I think it exists today, and I think it is going to exist on into the future, and I think it is going to take the best of all of us in reaching the goal of reconciliation for young people.

But I think although it only is directed toward the young, it is basic to the direction and sense of purpose of the Nation.

I want to express my appreciation for your appearance here, and for the comments that you have made, and I look forward to your responses to the questions to be submitted.

The subcommittee stands in recess until 2:15.

(Whereupon, at 1:20 p.m., the hearing was recessed, to reconvene at 2:15 this same day.)

AFTERNOON SESSION

Senator KENNEDY. The subcommittee will come to order. We will start off in the afternoon with our first panel: Mr. Karpatkin, Mr. Schulz, Mr. Shattuck, and Mr. Tuchinsky.

STATEMENT OF MARVIN M. KARPATKIN, GENERAL COUNSEL, AMERICAN CIVIL LIBERTIES UNION

Mr. KARPATKIN. Mr. Chairman, on the behalf of the American Civil Liberties Union, I am delighted to accept this invitation to appear here. I remember with great pleasure the appearance 2 years ago here when a group of us from the American Civil Liberties Union and the New York Civil Liberties Union appeared before the subcommittee and shared with the subcommittee some of the experiences we had had in the administration of selective service regulations.

I think it is first necessary to say for the record that in answer to your invitation, I have been excused from a trial today of an ACLUsupported Selective Service case currently pending in the U.S. District Court for the Southern District of New York.

The ACLU is now in its 52d year. Our organization has always been deeply concerned with the serious threats to constitutional rights and civil liberties which are inherent in any system of compulsory military training. It has been our abiding view that such total infringement of individual liberties-freedom to line one's own life, to work, to study, to marry, to have a family, to travel, to be subject to civil rather than military law-can only be justified in time of actual declaration of war or genuinely necessary national emergency mobilization. Nothing less, we have argued, can legitimatize the act of any democratic government to compel its citizens to take up arms, risk death, and be commanded to kill other human beings, as a matter of national policy. We have, therefore, urged the abolition of the current draft, and argued its unconstitutionality in the courts, and we will continue to do so.

At the same time, however, we have been equally vitally concerned with the fair administration of the selective service system. I believe we gave before the subcommittee 2 years ago some of our rather dramatic experiences in terms of acquittal rates comparing the situation as it existed in terms of the persons we represented and the situation

that had existed 5 years earlier. Also on terms of national legal development, ACLU has been involved in every significant Selective Service case decided by the Supreme Court subsequent to the Seeger decision in 1965. Throughout all of this we pointed out not only the same observations which Senator Hart and others have made about the constitutional necessity as well as the wisdom of expanding procedural rights of conscientious objectors, we pointed specifically to the lack of right of counsel, to the lack of guaranteed right of witnesses, to the absence of an impartial tribunal, to the absence of a right to reasons for an adverse decision, to the lack of requirements for a quorum, to the absence of a record, and many, many other things.

We were therefore gratified when the Congress enacted into the 1971 draft law a small number of long-overdue procedural rights. The phrase, 'procedural rights" introduces the section of the new law which gives these rights that had been absent from our selective service laws since 1940. The amendment recognized for the first time. in more than 30 years that a young man facing the draft is entitled to bring witnesses before his local board; to appear in person before the local board; to have a quorum present and, upon request, to be given a statement of reasons for any adverse decision. It is ironic, of course, that Congress did not finally act to meet the widespread criticism of the Selective Service System until the war was winding down.

I submit, and this will be the essence of my testimony, it is even more ironic that the Selective Service System, instead of trying to implement the liberalizing intent of Congress, has promulgated a series of regulations, and taken other actions which amount to an effort to undercut the new law. My colleagues at this table and others who will appear today, including experienced draft counselors. scholars, writers and acute observers of selective service laws and their administration, will testify in some detail on the impact on American life of 32 years of conscription, and the bureaucracy which it has spawned. I believe Dr. Tarr mentioned this morning that there were some registrants that were not even born until after the Korean war. The sad fact is today that no one of draft age is old enough to remember that there was a situation when the United States was without a draft.

