“Any proposal that includes a compulsory element is a naïve fantasy unless it includes a credible enforcement plan and budget.”
[My testimony to the National Commission on Military, National, and Public Service, 25 April 2019.]
Compliance, noncompliance, and enforcement are the Achilles’ heel of Selective Service registration:
[West Coast mobilization against the draft and draft registration passing the main Post Office and draft registration site (today the 9th Circuit Court of Appeals courthouse) on 7th St. at Mission St. in San Francisco, 22 March 1980. Photo from “It’s About Times” newspaper, via Foundsf.org.]
[This front-page banner headline story in the Boston Globe, just as students were returning to colleges for the 1980-1981 school year after the initial mass registration weeks for men born in 1960 and 1961 in July and August of 1980, summed up the conclusion of the first independent national attempt to survey compliance with draft registration. It’s been all downhill for the Selective Service System ever since.]
The Selective Service System (SSS) claims that “compliance” with the draft registration law exceeds 90 percent. But what does that really mean? It turns out that the “compliance” reported by the SSS is the ratio of registrations on file to men of registration age (between their 18th and 26th birthdays). In other words, the SSS counts as “in compliance” everyone of registration age who has ever registered, even if they registered years late — after the age of prime eligibility for the draft, if there were to be a draft — and regardless of whether the address in the SSS database is current or was ever accurate.
The ratio of the number of registrations to the number of people required to register is also exaggerated because the SSS automatically registers all male draft-age applicants for driver’s licenses from some states. The SSS has no way to know which driver’s license applicants are actually required to register. Whether a draft-age individual is required to register depends on immigration and visa status as well as sex as assigned at birth, neither of which can be determined from driver’s license records. As a result, hundreds of thousands of draft-age male foreign students and foreign workers with H visa types, who are considered “temporary” non-immigrant U.S. residents even if they remain in the U.S. for years and have U.S. driver’s licenses, are registered and included in SSS registration counts even though they aren’t required to register and aren’t subject to the draft. Their inclusion reduces the utility of the registration database for an actual draft, but the SSS includes them both because it has no easy way to weed them out, and because this makes the “compliance” numbers appear higher.
The only purpose for the Selective Service System registration list is to deliver induction notices in the event of a draft. The only proper measure of compliance is, “For what percentage of would-be draftees does the SSS have a valid current postal mailing address, such that the government could prove to a Federal criminal jury, beyond a reasonable doubt, that an induction notice sent to that address was received by the intended recipient?” Although the SSS deliberately avoids researching this question, the spot data they occasionally release for this more relevant “compliance rate” is far too low for a draft to be politically salable, or enforceable:
Members of the National Commission on Military, National, and Public Service admitted this problem to Congress:
Our research confirmed that the system would face serious challenges in using the selective service registration database to generate numbers of qualified individuals to respond to induction notices.
[Steve Barney, former former General Counsel to the Senate Armed Services Committee and member of the National Commiission on Military, National, and Public Service, in response to written questions from Rep. Ro Khanna of the House Armed Services Committee following a hearing on 19 May 2021.]
Even the former Director of the Selective Service System who oversaw the start-up of the current registration system in 1980 (and who still thinks that at first, before addresses got out of date, it was working) says it’s time to throw in the towel and admit that draft registration has failed:
The current system of registration is ineffective and frankly less than useless. It does not provide a comprehensive nor an accurate database upon which to implement conscription…. It systematically lacks large segments of the eligible male population. And for those that are included, the currency of information contained is questionable.
[Testimony of Dr. Bernard Rostker, Director of the Selective Service System 1979-1981, to the National Commission on Military, National, and Public Service, 24 April 2019; Transcript, Video clip, written testimony.]
