prosecution as violators between 1964 and 1973, U.S. Attorneys chose to prosecute only 19,272 (9.45%), despite elaborate screening by SSS prior to referral." And the federal courts convicted decreasing fractions of these indicted draft evaders over the years, the rate dropping from 75% in fiscal 1964 to 28% in fiscal 1973, a strikingly low figure in federal criminal law. (By contrast, the conviction rate over the same period in all federal narcotics offences was 75.8%, in all federal bank robbery prosecutions, 82%.*

27

SELECTIVE SERVICE ERRORS: THE COVER UP

26

Both SSS and DoJ have consistently misinterpreted these statistics in an attempt to cover up the fact that they stand for myriad flawed cases, i.e. cases in which draft "refusers" committed no Selective Service violation at all, because the induction orders they refused were illegal, as determined authoritatively by federal courts and U.S. Attorneys.

SSS and DoJ have consistently attributed the low draft indictment and con24 The detailed figures are given as totals and by fiscal year in the following table. The second total figure, covering 1964-1973, most nearly covers the period of President Ford's clemency program.

Sources: (1) Letter from Assistant Attorney General Henry E. Peterson to Representative Robert Kastenmeier, Mar. 1, 1974, reprinted in "Amnesty," hearings before the Subcommittee on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Committee, 93d Cong., 2d sess. 36 (1974) (all figures in col. (a) except 1974, which was supplied by Selective Service System national headquarters), (2) 1974 semiannual report of the Director, Administrative Office of the U.S. Courts 62, fig. 32 (as supplemented for fiscal 1974 by preliminary figures from 1974 annual report).

25 Id.

Author's calculation from absolute figures in Fig. 30, 1964 Semi-annual Report of Administrator of U.S. Courts. 27 Id., Fig. 34.

viction rates mainly to delinquent registrants' willingness to accept induction in exchange for nonprosecution or dismissal of indictment. As you may remember, Mr. Chairman, in this Committee's hearings last year, former SSS General Counsel Walter Morse acknowledged that 10,153 of the 19,271 registrants indicted between August 4, 1964 and December 29, 1972 had their indictments dismissed before trial; this, he said, was "for the most part for the reason that they ... submitted to induction or upon an FBI investigation it was found that their violation was not willful." 28 Likewise, he said, the reason all but 19,000 of the 200,000-odd young men referred for prosecution were never indicted was that they purged their offenses by submitting to induction or as the result of FBI investigation.20

In 1972, Assistant Attorney General Robert Mardian, then responsible for draft prosecutions, gave the same explanation to Senator Kennedy's subcommittee; eighty percent of all registrants who refuse induction eventually submit, he said.30

This view gains superficial strength from the fact that the great majority of nonconvictions have taken the form of dismissals rather than acquittals. That formal matter has no substantive significance, however, since it is both routine DoJ administrative practice and the usual judicial approach to dispose of bad draft cases on the merits by dismissing charges.31

THE MOMENT OF TRUTH: FISCAL 1974

Of course, it is true that a number of young men did accept induction in lieu of prosecution, as Mr. Alder observed earlier. But until fiscal 1974, it was impossible (absent a very detailed comparison between total induction orders issued and total inductions) to know conclusively whether Selective Service and the Justice Department were in error in attributing the high dismissal rate almost exclusively to voluntary induction by violators.

Induction authority lapsed, however, at the end of fiscal 1973 (July 1, 1973); since that date nobody has been drafted, and, significantly, nobody under indictment has been permitted to enlist." This, of course, simply means that no part of the fiscal 1974 dismissal rate can be attributed to acceptance of military service. Yet, the conviction rate for fiscal 1974 was only 33%,-only five percent higher than in 1973. In other words, all 67% of the cases concluded in 1974 were bad. Likewise, declined indictments decreased by only 15% between 1973 and 1974.4 This suggests that only about 17.5% of declined prosecutions were due to acceptance of induction. If so, more than 80% of all cases of declined prosecution in 1974 and prior years were attributable to invalid induction orders. Extrapolating these figures to prior years suggests that some four-fifths of the 200,000 cases referred were bad, or more than 150,000.