Of course the situation in our history has always been that we do not draft unless there is full-scale declaration of war or a true national emergency requiring it. Only since 1940, however, has the draft been foisted as a permanent system on the American landscape.

In any event, I will attempt to focus my observations on the phenomenon of truculent administrators resisting the implementation. of the spirit and letter of reform legislation.

It is clear I think, Mr. Chairman, to any objective, impartial observer that the section on procedural rights in the new law was intended to be reform legislation, it was intended to change the previous situation, it was intended to improve the rights of regis

trants. That was both the congressional spirit as well as the congressional letter in the words of the legislation. Indeed even the conference committee in rejecting some of the proposals of the Senate, unwisely in our view, but even in its rejection indicated the whole thrust and purpose of what was being done with procedural rights was intended to be reform and improvement.

One of the congressional reforms was the requirement that all regulations be "prepublished" in the Federal Register so that citizens should have an opportunity to see them and make comments before they take effect. This is no more than the normal procedure for regulations of the Federal Trade Commission, Food and Drug Administration, and practically all other Federal agencies. Selective service regulations have for years designated all official selective service forms as regulations, thus facilitating threats of prosecution of a young man who inadvertently or otherwise failed to conform with an official form, as being in violation of a selective service regulation, which is a crime.

It is interesting that Dr. Tarr talked about his new conscientious objector official form, yet there was no mention that the previous 14-page official form for conscientious objectors was not prepublished but simply leaked to various groups by Selective Service Director Tarr himself. Confronted with a barrage of protests about the form, Dr. Tarr announced that it would not be released in its current form, but reiterated that it would be releaseed without prepublication. This was such a plain violation of the face of the law, that it is difficult. to believe that it could have been approved even by Selective Service's own lawyers. The result was that the new revised form-a definite improvement-was prepublished, but, apparently to avoid any future impediments, the longstanding regulations giving official forms the status of regulations was revoked. By this devious route, the congressional purpose of disclosure is just as effectively frustrated.

I think it is worth while to focus in on this just one bit. The Erickson opinion letter which Dr. Tarr's statement says Selective Service intends to follow, has in the last paragraph on page 10 one caveat that is most relevant. The general thrust of the Erickson opinion. is. in effect, that the Selective Service Director does not have to prepublish anything which is not a regulation. However, one warning on page 10 of the letter is where something had previously been a regulation, you cannot avoid the prepublication requirement by changing its status and starting to call it something other than a regulation.

It is just impossible for me as a lawyer, Mr. Chairman, to see how the continued promulgation of regulations without prepublication based upon the unilateral revocation of a 30-year-old regulation which said that every form is a regulation can still be justified as an avoidance of the prepublication process. I would very, very much like to hear what response Dr. Tarr and the general counsel would give to that.

Among the new procedural rights dictated by Congress included. the right to bring witnesses to local board hearings, and the right to actually appear before appeal boards, which had previously op

erated completely behind closed doors. Indeed it may be of some interest to know that it was impossible to obtain the address of the appeal board. Registrants seeking this had been uniformly advised that this information was not available. Indeed it was rumored that appeal boards never even sat, never even passed the papers around, but that they communicated by telephone if at all. And so we welcome the requirement that the appeal board come at least partially out of the closet and is exposed to the registrant and allow the opportunity for a registrant to appear before them.

Senator KENNEDY. Let me just go up to the top of page 3. Your point is that these LBM's still have a substantive effect on registrants. Mr. KARPATKIN. Well, there are two parts to this, Senator. Clearly the intent of Congress as you pointed out in your attempt to refresh Dr. Tarr's recollection this morning on the debate in the Senate, was that all LBM's which had a substantive effect, which were in effect law and not just guidelines, had to be prepublished. His argument was, well, the debate is ambiguous and I have the Erickson letter to support me.

