"Millions of Female Felons"? Government admits resistance made draft registration unenforceable

[Editorial cartoon by Mike Keefe, Denver Post, 1982]

We won — and now, thirty years later, the government has finally admitted it.

It’s not often that government officials admit to failure in the face of popular resistance. When they do, it’s an occasion for celebration.

Draft registration was reinstated in 1980, supposedly to prepare for possible deployment of US troops in Afghanistan on the side of the Islamic fundamentalist warlords and “mujahideen” who were then fighting against the USSR. The US government put me in prison for refusing to agree to fight on the side of the people who would later become the Taliban and Al Qaeda! It’s no wonder that people of my generation, or later generations, have no faith in the ability of the US government to decide for us in which wars, or on which (if any) side, we should fight.

Today in U.S. News & World Report, Steven Nelson has the most significant piece of reporting about draft registration and the Selective Service System in decades, asking questions that journalists, politicians, and the public should have been asking years ago.

It’s been obvious — to anyone who wanted to look — that resistance forced the government to abandon the attempt to enforce draft registration in failure in the 1980s, after show trials of a handful of the “most vocal” nonregistrants. But this is the first time that responsible Selective Service officials and former officials have confirmed this on the record.

In 1984, the New York Times published a letter to the editor I wrote from the Federal Prison Camp in Lewisburg, PA, under the headline, On the Failures of Draft Registration: “The issue for Congress and the American people is the failure of draft registration: After almost four years of registration, a million of those eligible haven’t registered,” I wrote. “In such circumstances, it is absurd to think that reinstatement of the draft is a realistic possibility, and it is dangerously naïve to make foreign policy commitments that will require a draft.”

In response to my letter, Rep. Gerald Solomon (the author of the “Solomon Amendments” conditioning eligibility for Federal student loans and other programs on compliance with draft registration), denounced me and other draft resisters as “yuppies”, while Selective Service System spokesperson Wil Ebel wrote to the Times that, “Edward Hasbrouck’s letter assailing draft registration is woefully in error. Perhaps we should not expect an incarcerated individual to have accurate and up-to-date information, but your readers should not be deluded by Mr. Hasbrouck’s misrepresentations. Draft registration is not a failure.”

It was clear, even without any official announcement from the government, that the Department of Justice gave up trying to enforce the draft registration requirement long ago. In today’s story in U.S. News & World Report, Ebel “says he can’t recall the precise discussions that led to abandonment of new cases” against nonregistrants.” But the lack of prosecutions of any more nonregistrants since 1986, and the testimony in today’s story by other current and former Selective Service officials, make clear that I was right, and Ebel was wrong, as long ago as 1984: Draft registration was and still is a failure for the government — or a victory for the resistance, depending on which side you’re on.

(Former U.S. Marine platoon commander in Vietnam and later FBI Director Robert Mueller, who prosecuted me in Boston as an Assistant U.S. Attorney, “did not respond to requests for comment” from U.S. News & World Report. William Weld, who as U.S. Attorney and Mueller’s boss was also involved in getting permission from Washington to have me indicted — and who for some reason insisted on sitting next to my mother in the courtroom during my trial, creeping her out — isn’t mentioned as having been asked for comment.)

The article is worth reading in full, but I’ve posted some key excerpts below, followed by my analysis and comments:

Gender-Neutral Draft Registration Would Create Millions of Female Felons

by Steven Nelson, U.S. News & World Report, May 3, 2016

A key congressional committee voted last week to require young women to register for potentially compulsory military service, but the gender-equalizing reform threatens to make felons out of women who refused to participate.

Though prosecutions currently appear unlikely, men jailed for not registering with the Selective Service System and some former authorities who participated in the cases are concerned about criminalizing a large swath of the population.

“It will inevitably lead to massive resistance, whether visible in the streets or women just blowing it off the way men have,” says Edward Hasbrouck, prosecuted for not registering in the 1980s. “Congress is smoking crack if they think women can be forced to register.”

Hasbrouck served more than four months in prison after catching the eye of an ambitious federal prosecutor, Robert Mueller, who went on to be FBI director. He originally received a suspended sentence, but recalls an unamused judge sending him to prison in late 1984 [actually 1983 -EH] for doing peace activism to satisfy court-ordered community service. [Despite the testimony of my probation officer, Esther W. Salmon, that she believed that my peace work satisfied the terms of the judge’s original sentence and community service order. -EH]…

The government was “faced with far more people who had initially refused to register in the start-up period than they had ever imagined — it was beyond their worst nightmare. They were self-deluded in the way people today who think they can just wave their wand and women will sign up for the draft are self-deluded,” Hasbrouck says….

In all, 20 men were prosecuted in the 1980s for not registering, a diverse and geographically scattered group including ideological advocates of individual rights and members of the historical peace churches.

The last indictment came in 1986 when Terry Kuelper of Arkansas was slapped with the felony charge. He agreed to register before trial and the charge was dismissed. Court proceedings ended when Gillam Kerley of Wisconsin was released from a three-year prison sentence after four months, with the case ending in 1988….

