The lesson I draw from these three episodes is that the Justice Department demonstrated laudable flexibility on those occasions when the nature of the request was consistent with the Department's interest in closing cases without losing them. Only in the case of Attorney General Levi's commitment to abandon cases inadvertently left off the final list by clerical error did the Department make a major concession against prosecutorial interest. Had not Senator Kennedy been the godfather and guarantor of this effort to have this list treated as final, I have some doubt that any such commitment would have been kept in the hard cases of inadvertent omission.

In addressing myself to the provisions of section 1290 as it would involve the Justice Department, I think the most defective and puzzling provision is that it would, as I understand it, remand to the Justice Department at the end of 1976, all of the outstanding business of the Clemency Board. This move would entail a long catalog of detailed problems, including the fate of records now solicited by the Clemency Board on assurances of confidentiality, to those who provide the information.

On a more general level, it is simply inconsistent to lift the Department's jurisdiction over pretrial cases until 1977, because of a critical assessment of its performance, and then suddenly to turn all pre- and post-conviction cases from the armed services as well as Justice back to the Department. There will be instances of uncompleted alternate service agreements among the remanded matters. Some will be treated as pretrial diversion cases and others as analogous to conditional pardons for convicted offenders. In both instances, it is very unlikely that the Department would abandon its basic perception of the clemency issue: that the most compelling consideration of equity is to see that the punished are not defamed by too lenient treatment of the yet unpunished.

In this frame of reference, the important factors are the penal sanctions of the past, not the motives underlying individual actions or the considerations of even a rhetorical policy of national reconciliation. This unimaginative provision of S. 1290 is the prescription for a retrogressive final stage in the program; it would also be a potential deception of those who enter alternate service thinking they would be under the ultimate auspices of the Clemency Board, but whose satisfactory completion would actually be determined later by the Justice Department.

One important measure of the scope of the amnesty problem as we have discovered in living with it at the Law Reporters these last 5 years, has been the reaction to the release in late January of the socalled final list of the Justice Department, material pertaining to which we can submit for the record. When this list was put to use in the 16 centers to which it was released, it provided an important opportunity to learn more about the size of the group of men who went underground as alleged violators and who essentially remain there even though charges against them were either dismissed or never pursued.

On April 11, after receiving your request to testify, I mailed a short questionnaire to all groups who had the list asking for information. Mr. Schulz will discuss these results since they bear more on his testimony, but I will anticipate his analysis only to say that the ques

tionnaire results broadly confirm the severity of the problem. I would recommend strongly that the committee ask the Justice Department and the Selective Service System to spell out the steps they have taken to notify those whose cases were dropped in the review process initiated on November 13, 1974. That, as I indicated before, is a number of around 1,700. Then, unless there is a serious nonfinancial obstacle to taking the same measures with respect to all cases in which Selective Service once issued violation notices, it is difficult to see why this should not be done as a minimal requirement of the just administration of the laws.

Since August 1973, the Selective Service System has provided a directive and a form letter to deal with just this situation. It is contained in RPM 742.12. No comparable provision existed prior to that date, which was 2 months after the end of induction authority. Since all evidence indicates that the lives of many men are now being constrained by the unfounded fear of prosecution, it is callous to argue over how many thousands they may actually be, and additionally ludicrous not to use retroactively the notification provision which was added to the regulations only after the draft had ended and would do no good unless used at this point.

Mr. Chairman and members of the subcommittee, at this juncture I would like to introduce John Schulz, editor-in-chief of the "Military Law Reporter."

Mr. KASTEN MEIER. Mr. Schulz, do you have a prepared statement? Mr. SCHULZ. I do have a prepared statement.

Mr. Chairman and members of the subcommittee, I am pleased to respond to your invitation to appear here this morning-I should say this afternoon.

As Mr. Alder has already mentioned, I am a lawyer, and for 5 years. I have been studying the functioning of the Selective Service System and its interactions with its clients, with the courts, and with the Congress.

To save time I will here only briefly lay out the major points in my written statement which I would like to submit for the record.

Mr. KASTEN MEIER. Yes; and your whole statement, which is a rather lengthy one I note-22 pages together with an additional appendix. Mr. SCHULZ. I would like to submit that for the record.

Mr. KASTEN MEIER. Yes; that will be received and made a part of the record.