The failure of draft registration to which Dr. Rostker testified in 2019 occurred in exactly the manner that he had predicted in 1980. When Congress was debating the reinstatement of draft registration, Dr. Rostker pointed out that registrants’ addressed would quickly get out of date, and that no other Federal government database includes accurate current addresses:
[Dr. Bernard Rostker, Director of the Selective Service System, testimony to the Senate Appropriations Committee, 11 March 1980. ]
One of Dr. Rostker’s predecessors, Dr. Curtis Tarr, who had been Director of the Selective Service System in 1970-1972, made a similar prediction in his testimony to a hearing a hearing on Judiciary Implications of Draft Registration held in Madison, WI, on 14 April 1980 by the Subcommittee on Courts, Civil Liberties, and the Administration of the House Judiciary Committee. Dr. Tarr’s plane was delayed by a blizzard and he didn’t make it to Madison that day, but his prescient written testimony against trying to reinstate registration was entered into the record:
Enforcing a requirement to notify Selective Service of a changed address would be even more difficult than enforcing the duty to register…. I foresee the possibility of evasion by large numbers that that would overwhelm the agencies responsible for law enforcement and the judiciary.
[Written testimony of Dr. Curtis W. Tarr, Judiciary Implications of Draft Registration, Hearings before the the Subcommittee on Courts, Civil Liberties, and the Administration of Justice, Committee on the Judiciary, U.S. House of Representatives, Madison, WI, 14 April 1980.]
Today, the majority of those subject to draft registration register late, and almost none of them notify the SSS when they move.
Male U.S. residents are required to register with the SSS within 30 days of their 18th birthday, but few do. Most register only if and when they are required to register in order to be eligible for some Federal or state program, mainly Federal student loans or grants or (in some states, but not California or several other states) drivers licenses. In practice, there is no penalty for late registration, and no incentive for timely registration as long as you register before your 26th birthday.
Men between 18 and 26 are required to notify the SSS within 30 days of each change of address, but few do. Few young men even realize that they are supposed to do so. In an age of location-independent e-mail, cellphones, and online bill payment, what percentage of young adults bother to file a change of address notice with the Post Office — within 10 days — every time they move?
[Rep. Adam Smith, Chair of the House Armed Service Commitee, 19 May 2021. “Under the law you are required to basically let the government know where you are between the ages of 18 and 26, which I can assure you virtually nobody does. Virtually nobody? Absolutely nobody might be a better way to put it. I moved quite a bit between the ages of 18 and 26, and… I am absolutely certain that nobody told the government where I was living…. How are we going to find people?”]
The SSS attempts to update the addresses in its database by matching them with lists purchased from the Experian credit rating bureau and data brokerage. But those lists are neither complete, accurate, nor up to date. An internal SSS summary (prepared by the SSS Deputy Associate Director for Operations and released in response to a FOIA request) of “Significant Issues” identified in a 2018 induction exercise predicted that, “Almost 50% of inductees WILL NOT receive Reporting Orders…. Results will be massive Undeliverable/Returned to Sender”:
There has been no independent audit of compliance with draft registration since one by the General Accounting Office (GAO) in 1982, which resulted in a report entitled, with typical GAO understatement, “Failure Of Registrants To Report Address Changes Would Diminish Fairness Of Induction Processing”.
We estimate that about 20% to 40% of addresses in Selective Service files will be outdated for registrants who turn 20 in any given year…. At the end of 8 years, when registrants reach their last year of draft eligibility, the extent of outdated address could reach almost 75%. As a result of outdated addresses, many registrants would not receive induction notices.
[Failure Of Registrants To Report Address Changes Would Diminish Fairness Of Induction Processing, General Accounting Office report FPCD-82-45, September 24, 1982.]
In a 1996 report on Selective Service registration , the GAO didn’t try to audit registration compliance or accuracy, but noted the concern of the SSS that compliance would be lower in time of war or national crisis. According to the GAO, “SSS officials stated that unless the mass registration program can achieve high levels of compliance (at least 90 percent of the targeted population), the fairness and equity of the ensuing draft could be called into question.”
