Aletho News

Extend draft registration to women — or end it?

By Edward Hasbrouck | The Practical Nomad | December 11, 2015

Congress will soon have to choose whether to amend the Military Selective Service Act to extend draft registration to women, to end all draft registration, or to allow registration to end by court order.

When the Supreme Court upheld the current males-only draft registration in 1981, it based its decision on the ineligibility of women, at that time, for combat assignments, and on the “deference” of the courts to Congress and the President in such military matters. The factual predicate to that decision has now changed, with the announcement last week that women in the military will be eligible for all combat jobs.

On Tuesday of this week, by scheduling coincidence, the 9th Circuit Court of Appeals heard oral argument (which had been scheduled for that date months earlier) in one of several lawsuits challenging the Constitutionality of males-only draft registration that were filed two years ago when the military first began opening combat assignments to women.

From watching the oral argument, it seems likely that the Court of Appeals will send this case back to the U.S. District Court in Los Angeles for consideration of whether males-only draft registration is still Constitutional.

The complaint was dismissed by the a U.S. District Court judge in Los Angeles who found that (1) the controversy was not yet “ripe” for decision and (2) the plaintiff’s lacked standing to complain.

On “ripeness”, it seems clear from the oral argument that the 9th Circuit judges think that if the case wasn’t ripe when it was dismissed in 2013, it is now in light of the latest changes to military policy. There would be no point to upholding the dismissal of the original complaint, when an identical new complaint could immediately be refiled, and would be ripe for decision.

On standing, the issue is that none of the plaintiffs in this case are men who can claim that they are being harmed because they didn’t register. There are a named plaintiff, who says he registered, and an organizational plaintiff. But the plaintiffs argued that they have as much basis to claim standing as the plaintiffs in the case the Supreme Court decided in 1981, who were similarly situated. In addition, plaintiffs’ counsel argued very persuasively that the continuing obligation to provide notice of address changes is a continuing harm that gives registrants continuing standing to challenge that registration requirement.

If I’ve read the tea leaves correctly, this means that in a matter of weeks or months — probably before but possibly not until after the November elections — the 9th Circuit will overturn the dismissal of the complaint, and remand this case to the U.S. District Court. The next step after that would be a status conference in Los Angeles to schedule further proceedings (discovery, briefing, etc.) on the merits of the reinstated complaint.

Some other lawsuit might make it to a decision sooner. But once a court looks at one of these cases on the merits, the outcome seems a foregone conclusion, as the Pentagon’s own analysis released last week suggests. It’s highly likely that a court ruling in this or another case will, sooner rather than later, force Congress to choose whether to extend draft registration to women, or to let a court decision ending registration stand.

Under current law, courts can’t order women to register. So if a Federal court finds that males-only registration is illegally discriminatory, registration will have to end unless Congress amends the law to extend the registration requirement to women.

Last Sunday, the New York Times dismissed this issue, editorializing that Congress could “easily” change the law to require young women, as well as young men, to register.

But it’s not so simple as all that. It won’t be enough just to change the law. Draft registration is not self-implementing. Extending registration to women will also require getting women to comply with the law, and enforcing the law if women don’t comply voluntarily.

Thirty-five years of failure by the government to get young men to comply with the draft registration law, and the complete abandonment of any attempt to enforce that law more than 25 years ago, suggest that getting young women to register for a draft is likely to be much more difficult than the Times’ editorial board has realized.

As some of my readers know, although it’s not my most frequent topic in this blog, I spent most of the 1980s, starting just about the time I left the University of Chicago, as an organizer with the National Resistance Committee and an editor of its newspaper, Resistance News.

When draft registration was reinstated in 1980 after a five-year hiatus, our most optimistic prediction was that half a million men in the first age cohorts required to register might not sign up. A month after the initial mass registration period, the first independent analysis of registration data revealed that more than a million of these young men had not heeded the call to register. [“Million Snub Draft”, Boston Globe, August 27, 1980, page 1; the original banner headline in the Globe was apparently added in page makeup and is missing from the wire service versions and the fragment of the article in the Globe’s digital archive.]

Desperate to scare up enough registrations to “maintain the credibility of the system”, as one internal Justice Department memo put it, the government eventually decided to try to intimidate the mass of nonregistrants through “well-publicized prosecutions” of a few of those they considered the “most vocal” resisters. As one of twenty nonregistrants who were singled out for indictment in 1982-1986, I was convicted and spent four and a half months in a Federal Prison Camp in 1983-1984.

(I was prosecuted by Robert Mueller, then a junior Assistant U.S. Attorney in Boston and later the Director of the FBI. My case was Mueller’s first high-profile trial, and my head was a significant early stepping stone in his political climb. Mueller’s boss, then U.S. Attorney and later Governor William F. Weld, also attended my trial — annoying my mother by sitting next to her — to observe Mueller’s performance in court.)

But despite convictions and prison sentences, these show trials backfired and were quickly abandoned. They called attention to the resistance to draft registration, made clear that there was safety in numbers, and showed that the government could prove the “willfulness” of only those nonregistrants who made public statements (which were essential to the cases against us in court) acknowledging that we knew we were supposed to register.