[The prepared statement of Mr. Schulz follows:]

STATEMENT OF JOHN E. SCHULZ

Mr. Chairman, members of the subcommittee, I appreciate the opportunity to present this statement. My name is John Schulz. As Mr. Alder mentioned, I am a lawyer; for five years I have been a student of the operation of the Selective Service System (SSS) and its interactions with Congress, the courts and the public. Complaints about this most powerful and least regular of federal agencies have proliferated since 1966, but only in the last year has conclusive evidence come to light of the vast illegality of SSS performance throughout the Vietnam era.

It has been nearly a decade since heavy use of the induction machinery to provide manpower for the Vietnam conflict first revealed serious shortcomings

1 The first great bulge in inductions occurred in fiscal 1966 when over 340.000 men were inducted, more than three times as many as the previous year. January-June 1973 Semiannual Report of the Director of Selective Service 5. All in all about 1.8 million men were inducted between July 1964 and December 1972. Id.

in the Selective Service System. As early as 1967, as you may remember, the Marshall Commission, appointed by President Johnson in 1966, documented widespread ignorance, arbitrariness, and lack of uniformity in the classification and induction decisions of its 4,100 local boards.

Such inadequacies were the natural consequences of structural and operational weaknesses which plagued the system at the time. Although it still gave lip service to the myth that these boards, the heart of the system, functioned as "little groups of neighbors," in truth, 103 urban boards were responsible for more than 25,000 registrants each, and few members lived in the community they served or reflected its professional and racial composition.3 Further, board members were untrained part-time volunteers, averaging 58 years of age, most of whom had served in World War II.5

Given this multiple generation gap, it is hardly surprising that many boards handled registrants unevenly, unsympathetically, even with hostility.

SELECTIVE SERVICE OPERATION: THE RECORDS OF ERRORS

Although a number of reform bills were proposed in 1967, none was enacted in the face of a strong congressional and agency defense of the continued viability of the system."

But the deficiencies of SSS operations continued. In 1969, witnesses before Senator Kennedy's Administrative Practice and Procedure Subcommittee updated and corroborated the Marshall Commission's findings from personal experience: The late Marvin Karpatkin, then General Counsel for the American Civil Liberties Union, reported that a majority of the Selective Service personnel with whom he had come into contact in representing some 500 draft registrants had never even heard of the landmark Seeger' case of 1965, in which the Supreme Court had broadened the qualifications for conscientious objector status to include persons who did not have an unorthodox religious belief in a "Supreme Being."

Kingman Brewster, President of Yale University and member of the Marshall Commission, stressed the lack of uniformity in processing decisions:

[T]he draft does not mean the same thing in all parts of the country. Deferment eligibility and induction probability depend . . . on where a registrant lives rather than on his actual circumstances."

2 "The Selective Service System: Its Operation, Practices and Procedures," Hearings before the Senate Administrative Practice and Procedure Subcomm., 91st Cong., 1st Sess. 82 (1969) (hereinafter 1969 Kennedy Hearings].

3 In 1966, only 1.3% of the 16,632 local board members were black, 0.8% Puerto Rican, 0.7% Spanish-American, 0.2% Oriental, 0.1% native Americans. Moreover, "[c]raftsmen. In Pursuit of Equity: Who Serves When Not All Serve? Report of the National Advisory smaller proportions (less than 25%) than their representation in the general population." In Pursuit of Equity: Who Serves When Not All Serve? Report of the National Advisory Commission on Selective Service 19 (1967) [hereinafter Marshall Commission Report]. 4 General Lewis Hershey, Director of Selective Service from 1940 to 1970, believed in leaving a great amount of discretion in boards, treating deferments as matters of Congressional grace, although they were mandated by statute or regulation. 1969 Kennedy Hearings 90-91.

5 Marshall Commission Report at 19. More specifically, in 1967, one-fifth of local board members were over 70, 400 over 80, 12 between 90 and 99! Sixty-seven percent had done active duty, of which 41% served in World War II and 17% in World War I. Id. Moreover, the low-paid (non-civil Service) full-time female clerks who necessarily did much of the actual work of boards had themselves often been on the job since World War II. Id. at 21. Finally, higher echelon offices of this supposedly civilian agency were staffed mainly with National Guard and Reserve officers. 1969 Kennedy Hearings 328.

The so-called Clark Panel, appointed by the House Armed Services Committee, produced a report strongly supportive of the System following publication of the critical Marshall Commission report.