Even if one accepts the more conservative estimates derived from Department of Justice submissions to Senator Kennedy's subcommittee in 1972,35 one-third of all referrals were rejected by DoJ for legal flaws. That is, about 68,000 persons (% of 203,922) were found not to be violators after being so declared by SSS and, in some cases, after being indicted. In fact, even on the unsupported DoJ figure referred to earlier, 20% of all these cases, or over 40,000 individuals, are involved.

EXPERIENCE WITH THE FINAL OFFENDER LIST

This statistical analysis is borne out, I believe, not only by the empirical record previously rehearsed, but also by clemency counseling centers' experience since January 1975, with the Justice Department's "final" list of unconvicted draft offenders.

At the urging of Senator Kennedy, Mr. Goodell, Mr. Alder, myself and others, the Justice Department agreed in December to prepare a final list of all persons 28 1974 Kastenmeier Hearings 158.

29 Id.

30 1972 Kennedy Hearings 400.

31 See, e.g., Cox v. United States, 332 U.S. 422, 432 (1947) United States v. Boardman, 419 F. 2d 110, 114 (1st Cir. 1969), cert. denied, 90 S. Ct. 1124 (1970); United States v. Seeley, 301 F. Supp. 811 (D.R.I. 1969).

$2 See the exchange of letters between Senator Taft, Assistant Attorney General Henry Petersen, and Deputy Assistant Secretary of Defense Leo E. Benade concerning the Defense Department's firm policy barring enlistment of anyone considered a draft violator, whether or not under indictment. 1974 Kastenmeier Hearings 344-46.

33 See note 24, supra.

34 Id.

25 1972 Kennedy Hearings 396.

(excluding non- or late registration cases) it still considers to have violated the law. Although, as mentioned earlier, over 200,000 persons were forwarded for prosecution in the Vietnam era, and only about 9,000 of these were convicted, the final DoJ list numbered only around 4500.

At the end of January, this list was placed in the custody of sixteen independent counseling centers in the United States and Canada, each of which had agreed to hold the list on a quasi-confidential basis, in order to tell registrants who called in whether their names appeared on it or not. According to a survey just concluded by our office, a total of some 4400 calls were received by these centers between the end of January and the end of March. Significantly, only about one-half were from individuals whose names were on the list.

The remaining 50% of the callers thus learned for the first time in February or March of 1975 that what they reasonably took to have been a serious draft violation back in 1973, or 1971, or 1968, or before, was in fact no crime at all. According to Steven Pither, Director of the Clemency Information Center in Indianapolis, some young men actually broke into tears when they learned of their innocence tears of joy at realizing that they could at least come out of hiding or home from Canada, and tears of rage, too, at comprehending that they had wasted the last two, or four, or seven or more years underground or in exile because of Selective Service processing errors and failure to inform registrants of their rights, and to both Justice Department and Selective Service failure to let them know of their innocence once it was concluded that they had committed no crime.

CONSEQUENCES FOR EVADERS NOW

What are the implications of all this for draft evaders of the Vietnam era? As to one of the 4,500 on the final list, there is a very good chance probably at least 2 out of 3 that he is innocent, despite an uneven 37 file review ordered by the Attorney General last November. This is based on the statistics cited earlier, which show that fewer than one-third of all indicted registrants tried since the induction option ceased to be available on July 1, 1973, have been convicted, and on the natural tendency of prosecutors to overestimate the strength of their cases. 38

As for the specific defenses which might be available to these persons, the most likely are those which flow from the problems referred to earlier, i.e., Wrongful denial of conscientious objector claims.

Punitive reclassification.

Failure to give cogent reasons for denial of claims.

Failure to permit administrative appeal from denial of claims.

Lack of basis in fact (i.e., any objective grounds) for denial of claims.

Giving of misleading or erroneous advice to registrants.

For the 20,000 to 80,000 innocent men who may still think themselves violators: I maintain, Mr. Chairman, that a very substantial problem persists as regards informing this large but unidentifiable group of their innocence. The existence of a final list has helped some, as noted above, but it has received far too little publicity.

Indeed, at the end of January, when the existence of the list was made public, this fact was reported almost nowhere in the United States in any medium, according to the Director of the Indianapolis Clemency Information Center, who at the time took an extended automobile tour from coast to coast to investigate the question.

What is needed, at a minimum, is a large-scale multimedia campaign, aimed both at Canada and the U.S., of the kind the Presidential Clemency Board recently mounted to try to reach convicted evaders.