Nobody has been prosecuted for refusing to register since 1986. But the government has never been able to find a face-saving way to end registration and shut down the Selective Service System without admitting that its scare tactics failed, or dealing with the implications of young people’s insistence on making their own choices about which wars they are willing to fight.

Today, many young people register only because of laws that link draft registration to drivers licensing in some states, and to eligibility for student aid. The resistance by many states to implementing the Federal “REAL-ID Act” (which I discussed in this presentation at the Cato Institute earlier this year), and the repeated failures, including once again this year, of proposals to link drivers’ licenses to draft registration in the most populous state, California, suggest some of the limitations of this carrot-and-stick approach.

(Today, as I’ve discussed elsewhere, nonregistration is most concentrated among those poor young men of color who see little hope of going to college even with the limited available government aid, and especially among undocumented young men who are categorically ineligible for the government programs linked to draft registration, but who are still required to register.)

Many of the people who registered under these financial pressures would resist if actually drafted, and many of these nominal registrations have been effectively invalidated by unreported address changes, even though they are counted in Selective Service “compliance” statistics.

President Obama, who was in the first age group required to register, has said that he registered for the draft. But he hasn’t commented on whether he informed the Selective Service System every time he changed addresses until his 26th birthday, as is required by the law and as is essential for registration records to be of any use in the event of a draft. Few people did so in the 1980s, or do so now. The only audit of Selective Service address records, in 1982, found that 20-40% of the addresses on file with the SSS for registrants in the age groups that would be drafted first were already outdated, and up to 75% for those registrants in their last year of potential eligibility to be drafted.

Many, perhaps most, induction notices sent to current registrants would wind up in the dead-letter office. Without being able to prove that anyone knew they were supposed to tell the Selective Service System when they moved, it’s impossible to enforce the change-of-address notification requirement.

Is there any reason to think that young women would be more willing to sign up to be drafted than young men have been? I doubt it. When President Carter announced his proposal to reinstate draft registration in his State of the Union address in 1980, some of the strongest initial grassroots opposition came from women. Many women remained active in the resistance even after the bill approved by Congress was narrowed to require only men to register, though the press tended to focus on male resisters.

Women have been among those health care workers most concerned about Selective Service preparations for for a draft of doctors, nurses, and many other medical professionals, which would include women but would be based on professional licensing lists rather than on self-registration of potential draftees.

Women share many of men’s reasons not to register, and have other reasons of their own. There are both feminist and sexist arguments against subjecting women to the draft and draft registration.

Are the government’s arguments for why young women (or men) should register for the draft, and promise to fight for or against whomever they are told, any more persuasive today than ever? I don’t think so.

Draft registration was reinstated in 1980 in response to the Soviet invasion of Afghanistan, to prepare for U.S. intervention in support of the fighters who were then called the “mujahideen” and who would later christen themselves the Taliban and Al Qaeda. That the U.S. government put me in prison for refusing to agree to fight on the side of the Taliban doesn’t say much for its judgment of which wars to intervene in, or on which side. Today, people of all ages and genders question why the U.S. is supporting the fundamentalist (and supremely sexist) monarchy in Saudi Arabia, or the dictatorship in Yemen, among others.

Congress should have no illusions. Extending draft registration to women will provoke at least as much resistance as did draft registration for men in 1980. It will force the government, once again, to choose whether to turn the country into a police state to round up all those who fail to register on demand, or to try (probably unsuccessfully) to terrorize them into compliance through show trials and incarceration of a few of the people seen as “leaders” of the resistance.

Regardless of whether Congress or the President think that young women “should” be ready to be drafted, the only realistic choice for Congress is not to extend draft registration to women, but to end it for all.

That’s not likely to be part of the terms of debate, however, unless opponents of draft resistance — including young women who won’t register voluntarily, and older people who support them — make it an issue.

In 1981, the decision of whether to continue — and whether to enforce — the draft registration program that had been reinstated during the Carter administration was a “wedge issue” that divided hawks from libertarians within the Reagan administration and its supporters.

One of my friends and colleagues in the National Resistance Committee, Alex Reyes, has written about how awareness of plans for demonstrations in support of draft registration resistance precipitated this internal debate, and of how close it came to ending draft registration.

Today, whether to extend draft registration to women or end it entirely is likely to be a similar wedge issue dividing Democrats, Republicans, and military personnel. Will sexist warmongers support subjecting young women to the draft, or depriving the military of its “Plan B” for manpower by ending draft registration entirely? Will supporters of President Obama, or of a future President Hillary Clinton, see subjecting women to the draft as a step towards gender equity, or a step towards more of the gendered violence of war? And if they see it as both, how will they vote?

But there’s more at stake than the opportunity for partisan politicians to embarrass their opponents, and it will be up to draft registration resisters and supporters to make that point.

Draft registration of men has been a fiasco for the government since its resumption in 1980. The likelihood and imminence of a court ruling that males-only draft registration is now unconstitutional provides the perfect opportunity for Congress to end draft registration entirely.

December 14, 2015 - Posted by aletho | Civil Liberties, Militarism | al-Qaeda, Human rights, New York Times, Robert Mueller, United States