Seeger v. United States, 380 U.S. 163 (1965).

8 1969 Kennedy Hearings 66. The Marshall Commission had found one state in which more than half of all local board members were of the belief that no conscientious objectors should be exempt. Marshall Commission Report at 29.

91969 Kennedy Hearings at 225. Dr. Brewster went on to attribute this lack of uniformity to the organizational philosophy which has prevailed in the Selective Service System since it creation in 1940. According to that philosophy, whch undergirds the administration and to some extent, the legislation:

First, it is important to the general acceptance of conscription that induction decisions be made by local draft boards-"little groups of neighbors" in General Hershey's phrase instead of by-as the contrast is usually drawn-some distant Federal bureaucrat or computer, and

Inasmuch as community needs and circumstances do vary widely across the country, and local draft boards are most familiar with-and the best judges of the competing military and civilian claims on local manpower, it follows that there will be, and should be, variations from one draft board to the next in deciding who will serve and who will be excused. Id.

Morris Janowitz, a well-known sociologist who specializes in military organization, noted that in recent years the Selective Service System has become an aging organization, rigid and arbitrary in its procedures. The unequal impact of the system, in terms of social and educational background, has been repeatedly documented. However, the sheer nastiness, the difficulty of access and the lack of humane treatment of registrants warrants repeated emphasis and disclosure. Selecting men for military service is indeed a burdensome and difficult task. But it is needlessly complicated by an impersonal bureaucracy, and it is ironic that older female clerks manage the machinery and display little sympathy or ability to communicate with the young people of this nation.10

Ramsey Clark, former Attorney General, criticized the practice of "punitive reclassification," by which local boards, encouraged by General Hershey, asserted the power to declare registrants "delinquent" for acts such as participating in an antiwar demonstration, and then strip them of legitimate deferments and order them prematurely for induction or induct them without physical exams." In assessing the harshness of local board "nastiness," Mr. Chairman, it is important to bear in mind both the extreme complexity of Selective Service rules and procedures, and the unusually limited remedies available to a young man wronged by board action. Few registrants were informed either of the standards for deferments or of the limited right to administrative appeal in the system, and registrants were and are refused the right of representation by counsel in SS proceedings."

Moreover, judicial review, normally the remedy for administrative arbitrariness, was (and is) sharply restricted in draft cases. In effect, a young man who thought his induction order improper had to play Russian roulette to get his day in court. That is, his options were limited to (1) refusing induction and asserting his claim as a defense to felony charge for refusal (facing up to 5 years and a $10,000 fine if he guessed wrong), or (2) submitting to induction and suing for habeas corpus during basic training (facing military service if wrong).

The 1969 effort to document abuses again fell mostly on deaf ears, and despite strong campaign promises, President Nixon did little to reform the system.13 It was actually the courts which took the first steps to subject the Selective Service System to the rule of law. In a single year's time, the Supreme Court struck down three arbitrary System practices and interpretations. The Court Held punitive reclassification “blatantly lawless ;” 14

Threw out on due process grounds a procedure by which local boards routinely denied deferment claims on the merits without permitting even an administrative appeal;

15

Further broadened the conscientious objector category, ruling that strongly held conscience-based pacifist beliefs qualify even if considered nonreligious by the applicant.16

Lower courts rapidly followed the Supreme Court's lead, subjecting the System to rudimentary constitutional standards of fairness and rationality." Indeed, it was judges-expert in legal analysis-who expressed some of the most intense concern over the obscure or confusing technicality of the administrative process. For example, as early as 1969, the D.C. Circuit observed that the Selective Service 10 1969 Kennedy Hearings at 292 (emphasis supplied). 11 Id. at 142-43.

12 32 C.F.R. §§ 1226.4 (e) (local board), 1626.4(d) (appeal board), 1627.4(d) (Presidential appeal board) (1972). The System maintains that boards had government appeal agents and advisers to registrants to assist ignorant registrants. The Marshall Commission found, however, these to be the "most elusive elements of the entire System." Marshall Commission Report at 28.

13 The President did issue Executive Orders to remove some inequities. particularly those in the range of available deferments which discriminated in favor of the affluent and well-educated. E.g., graduate student deferments were phased out in 1967, occupational, agricultural and paternity in 1970. In addition in 1969 President Nixon substituted a random selection or lottery system for choosing registrants for induction to replace the oldest-first rule which had been criticized for exposing young men to many years of potential liability.