If people who didn’t register, or who moved without notifying the SSS, aren’t drafted, that could lead to both political and legal challenges to the fairness of the draft:
The list that they have I doubt could pass the legal definition of a complete and objective list, because it is structurally flawed and Selective Service knows it. It’s a list that I’m sure the courts would throw out immediately because it’s not accurate.
[Bernard Rostker, Director of the Selective Service System 1979-1981, in a podcast interview with Lillian Cunningham of the Washington Post, 4 December 2017.]
The GAO reported on Selective Service registration again in 2012, but it didn’t attempt to investigate or verify compliance. The 2012 GAO report did, however, reiterate the belief of SSS officials that at least 90% compliance with registration is required for “fairness and equity” of a draft, while registrations were received for only 69% of 18-year old men. The rest of those who registered did so later, often after their years of prime draft eligibility.
There’s been no test of a draft based on the current registrations of young men for several decades. In 2021, Congress directed the Department of Defense to conduct a comprehensive mobilization exercise which would “include the processes of the Selective Service System in preparation for induction of personnel into the armed forces under the Military Selective Service Act (50 U.S.C. 3801 et seq.), and submit to Congress a report on the results of this exercise.” The exercise was supposed to be completed by 30 September 2023 (the end of the 2023 Federal fiscal year), and an initial briefing submitted to Congress by 31 March 2024. But in April 2024, in response to one of my FOIA requests, the SSS told me that the Department of Defense had not yet even scheduled, much less conducted or reported on, the mobilization exercise ordered by Congress. Even if and when this exercise is conducted, it’s not clear if it will include any test of the accuracy of the SSS registration database or provable deliverability of induction notices.
In the past, when the SSS conducted “tests” of its ability to carry out a general draft, it assumed that all the test induction notices that weren’t returned by the Post Office were successfully delivered to the potential draftees. That’s absurd: in many cases, mail is still delivered to an old address even if the addressee has moved. That’s especially true if other people with the same last name still live there, as is likely to be the case for many young people who registered at their parents’ address, but who have since moved out. Letters addressed to former residents of houses and apartments shared by changing groups of young people are as likely to be delivered and thrown away as to be forwarded or returned to sender. “not returned to sender” does not mean “delivered to the intended recipient”.
According to an internal staff memo summarizing research conducted by the National Commission on Military, National, and Public Service:
The ability of SSS to execute a draft effectively based on its existing database and procedures has not been tested in recent decades. SSS Director Don Benton indicated that the SSS does not regularly update information for all registrants…. SSS Data Management Center (DMC) employees indicated that a recent test of registration accuracy showed that 96 percent of letters sent to registrants went unreturned — although it remains unclear which cohort was contacted for this test. Former Director of SSS Dr. Bernard Rostker indicates deep skepticism that the database is accurate at scale and across the entire range of eligible ages.
Memo from staff to the members of the National Commission on Military, National, and Public Service in preparation for July 2019 voting on NCMNPS recommendations; withheld by the NCMNPS but released by the National Archives in response to one of my FOIA requests after the expiration of the NCMNPS.]
The bottom line is that compliance is low (and will get lower, as discussed below). Most induction notices sent to the addresses in SSS records would wind up in the dead letter office, or would be delivered to registrants’ parents’ homes or former homes, or other former addresses, rather than to the intended draftees.
[Mike Keefe, Denver Post, 1982. “This is my final warning… either register for the draft or climb into the paddy wagon.”]
Most people who register with the the Selective Service System today do so because it is required (or the default) in some states when a draft-age man gets a drivers license. Without these state laws, draft registration would have completely collapsed in abject failure decades ago. But state laws linking drivers’ licenses to draft registration are far from universal.
As of 2021, states with no linkage between drivers licenses and Selective Service registration include California, Oregon, Alaska, Wyoming, Nebraska, Pennsylvania, New Jersey, Massachusetts, and Vermont. Together these states have more than 20% of the U.S. population. Some other U.S. states and territories allow you to register with Selective Service when you get a drivers license, either on an opt-in (Washington, Michigan, Iowa, Guam, Puerto Rico, etc.) or opt-out (New York, District of Columbia, etc.) basis, but don’t require Selective Service registration to get a drivers license.
