell community.11 Pp. 80-130. See also, Comment, God, the Army, and Judicial Review: The In-Service Conscientious Objector, 56 CALIF. L. REV. 379 (1968).12 Some amplification can be found in the articles by Franck and Blumenfeld in thespecial issue of Tnm Gurtz PRnArrrxONER [Summer 1967] on Selective Service.Is 32 C.F.R. § 1628.2 (1967).1968] 11511i52 CORNELL LAW REVIEW [Vol. 53:1148delaying tactic; and (3) the boards must fill quotas and sincerely believethat important physical disqualifications will appear in the preinduc-tion physical-as "assembly-line" as it may sometimes be. This methodof dealing with physical disqualifications is an obvious breeding groundfor trouble and disenchantment. Thus, we should not be surprised tofind additional friction and alienation resulting from the handling ofeven more subjectively determined claims-such as critical occupations(the few that remain), hardship, and, particularly, conscientious objec-tion.The Guild Manual contains a couple of errors or at least question-able statements of law. For example: (1) On page 27 the Manual statesthat a registrant is now entitled to a III-A (fatherhood) deferment if:(a) he has not requested and has not had a student deferment (I-S orII-S) since July 1, 1967. As a matter of fact, the proposition should bestated conversely (suggesting entitlement to a much larger group ofregistrants), i.e., a registrant is entitled to III-A unless he has bothrequested and been granted a student deferment since July 1, 1967.14(2) Also, page 75 states that an appeal to the President, staying induc-tion, may be taken notwithstanding a unanimous decision by the appealboard. This has no basis in the regulations other than the long-shotpossibility of persuading the Director of Selective Service (GeneralHershey) or the State Director of Selective Service to take that appeal onthe registrant's behalf.Finally, I question both the desirability of following several of thetactical suggestions made to registrants and the viability of several ofthe suggested appellate legal arguments. When counseling a youngperson-including a draft-resister-I view the attorney's function ashelping the client, not the "movement"; I take a dim view of attorneyswho utilize idealistic, impressionable youngsters as "cannon fodder" fortheir causes. Some passages of the manual, however, give the impressionthat the cause is more important than the dient.35Obviously a registrant should avoid unreasonably bugging Selec-tive Service personnel unless a suggested tactic is well calculated toattain his objective. For example, a suggested form letter seeking a14 Local Board Memorandum No. 84. See also Military Selective Service Act of 1967§ 6(h)(1), 81 Stat. 100, 1 U.S. CODE CONG. & AD. NEws 109 (1967) and 82 C.F.R. § 1622.30(a)(1967). A similar result ought to follow in the case of an unrequested II-S given to aregistrant after July, 1967, the registrant thereafter reaching his 26th birthday.15 An important distinction can be drawn between the normal draft case and thosesituations where one or more selected "test cases" involving viable constitutional argumentsare "taken" by such organizations as the NAACP or ACLU. See ACLU: Friend of the Courtor Counsel to the Accused, Civix LmEanT , No. 254, March-April 1968, at 6.personal appearance also requests permission to bring counsel (specifi-cally prohibited by 32 C.F.R. § 1624.1(b) (1967), as the Manual pointsout), present witnesses, and make a tape recording. Notwithstanding mybelief in broadening due process in the Selective Service System, theprobable refusal of such requests is not likely to result in a court's over-turning a continued 1-A classification, and the request itself may wellcause the board to exercise its enormous discretion adversely.This is particularly true if the Manual's suggestions for "conductof applicant at personal appearance" are also followed. The followingexcerpt speaks for itself:The registrant may wish to open the appearance by intro-ducing himself to each member of the board, and asking his name.He may also want to ask about the member's occupation, place ofresidence, and length of service on the board, since these are allmatters discussed in the 1967 Commission Report as being of someimportance. The board members may react to such questions in avariety of ways.The registrant may wish to repeat his requests for presenceof counsel, affirmative witnesses, negative witnesses, and a personto transcribe the proceedings, explaining why he feels these re-quests are essential to a meaningful and fair hearing.16Some of the suggested legal arguments--described as "legal prob-lems" frequently present in Selective Service cases'T-which I findlegally questionable are:1. The entire system is faulty because it puts the burden unfairlyon the registrant.1s2. Conscription without representation is tyranny.3. The entire system is invalid because fundamentals of dueprocess are denied and arbitrary and capricious board actionsare encouraged.4. Conscription violates the constitutional prohibition against"involuntary servitude."5. A person who conscientiously believes that the U.S. is fightingan illegal war, violative of the Nurnberg Judgment, cannot bepunished.Although the first two arguments are politically persuasive, theyare not legal grounds for overturning a conviction for refusing induc-tion.The absence of "due process" may indeed have persuasive legalforce when delinquency reclassifications are involved, as in Wolff, 1916 P. 72.17 P. 81.18 Id., citing 32 C.F.R. § 1622.1(c) (1967).19 Wolff v. Selective Serv. Local Ed. 16, 372 F.2d 817 (2d Cir. 1967).1968] BOOK R EVIEWS 1153CORNELL LAW REVIEWand even in some non-delinquency cases where the perimeters of dueprocess are gradually shifting. Consequently, it may be possible, wherean appropriate groundwork has been laid,20 to argue for reversal on thebasis of a denial of due process in one or more particulars.The involuntary servitude argument was recently considered in alower federal courtdecision,21 apparently because of an ABA JouviALarticle on the subject in August 1967.22 The court's elaborate but firmlynegative handling of the argument suggests a long, hard road ahead toachieve even the "honorable mention" status which the "illegal war"argument has attained.23My overall evaluation of the Manual is that it is a good, andpossibly essential, tool. The few errors noted suggest that importantquestions should be checked against the statute and regulations. Be-cause of several recent policy decisions by General Hershey's office, andbecause many new cases have appeared since the publication of thisManual, I hope that a supplement or revised edition will be forth-coming. The Guild has filled a desperate need for information and hasperformed an important public service.Norman Penney*20 Selected groundwork for selected cases as distinct from wholesale employment oftactics was criticized. Pp. 12-1.21 United States v. Richmond, 274 F. Supp. 43 (C.D. Calif. 1967). See Badger v.United States, 322 F.2d 902 (9th Cir.), cert. denied, 376 U.S. 914 (1963); United States v.Hoepker, 126 F. Supp. 118 (E.D. Ill.), aft'd, 223 F.2d 921 (7th Cir.), cert. denied, 350U.S. 841 (1955).22 Bernstein, Conscription and the Constitution: The Amazing Case of Kneedler v.Lane, 53 A.B.A.J. 708 (1967).23 See Mora v. McNamara, 389 U.S. 934 (1967) (Stewart & Douglas, JJ., dissenting);United States v. Mitchell, 386 U.S. 972 (1967) (Douglas, J., dissenting).* Professor of Law, Cornell University. A.B. 1950, Yale University; LL.B. 1953, CornellUniversity.1154

NELLCO Consortium Legal Scholarship Repository

https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=3680&amp;context=clr

New Draft Law a Manual for Lawyers and Counselors

Abstract

Similar works

Full text

Available Versions

Cornell Law Library

bepress Legal Repository

Scholarship @ Cornell Law

NELLCO Consortium Legal Scholarship Repository