14 Gutknecht v. United States, 396 U.S. 295 (1969).

15 Mulloy v. United States, 398 U.S. 410 (1970).

16 Welsh v. United States, 398 U.S. 333 (1970).

17 It would be physically impossible to attempt to summarize the exponential growth in judge-made selective service law between 1968 and 1972-the six volumes of the Selective Service Law Review ran to more than 5,000 pages. Some idea of major trends and the quality of Selective Service response may be found in this witness' statement in "Selective Service and Amnesty." Hearings before the Senate Administrative Practice and Procedure Subcommittee, 92d Cong. 2d Sess. 79-104 (1972) [hereinafter 1972 Kennedy Hearings].

law had developed into an intricate maze through which the uninitiated lawyer, let alone a man subject to the law's provisions, cannot easily find his way.1

Unfortunately, the System responded poorly to binding court rulings, exhibiting the rigidity noted earlier by Janowitz. In particular, National Headquarters was sluggish and grudging at best in shouldering its responsibility to alert System employees (and registrants) of new legal requirements. For example, National Headquarters' use of informal directives to disseminate guidance on Welsh and Mulloy was inadequate." And Headquarters never paid attention to the Judgemade rule, established by 1970 in every state, that local boards are bound to give cogent reasons in writing for denying claims.20

When, in 1971, Congress finally heeded judicial developments and moved to enact further procedural reforms (although without touching the local board system), the System was even slow to implement these."

Despite a massive, documented record of error and failure throughout the Vietnam era, SSS has had its defenders. By 1970, however even Curtis W. Tarr, the new Director of SS, was willing to concede that all was not well. Moreover, in the last five years, strong statistical evidence has accumulated to reinforce the anecdotal and sociological accounts of registrants, draft counselors, lawyers, judges and scholars. In short, the number of successful draft prosecutions has dropped to a fraction of the normal federal court conviction

rate.

SELECTIVE SERVICE ERRORS: THE IMPACT ON CONVICTION RATE

It is a matter of public, although not well-publicized, record that the vast majority of alleged Vietnam-era draft evaders whose cases have been disposed of-over 96% to be exact-were not convicted. To be exact, of the 203.922 persons whom the Selective Service System referred to the Justice Department for 1 Nestor v. Hershey, 425 F. 2d 504, 508 (D.C. Cir. 1969). 19 See 1972 Kennedy Hearings at 87-89.

2) Id. at 91.

21 Id. at 100-04, 111-16, 135-42, 173-75.

22 In addition to the congressional testimony and judicial decisions already referred to. a rash of books and law review articles which appeared between 1966 and 1971 documented the abuses of Selective Service in abundant detail.

Books: S. Tax (ed.), The Draft: A Handbook of Facts and Alternatives (1967): J. Wilenz (ed.), Dialogue on the Draft (1967); G. Walton. Let's End the Draft Mess (1967); J. Davis and K. Dolbeare, Little Groups of Neighbors: The Selective Service System (1968); AFSC, The Draft? (1968); D. Prasad and T. Smythe (eds.). Conserintion: A World Survey (1968); Marmion, Selective Service: Conflict and Compromise (1968); Leinwand. The Draft (1970); T. Reeves and K. Hess, The End of the Draft (1970); Graham, The Draft: By What Authority? (1971).

Articles: See the collections in 1969 Kennedy Hearings and in "Amnesty." Hearings before the House Subcommittee on Courts, Civil Liberties and the Administration of Justice, 934 Cong. 2d Sess. (1974) [hereinafter 1974 Kastenmeier Hearings].

In 1970, soon after his appointment, Dr. Tarr told the House Armed Services Committee: It seemed to me that when I first came into this office that [sic] there was no government agency that did such a poor job of educating its clientele as did Selective Service. Hearings by the Special Subcommittee on The Draft of The House Armed Services Committee, 91st Cong. 2d Sess. 12553 (1970).

In the 1972 Kennedy Hearings, Dr. Tarr acknowledged that the decentralized local board system was seriously out of kilter when he came on board, and that the porttime board members were not current on changes and had no awareness of the problems that daily involve the clerks in metropolitan boards. Misunderstandings caused proce dural errors which led to erroneous inductions and prosecutions, both of which were unfortunate, costly to correct if they could be found, and grossly unfair to registrants 1972 Kennedy Hearings 21.