As Dr. Rostker grumbled to the NCMNPS in 2019:
California does not share driver’s license [information with the Selective service System] — so, hey, move to California and you’re basically exempted from being drafted because — if you don’t want to go to college, if you don’t want get a government job and have aid the government’s never going to find you.
[Testimony of Dr. Bernard Rostker, Director of the Selective Service System 1979-1981, to the National Commission on Military, National, and Public Service, 24 April 2019.]
The percentage of young people who work for the Federal government, or expect to want to do so in the future, is small. And 99% of nonregistrants who appeal the denial of eligibility for Federal jobs are ruled eligible for those jobs after all , typically because they claim that their failure to register by age 26 wasn’t “knowing and willful”. So the “Solomon Amendment” in effect since the 1980s that conditions Federal employment on Selective Service registration has little effect on the overall registration compliance rate.
Another “Solomon Amendment” law previously made nonregistrants ineligible for Federal financial aid for higher education, but a bill signed into law on 27 December 2020 repealed the requirement to register with the SSS in order to be eligible for Federal student aid. Even as misleadingly calculated by the SSS, the already low rates of “compliance” with the draft registration requirement have declined further as these provisions of the FAFSA Simplification Act have been implemented:
The CY 2022 national registration rate for men aged 18 to 25 was 84 percent. This was a five percent decrease from CY 2021, largely driven by the loss of the requirement for a man to register with SSS to receive Federal student aid and the removal of the option to registration on the Free Application for Federal Student Aid (FAFSA) form, which are both outcomes of the passage of the FAFSA Simplification Act in 2020. Since this method of registration historically accounted for up to 20 percent of all annual registrations, SSS expects the national registration rate to further decrease.
[Selective Service System, Annual Report to Congress for Calendar Year 2022]
The questions about Selective Service registration status were removed from the FAFSA form starting with the 2023-2024 school year, but financial aid advisors and resources are only gradually being updated to reflect the change. The full effect of the FAFSA change on reduced compliance with draft registration will take several years.
Notwithstanding a few defeats in the lower courts, registration’s legal foundation has remained intact. Yet the success of the program is questionable. Perhaps as many as a million young men, for one reason or another, have failed to register. A small number have been prosecuted, even jailed, but the number of noinregistrants continues to grow. Unless a vigorous enforcement program is implemented soon, draft registration may evolve into a de facto voluntary program. Yet vigorous enforcement implies significant social, economic, and political costs. Would the costs be worth shouldering or is it more sensible to abandon draft registration?
[Selective Service Without a Draft, by James B. Jacobs and Dennis McNamara, Armed Forces & Society 10, no. 3, 1984]
Aside from the financial and other incentives discussed above, the Military Selective Service Act (MSSA) can be enforced only through Federal criminal prosecutions. The key difficulty for prosecutors, and the key obstacle to enforcement of the law, is that violations of the MSSA — refusal to register, failure to report a change of address, failure to report for induction when ordered to do so — has an element of knowledge and willfulness:
One who fails to register must “knowingly” do so before he is guilty of an offense.
In general, “Ignorance of the law is no defense”. But where the law itself includes an explicit element of knowledge and wilfulness, as the MSSA does, ignorance of the law is a defense. More than that, the burden of proving knowledge and willfulness is on the government.
Most people who haven’t registered with the SSS haven’t actually committed any crime, because they lack the requisite specific intent. Actual knowledge of the requirement or order alleged to have been violated will be the most difficult element to prove if a defendant has not incriminated themselves and exercises their right to remain silent.