Former Selective Service associate director Edward Frankle … developed a process for … enforcement of the registration law…. “We did what we had to to keep at least some level of credibility in the system,” he says. “You couldn’t just totally ignore it — how could you do that and still with a straight face say, ‘Yeah that’s the requirement’?”

In the late ’80s the Justice Department discontinued prosecutions. Dick Flahavan, a spokesman for the Selective Service who was with the agency at the time, recalls the Justice Department “decided that since there was no draft … there are limited resources and the FBI’s time would be better spent chasing white collar crime than some Mennonite kid through Pennsylvania.”

“We said, ‘Fine, we understand,’ and that’s why it ended in ‘88,” he says. “The agency did agree to what the Justice Department proposed, a suspension of prosecutions [during peace time]. Since they did the prosecutions we didn’t have much leverage anyways.”…

Flahavan says the Selective Service had hoped for a much stronger approach from federal prosecutors, but was rebuffed.

“What we would have preferred was every year in all 95 judicial districts there be a prosecution to keep the heat on and the publicity going,” he says. “But they couldn’t sustain that.”

If someone registered just before trial, the prosecution would be dropped, Flahavan notes, making the pursuit of resisters “really a losing proposition for the feds” and often “a big waste of time.”

Wilfred Ebel, acting director of the Selective Service System in 1987, when further waves of prosecutions were being considered, says he can’t recall the precise discussions that led to abandonment of new cases. Former Attorneys General Ed Meese, who left the department in 1988, and successor Dick Thornburgh did not respond to requests for comment, nor did Mueller….

Though hard numbers are elusive, Hasbrouck says with confidence “compliance with the address update requirement is and has been since 1980 essentially zero.”

A central insight of both Gandhian and anarchist political theory is that governments have power only to the extent that people are willing to carry out or comply with their orders. But few of the people pontificating lately about whether extending draft registration to women is “desirable” (from one or another perspective) have stopped to ask whether it is possible. So far as I know, no historian or scholar has made a study of draft registration since 1980. (If I’ve missed something, please send me a link or citation, or post it in the comments.) There’s been no GAO audit of the accuracy of the Selective Service database of registrants and their current addresses since 1982.

Despite the refusal of the Justice Department to prosecute nonregistrants, the Selective Service System continues to refer names of possible nonregistrants identified by automated data-matching to the Justice Department “for possible prosecution”. According to the latest Selective Service System Annual Report to Congress for Fiscal Year 2015 (page 16), “If a man fails to register or fails to provide evidence that he is exempt from the registration requirement after receiving Selective Service reminder and/or compliance mailing, his name is referred to the Department of Justice (DOJ) for possible investigation and prosecution for his failure to register… During FY 2015, 146,997 names and addresses of suspected violators were provided to the DOJ.” None of these nonregistrants were investigated or prosecuted, nor have any of the other millions of suspected draft registration resisters whose names have been referred by the SSS to the DOJ in the last thirty years.

If resistance rendered draft registration of men unenforceable, why would anyone think that young women will be more willing to sign up to kill or be killed on command than young men have been?

Resistance to any attempt to extend draft registration to women is inevitable, but people tend to (wrongly) discount the practical or political significance of silent resistance, despite its effectiveness. That’s a major reason why the ongoing resistance to draft registration by young men has been so little noticed or understood.

The political anthropologist James C. Scott analyzed this phenomenon in Domination and the Arts of Resistance (Yale University Press, 1990, Chapter 7):

Much of the active political life of subordinate groups has been ignored because it takes place at a level we rarely recognize as political. To emphasize the enormity of what has been, by and large, disregarded, I want to distinguish between the open, declared forms of resistance, which attract most attention, and the disguised, low-profile undeclared resistance….

For many of the least privileged minorities and marginalized poor, open political action will hardly capture the bulk of political action…. The luxury of relatively safe, open political opposition is rare… So long as we confine our conception of the political to activity that is openly declared we are driven to conclude that subordinate groups essentially lack a political life…. To do so is to miss the immense terrain that lies between quiescence and [open] revolt and that, for better or worse, is the political environment of subject classes….

Each of the forms of disguised resistance… is the silent partner of a loud form of public resistance.

And Scott said this in Two Cheers for Anarchism (Princeton University Press, 2012, Chapter 1):

Desertion is quite different from an open mutiny that directly challenges military commanders. It makes no public claims, it issues no manifestos, it is exit rather than voice. And yet, once the extent of desertion becomes known, it constrains the ambitions of commanders, who know they may not be able to count on their conscripts…. Quiet, anonymous,… lawbreaking and disobedience may well be the historically preferred mode of political action for… subaltern classes, for whom open defiance is too dangerous.

It’s past time for Congress to get real, end draft registration, and abolish the Selective Service System.

To make this happen, Congress and the public need to hear from young women who don’t plan to register for the draft. Otherwise they won’t think about the prospect of resistance by women to draft registration, or take it seriously. I’ll be happy to publish or link to “I Won’t Go” or “We Won’t Go” statements, anonymously or with names as the authors wish. If there are other things I can do to help young women prepare to resist draft registration, or to support their resistance, or to support the ongoing resistance by young men, please let me know.