36 It is worth underscoring the fact that these were concrete determinations of innocence in the judicial sense, not subjective or ideological notions of any kind. Indeed the many cases never indicted must have been particularly weak, for they were dropped by prosecutors (U.S. Attorneys), who normally insist on trying even borderline cases. 37 About 25% of cases were dismissed overall, but in many districts no cases were dismissed, e.g., Middle Alabama (0 of 2), E. Arkansas (0 of 10), N. Florida (0 of 16), E. Illinois (0 of 20), S. Iowa (0 of 23), Kansas (0 of 21), E. and W. Louisiana (0 of 20), Oklahoma (0 of 17), W. Pennsylvania (0 of 67). M. Tennessee (0 of 8). W.D. Virginia (0 of 8), N. and S. West Virginia (0 of 14), and Wyoming (0 of 8). By contrast, 19 of 59 (33%) were dismissed in Connecticut, 14 of 19 (75%) in Southern Mississippi, 16 of 77 (21%) in New Jersey, and 22 of 74 (30%) in Western Washington.

39 See note 36.

58-201-75-14

Even this may not be enough, given many fugitives' distrust of the American government. For these, perhaps, only a blanket amnesty (which they theoretically don't need because they are innocent-only unaware of it) will convince them that it is safe to come home again.

For the long term, the Selective Service Act should be amended to require either the SSS or DoJ, or both, to inform the families of delinquent registrants when their cases are dropped.

For the large number of "violators" who succumbed to U.S. Attorney pressure and accepted induction in lieu of standing trial: Given registrants' ignorance of their rights, and DoJ failure to screen files thoroughly throughout the Vietnam era 39 it is reasonable to conclude that a number of threatened prosecutions used to pressure men into accepting induction were no good. In other words, some part of the many unwilling young draft evaders who finally went in were illegally inducted their induction orders were flawed by Selective Service errors.

Obviously, these men must be considered unwilling soldiers, for they had refused induction many times before they finally went." Thus it is important to learn how many of these men went on to have disciplinary problems in the military, by reason of unauthorized absence or otherwise.

The Presidential Clemency Board should, I think, look into this question, at least as regards the convicted or discharged veterans within its current jurisdietion. It could start by obtaining the names of all violators who submitted to induction from DoJ or SSS files. Then a small random sample could be evaluated. Should relevant files be found not to exist due to routine destruction, this would have some implications for blanket amnesty, a matter to which I will return later. For the 686 who have already signed alternative service agreements: Mr. Chairman, as incredible as it may sound, there is also some chance that U.S. Attorneys have signed up some young men whose files contain viable defenses but who don't know it, i.e., who are innocent and so do not need to “earn" reentry involuntarily or otherwise. The likelihood of this stems from what appears to have been continued DoJ use of "prosecutorial" pressure in this clemency period. Nor was my concern lessened by the Department's extending the right to counsel to those considering alternative service. Not only have few lawyers been made available to those who cannot afford one of their own, but more importantly few youths and probably even fewer lawyers are (1) aware that many files contain errors, or (2) able to discover them in any event. There are just not enough skilled draft lawyers and counselors around any longer.

NONREGISTRATION CASES

Mr. Chairman, as the cases of young men who failed to register during the clemency period or did so belatedly pose rather special and difficult problems, they merit separate discussion. For one thing, most of these offenses have not come to the attention of the authorities, so, as noted, they are excluded from the DoJ's final list, but the statute of limitations will not run out on them for 13 years (at age 31).

Too, the numbers involved may be unusually large. As you may remember, Mr. Chairman, in your hearings last year it was reported that in 1973 Byron Pepitone, the current director of Selective Service, estimated that some 10% of the 2 million young men who turned 18 in 1972 failed to register." Mr. Glenn Bowles. SS Onerations Manager, reported that 1973 registrations again fell short by about 10%. Thus, for these two years alone, we are talking about 400,000 non- or late registrants. And, technically many of these offenses occurred outside the clemency eligibility period, which ended March 28, 1973.

Third, a rather high percentage of these are probably nonwillful, especially for 1973. That year, as you remember, nobody was inducted and induction authority ceased on July 1. So it is easy to understand that many youths thought they no longer had any obligation to register.