Knowledge and willfulness must be charged in the indictment, as in this typical example, and proven at trial:
It’s not enough to prove to a jury that someone didn’t do what they were supposed to do according to the MSSA, the Presidential proclamation ordering certain men to register at certain times, or an order for a specific draftee to report for induction at a certain time and place. The government has to prove, beyond a reasonable doubt, that the specific defendant had personal knowledge of the order:
The government presented no evidence that defendant ever received actual notice of his obligation to register for military draft but merely presented evidence describing general dissemination of information about military registration requirements…. He appeals, contending that the evidence adduced by the Government did not prove that he knowingly failed to register. We agree and reverse the conviction.
The evidence as introduced by the Government at the trial disclosed that Klotz did not register with the Selective Service System for more than two years following his eighteenth birthday…. In addition to these facts, the Government introduced testimony describing the general dissemination of information about registration requirements…. Klotz did not testify, and the Government introduced no evidence that Klotz had ever received actual notice of his obligation to register for the military draft…
It is a well-settled principle that in prosecuting suits… for knowingly failing or neglecting to perform a duty under the Selective Service Act the Government must prove a culpably criminal intent. The determination of defendant’s intent here rested on a presumption, and not on proof of the essential fact of knowledge necessary to sustain the conviction. Accordingly,… we must set aside the conviction.
[U.S. v. Mark David Albert Klotz, 500 F.2d 580 (8th Cir. 1974)]
This isn’t an easy burden for the government to meet, especially since most registration-age men don’t know about the registration requirement, and many registrants wouldn’t know if an induction notice was sent to the former address they gave when they registered years earlier (or that was passed on from a drivers license application without their even realizing that they had been registered).
In practice, enforcing a law with a knowledge and willfulness element requires the government either to obtain a confession or other public statement admitting knowledge of the law. This is why all but one of the show trials in the 1980s were of public nonregistrants whose public statements of resistance could be used to prove that they knew that what they were doing was illegal:
Apparently the moral of the government’s policy is: if you want to evade the draft registration law,
do nothing, say nothing, and you will not be prosecuted. Only those with the courage and candor
to write the government refusing to register will be punished.”U.S. v. Eklund, 733 F.2d 1287, 8th Circuit, 1984, en banc, Lay, Chief Judge, dissenting]
Even in these cases of self-reported and/or self-publicized nonregistration, the government was sufficiently unsure of its ability to prove knowledge and willfulness that prosecutors were directed to have the FBI track down each suspected nonregistrant, interview him to try to obtain a confession of knowledge of the law, and give him another chance to register without penalty, after receiving this in-person notice, before he would be indicted:
A July 9, 1982, communication to United States Attorneys from the Justice Department “requires that United States Attorneys notify non-registrants by registered mail that, unless they register within a specified time, prosecutions will be considered. In most instances we anticipate that Federal Bureau of Investigation agents will also interview alleged non-registrants prior to the initiation of prosecutions. Nevertheless, if a non-registrant registers prior to indictment, no further prosecutive action will be taken. The policy is designed to ensure that the refusal to register is willful.”
[Memo from Dept. of Justice headquarters to all U.S. Attorneys, quoted in the U.S. District Court decision in U.S. v. Gary John Eklund, 551 F. Supp. 964, S.D. Iowa 1982.]
Personal delivery of orders to register, or induction orders, doesn’t scale. It’s prohibitively labor-intensive to use as the basis for more than a handful of show trial prosecutions, and even in those cases it doesn’t work if prospective defendants don’t talk to the FBI.
Even with respect to those the government had selected as the “most vocal” nonregistrants, proving actual personal knowledge of the requirement to register wasn’t a slam dunk for Federal prosecutors.
Most public nonregistrants conceded the facts alleged against them (including knowledge and willfulness), and contested the charges, if they contested them at all, on other legal grounds and/or in the court of public opinion. Only one of the 20 nonregistrants inducted put the government to its burden of proving that he hadn’t presented himself for registration (the procedures were unreliable, and some registration forms never made it from Post Offices where registration was conducted into the SSS registration database) and that he had done so knowingly and wilfully. Gillam was convicted, but the original jury trial verdict and prison sentence in his case were overturned on appeal because the trial judge had failed to adequately instruct the jury that the government had to prove the defendant knew he was legally required to register. Gillam spent five months in prison before his appeal was decided. After his initial conviction was overturned, he agreed to plead guilty in exchange for a sentence of the time he had already served. So we still don’t know what a properly instructed jury would have found.
