February 1972.

Totals.

1,365

36

6. The oldest outstanding warrant of arrest was issued by the District Court for the Northern District of California, on August 24, 1947, based on an indictment returned by a grand jury on June 11, 1947. This indictment charged the defendant with failure to submit to induction. It is believed that the defendant, who is a fugitive, is presently residing in Mexico. We would assume the most recent warrant of arrest would have been obtained on this date, since such warrants are obtained on almost a daily basis.

7. It is believed that out of approximately 6000 indictments outstanding against selective service violators at the end of January 1972, the oldest indictment is the one to which we refer in the preceding paragraph.

We have no available information which reflects the average age of pending selective service indictments. In order to compute such information it would be necessary to request 93 United States Attorneys to undertake a survey of all outstanding indictments. I am certain you appreciate that undertaking such a project would be extremely time consuming and expensive.

With regard to your inquiry concerning pending indictments, our statistics for any given period of time commence with the total pending indictments at the beginning of such period. Thus, on January 1, 1971, there were 4499 indictments pending against selectve service violators. To this figure was added a total of 6118 new indictments returned during 1971. During the same period 4500 indictments were terminated, leaving 6117 indictments pending on January 1, 1972. This latter figure will be the starting point for the computation of the statistics for year 1972.

8. Statistics reported to us by the United States Attorneys do not include information which would permit us to compute precisely the percentage of reported selective service violations which are dismissed following a pre-indictment review of selective service files based on errors which invalidate induction orders.

9. The following is a listing, in order of their frequency of occurrence, of procedural errors which are found generally during pre-indictment reviews necessitating return of the files to local boards for reprocessing:

1. No basis-in-fact for I-A classification;

2. No reason stated by the local board for rejecting claim for deferment;

3. File of registrant who timely filed prima facie claim for deferment not considered by the local board;

4. After reclassifying registrant, local board fails to advise him of his rights of personal appearance and of appeal;

5. Clerk of local board gives incorrect advice as to the registrant's substantive or procedural rights;

6. Lack of scienter because induction order mailed to registrant was returned to local board as undelivered;

7. Induction was postponed for more than the permissible 120 days from the original date for reporting;

S. Registrant ordered to report for induction more than one year after taking preinduction physical was given only a physical inspection rather than an examination at the induction station contrary to Army regulations.

10. In the course of executing arrest warrants in cases involving Selective Service violations, the F.B.I. normally interviews the defendant's parents, relatives and friends. If such investigation discloses that the defendant is outside the United States, the Bureau as a matter of practice advises the United States Immigration and Naturalization Service of the outstanding indictment, so that lookout notices may be posted for the defendant at ports of entry.

Electronic surveillance, as an investigative technique, is not employed in locating fugitives who are under indictment for violating the Military Selective Service Act.

This Division has no information as to the cost involved in the Bureau's efforts to locate fugitives.

11. It is my understanding that The F.B.I. does not customarily resort to either continual or intermittent surveillance of families of selective service fugitives believed to be residing in foreign countries. However, as a normal investigative practice, F.B.I. agents may visit periodically parents and former associates of a fugitive to determine if the fugitive has made any current contact with them.

80-620-72- -26

I trust the foregoing will provide for you the necessary information, and if I can be of any further service please let me know.

Sincerely,

KEVIN T. MARONEY,

Deputy Assistant Attorney General,
Internal Security Division.

4. LETTER FROM SENATOR EDWARD M. KENNEDY TO ASSISTANT ATTORNEY GENERAL ROBERT C. MARDIAN (FEB. 10, 1972) AND RESPONSE

FEBRUARY 10, 1972. Mr. ROBERT C. MARDIAN, Assistant Attorney General, Internal Security Division, Department of Justice, Washington, D.C.

DEAR MR. MARDIAN: It is my understanding that your division is now handling the prosecution of Selective Service law violators. The Senate Subcommittee on Administrative Practice and Procedure is holding a set of hearings affecting the Selective Service system administration.

For that reason, I would be particularly hopeful that you would be able to offer testimony that would help clarify the experience of your department in fulfilling its law enforcement responsibilities under the Selective Service Act. In that regard, I of course would be interested in the Justice Department viewpoint on the policy considerations involved in granting amnesty, particularly as it affects pardons and paroles. But I would hope that you also would be able to provide the Subcommittee with hard data on the numbers of individuals believed to be in exile abroad, the numbers of individuals avoiding prosecution for Selective Service prosecution in the U.S., the numbers of complaints now pending, and the recent experience of the Department in the prosecution of Selective Service law violators.

I would hope that you would be able to appear on this subject on February 29 or March 1.

Thank you for your consideration.

Sincerely,

EDWARD M. KENNEDY.

DEPARTMENT OF JUSTICE, Washington, D.C. February 23, 1972.

Hon. EDWARD M. KENNEDY,
U.S. Senate,

Washington, D.C.

DEAR SENATOR: This is in response to your letter of February 10, 1972, advising that the Senate Subcommittee on Administrative Practice and Procedure, which is holding hearings affecting the administration of the Selective Service System, is desirous of certain information concerning the experience of the Department of Justice in fulfilling its law enforcement responsibilities under the Military Selective Service Act.

On January 1, 1971, the Attorney General assigned the supervisory responsi bility over the Military Selective Service Act to the Internal Security Division. The responsibility of this Division is to establish policies and procedures to insure the uniform enforcement of the Act, and to supervise the United States Attorneys in the conduct of criminal prosecutions under this Act. In this connection, it is incumbent upon this Division to give advice, instruction, and assistance to the United States Attorneys with respect to questions of law, policy, and procedure in all criminal cases and matters arising under the Act.