Finally, nonregistration cases pose unique prosecutive problems for the government. As noted, many are undetected altogether. And some federal courts hold

This is the experience of counselors and lawyers throughout the period in question. It is also implicit in the results of the November 1974 file screening mentioned above, in which more than a quarter of remaining cases were dropped.

Selective Service normally did not forward an individual for prosecution until he had been given three or four opportunities to submit. Comment, American Deserters and Draft Evaders, 13 Harv. Int'l L. Rev. 88 (1972).

41 1974 Kastenmeier Hearings 283.

42 Id. at 163.

the government to a stringent standard of proof indeed. For example, in United States v. Klotz," the Eighth Circuit recently threw out a nonregistration prosecution for failure to prove willfulness where the government had proved that Selective Service posters publicizing the continuing duty to register had been posted in prominent places in the defendant's home town, but had put on nothing to show that Klotz was personally aware of his obligation.

Moreover, with nonregistration cases, the U.S. Attorney cannot rely on an air-tight file case, as with induction refusal and other draft offenses. With nonregistration, there really can be a problem in providing a willful omission. Nonetheless, prosecutions for failure to register have recently seen a sharp rise, from 856 in calendar 1972 to 3,492 in calendar 1973.**

Because of the difficulty of prosecution, young men with registration problems may have better alternatives outside of the clemency program. Under the Klotz case, many probably can successfully defend against prosecution if they do not admit knowing violation. Admittedly, this may require a full-dress trial, not the sort of paper file review which generally suffices in other draft cases; but if a nonregistrant can convince the General Counsel of Selective Service (to whom the U.S. Attorney will refer his case) that his violation was not knowing, prosecution may be avoided under current policy.45

In contrast, by contacting U.S. Attorneys about participating in the clemency program, many young men may have incriminated themselves by implicity revealing knowledge of their offenses, thus supplying a crucial element in what, would otherwise be an inadequate government case.

Just three weeks ago. Mr. Chairman, the President issued a proclamation cancelling young men's obligation to register within 30 days of their 18th birthday; in order to reevaluate the system." This will soon be replaced with a nationwide, once a year system, but meanwhile no one currently turning 18 has any obligation to register. The significance of this for amnestying registration violators will be addressed later.

CLEMENCY OR AMNESTY?

Mr. Chairman, I have tried in this statement to give a balanced but full account of both the quantity and quality of Selective Service System and Justice Department misbehavior during the Vietnam war era, and to draw out its consequences for the thousands of individuals directly affected.

Frankly, though, I do not think I can fairly stop there. The draft mess affected not only those who actually made claims and were arbitrarily refused proper treatment. Its influence also extended to those who never attempted to work within SSS, whether because they were ignorant of their "rights," or because they knew they could not get a fair shake, or because they were incapable of prosecuting a claim without expert assistance they could not afford, or because the bad example set by Selective Service lawlessness bred in them a like disregard of the law, for some other reason.

I subscribe to the theory that amnesty should not properly be discussed as a matter of right and wrong, but rather of oblivion in the public interest. Still, all that Americans seem to be willing to consider as regards draft violators is what is fair.

So, Mr. Chairman, I submit that in view of the abject record of wholesale law violation and trampling on individual rights which Selective Service complied throughout the Vietnam era, blanket amnesty for alleged draft evaders is not only sensible but the only fair approach.

In theoretical terms, how could a case-by-case evaluation be conducted of the finely graded degrees of justification available to hundreds of thousands of individuals more or less directly affected by millions of arbitrary, uneven, decentralized, unexplained local board actions concerning them, their friends, and others?

In practical terms, how can files be reviewed when they have been destroyed?" And where can sufficient skilled person power be found to sift remaining files for legal errors?

43 500 F. 2d 580. 2 MLR 2567 (8th Cir. July 19, 1974). 44 1974 Kastenmeier Hearings 37.

45 The most recent Justice Department memo on prosecution policy with respect to registration violations is attached as an appendix to this statement. Selective Service polley was summarized in 1974 Kastenmeier Hearings at 165 by Walter Morse, former General Counsel of Selective Service.

43 Proclamation 4360. Terminating Registration Procedures Under the Military Selective Service Act, as Amended, 46 Fed. Reg. 14567 (April 1, 1975).

47 Since 1971. the routine practice of SSS has been to destroy the great bulk of draft files from the Vietnam era, preserving only those of the handful of remaining violators.