The point I am making is, and I think a much stronger one in terms of the record, a certain provision of the selective service regulations dating back probably to the 1940 draft and certainly at least to the 1948 draft had said that every official selective service form is regarded as a regulation. This includes, for example, form 150, the special form for conscientious objectors. Selective Service had a reason for this. This is the way it could force compliance because violations of a regulation is violation of a statute and violation of a form, which is not a regulation, is not a violation of a statute.

The question came up as to whether Selective Service has to prepublish the form. Dr. Tarr claimed he did not have to publish the 150 form. I am sure somebody on his legal staff pointed out to him here is a regulation that says every form is a regulation. Whereupon, they simply adopted a new regulation revoking that 30-year-old regulation which said all forms are regulations. Mr. Erickson, who is now the Chief of the Office of Legal Counsel of the Department of Justice, observed as one caveat to Dr. Tarr that where something previously had the status of a regulation and was required to be prepublished, the requirement for prepublication does not terminate because you start calling it something else. And I submit that the argument here appears to be unassailable.

With respect to the 15-minute requirement, I think it is almost predictable. Mr. Chairman and Senator Hart, that the 15 minutes which are allowed for local board appearances will turn out to be a maximum as was indicated in your colloquy with Dr. Tarr this morning and it is likewise predictable that the absence of a 15-minute firm requirement for appeal boards will not have the effect of giving persons more than 15 minutes but will have the effect of giving such persons as little time as the appeal board chooses to give them and in all probability even less. I think you will find the appeal boards and the selective service administrators justifying this on the basis of the fact that the regulations say they are entitled to 15 minutes for

local boards but they don't say anything as to what they are entitled to before appeal boards. We would have preferred, of course, specific information in terms of both minimum and maximum, if you will, but at least specific

Senator KENNEDY. Have you had any experience with the appeal boards?

Mr. KARPATKIN. So far as I know, no. Some of my colleagues may have but no one as yet has had a personal appearance before an appeal board.

Senator KENNEDY. Why not?

Mr. KARPATKIN. The new regulations, which were prepublished on January 12 just went into effect on February 12.

Mr. SCHULZ. They have been withheld pending these hearings. Mr. KARPATKIN. Mr. Schulz probably has expert information on that.

Mr. SCHULZ. I don't claim that as expert information. That is my assumption.

Mr. KARPATKIN. So far as I know, no one yet has had a personal appearance before an appeal board but a number of registrants have communicated with their appeal boards requesting personal appearances and I believe the responses they received is that the regulation is not in effect and that the status quo will be followed until new regulations go into effect.

Senator KENNEDY. We should have found out when they expect to be finalized. Do you have any information on that?

Mr. SCHULZ. Sir, I do not. The last period was the November 3 to December 10 period. The first set of regulations went out on November 31, 1971. A lot of comments were received. They were all digested and most of those regulations published in final form on December 10, slightly more than a week after the 30-day period. Now, we have from January 12 through February 12, had only a small number of comments, 12 or 15 comments, and yet there is no final publication yet. It was expected as of a week ago. I was informed by Public Information at National Headquarters that these final regulations would be published between the 19th and 21st of February .That plan has been given up.

Mr. TUCHINSKY. I spoke this morning preceding the start of the hearings with Mr. Kenneth Coffee, the head of the Public Information Office of National Selective Service System and asked him the question. He indicated they were holding back the implementation of proposed regulations in order to allow more time to examine the public comments they have received, few though they seem to be. Senator KENNEDY. In spite of the fact that this was in conference in July last year, agreed to basically in August, signed in September, September 28, here we are talking about October, November, December, January, and February.

Mr. SHULZ. Mr. Chairman, I can speak from personal experience. about that period. As we all know, the conference agreement with respect to all of the amendments of the Selective Service Act except the Mansfield amendment was firm as of August 4 and the two