I shall endeavor to answer the specific inquiries in your letter in the order in which they were raised:

1. Any provision for clemency, at this time, would be in contravention of the executive policy recently enunciated by President Nixon on two specific occasions. The President clearly rejected any consideration of amnesty at this time, while hostilities continue and American soldiers remain as prisoners of war in North Vietnam.

Historically, a grant of amnesty to males, who have refused to serve their country during a period of time when the country was engaged in actual hos

tilities, is without precedent. The President's policy is in consonance with the acts of past Presidents. Only twice in our history has a President accorded clemency to persons who refused to comply with the draft laws and serve their country. On both occasions clemency was granted only after cessation of hostilities, and it was granted only to those draft resisters who had been convicted of their offenses. In 1933, President Franklin D. Roosevelt granted pardons and restored citizenship to about 1,500 persons who had been convicted of violating the Draft and Espionage Acts during World War I. In 1947, President Harry S. Truman granted pardons which restored civil and political rights to 1,523 individuals who had been convicted of draft evasion and sentenced under the Selective Service Act during World War II.

With respect to the question of parole, it should be observed that in situations where an individual has been convicted of refusing induction or performance of civilian work as a conscientious objector and has been remanded to the custody of the Attorney General, he has the right under existing Selective Service Regulations (32 C.F.R. 1643.1-1643.13) to apply for release from such custody of parole for service in the Armed Forces or to perform alternative civilian work. Although the present regulations contain no provision for the pardoning of such paroled individuals who served in the Armed Forces or performed alternative civilian work, nevertheless, the right to seek a Presidential pardon is, of course, available to them.

2. Our information indicates that as of February 14, 1972, there were 4,201 fugitives against whom federal arrest warrants were outstanding based upon indictments filed as well as criminal complaints issued for selective service law violations. Of this number approximately 2,300 are believed to be in Canada; and approximately 460 are thought to be residing in various other foreign countries. Thus, the balance of approximately 1,441 defendants, whose whereabouts are unknown, are believed to be living in the United States.

As of the end of January 1972, there was a nationwide total of 6,091 defendants against whom indictments were pending and 12,333 pending cases reported by the Selective Service System to United States Attorneys for violations of the Selective Service law. These pending cases are awaiting completion of FBI investigations and processing by the United States Attorneys to determine whether the facts warrant presentation to the grand jury for indictment. Based upon our experience during the past year, it is expected that about 80 per cent of these cases will be dismissed without prosecution, because the completed investigations will likely reveal that the delinquencies were incurred inadvertently and subsequently corrected, that there were valid excuses for apparent delinquencies, or that the registrants will rectify their delinquencies, e.g., by reporting for induction.

3. Our recent experience in the prosecution of selective service law violators shows that on the average about 40 per cent of registrants ordered to report for induction fail initially to comply with the orders. However, approximately 80 per cent of these registrants eventually comply with selective service requirements and thus remove their delinquencies. The remaining 20 per cent, following completion of an FBI investigation, are indicated; and a substantial percentage of these are allowed to purge their violations by consenting to induction. Their indictments are then dismissed.

The following tables reflect the prosecutive activity during the first seven months of the current fiscal year:

As earlier noted, the substantial number of dismissals of indictments is due primarily to the fact that a great number of indicted draft delinquents choose to submit to induction or enlistment rather than stand trial. In this regard, the Department of Justice has, as a matter of policy, declined prosecution, where, in the absence of aggravating circumstances, draft resisters display a "change of heart" and belatedly submit to induction, or where conscientious objectors submit to an order to perform alternative civilian work.

It should also be pointed out that the number of draft violators who have experienced a "change of heart" and elected to submit to induction or alternative civilian work has increased significantly in the past several months. During the past five months 72 indictments were dismissed because indicted registrants voluntarily submitted to induction.

The recent acceleration in the trial and termination of selective service cases was undertaken primarily to assure the defendants of their constitutional rights to a speedy trial. In addition, this accelerated activity is intended to effect a more faithful compliance with the mandate of Congress, incorporated into the Act itself, requiring the Attorney General to give priority to the trial of selective service cases.

I believe that the foregoing information fully responds to questions in your letter to me of February 10, 1972. In these circumstances, it does not appear that any useful purpose would be served by my personal appearance before your Committee on February 29 or March 1. Moreover, I am scheduled to appear on those dates before the House Subcommittee on Appropriations to testify concerning this Division' budget for the next fiscal year. In the event, however, you desire further information concerning our handling of the prosecution of Selective Service violators, I am arranging for Mr. John H. Davitt, Chief of our Criminal Section, to appear before the Committee at 10:00 A.M. on February 29, or such other time as your staff advises him to be present. Mr. Davitt is the section chief immediately responsible for the supervision of Selective Service matters for this Division and will be in a position to furnish whatever additional details the Committee requires.

Sincerely,

ROBERT C. MARDIAN, Assistant Attorney General, Internal Security Division.

5. AMERICAN ETHICAL UNION ON CONSCIENTIOUS OBJECTION: SELECTED PUBLIC AFFAIRS RESOLUTIONS

FOR RECOGNITION AS CONSCIENTIOUS OBJECTORS OF PACIFISTS ON NONTHEISTIC

GROUNDS

Ethical Societies are religious Fellowships. As such we recognize the right and duty of our members to follow the dictates of their own conscience and religious convictions in all matters including the non-pacifist or pacifist positions.

Further we maintain that those rights which are provided in law entitling members of theistic religious fellowships to recognition of their status as conscientious objectors shall be available to those who hold the pacifist convietions on non-theistic grounds.