If nobody registered (or could be prosecuted for not having registered) unless and until they got a personal visit from the FBI to tell them to register, the system would quickly break down — and it did. In May 2016, Selective Service officials finally admitted publicly, in interviews with U.S. News & World Report, what had long been obvious: The Department of Justice abandoned enforcement of draft registration in 1988. Quiet but sufficiently widespread noncompliance made registration unenforceable, and made the registration list all but useless for a fair, inclusive, or enforceable draft.
Despite the refusal of the Department of Justice to waste time trying to prosecute nonregistrants, the Selective Service System continues to send out millions of letters threatening recipients with prosecution and to refer millions of names refer names of possible nonregistrants identified by automated data-matching to the DOJ “for possible prosecution”. In August 2022, in response to one of one of my FOIA requests, the SSS reported that it referred the following numbers of names of “suspected” nonregistrants to the Department of Justice each year since 2010:
These threats are empty, however. None of these suspected nonregistrants were investigated or prosecuted, or could be prosecuted without evidence of actual knowledge and criminal intent. 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 been investigated or prosecuted. The DOJ has no idea what it would do if it were called upon to try to enforce the registration requirment.
[Response of Maj. Genl. Joseph Heck, Chair of the National Commission on Military, National, and Public Service, to a question from Rep. Ro Khanna, House Armed Services Committee, 19 May 2021. “Mr. KHANNA: Does the NCMNPS proposal include any plan or budget for enforcing an expanded Selective Service registration requirement? Dr. HECK: The Commission did not include any plan or budget for enforcing an expanded Selective Service registration requirement in its report. Mr. KHANNA. Did the NCMNPS consult the Department of Justice … concerning whether, how, and/or at what cost the DOJ is prepared to enforce an expanded registration requirement, or whether such an enforcement plan would be more effective than the registration enforcement program the DOJ abandoned in 1988? Dr. HECK. The Commission requested such information from the DOJ, however no information was provided.”]
In the event of an actual draft, it won’t be enough for the government to deliver an induction notice. In order to prosecute someone who doesn’t report for induction, the government will have to prove that a person (A) received an induction notice, and (B) believed that it was legitimate. Otherwise they would not have satisfied the “knowledge and wilfulness” element of the crime. That’s why the SSS would need to send induction notices by certified mail or some other form of delivery that has to be signed for as proof of receipt by the signer:
Ms. Debra Wada [Vice-Chair of the National Commission on Military, National, and Public Service for Selective Service issues; former Assistant Secretary of thh Army for Manpower & Reserve Affairs; more recently a member of the Biden Presidential transition team]:
Mr. Hasbrouck, yesterday the [current] director of Selective Service testified that they also collect now phone numbers and email addresses. So,the question or the concern that you had about getting the right mailing address, is that sort of alleviated in some way or does that not have any impact at all?
Mr. Edward Hasbrouck [Resisters.info]:
No, really it would not have any meaningful impact at all.
The only use of the registration database is to deliver an induction notice.
The criteria of success is, when you send out a certified letter to that address, either does the person report for induction or do you get back a signature on the return receipt matching a registration record that provides sufficient evidence to prosecute the person if they don’t show up for induction.
I would not think that you would find a U.S. attorney who would be prepared to go into court and try and convince a jury beyond reasonable doubt that somebody was guilty of willful refusal to report for induction on the basis of, “Well, we sent him a text message,” or, “We made a phone call,” or, “We sent him an email.”
In the event of an actual draft, you would have millions of hoax and fraud and scam and identity theft fake induction notices going out by email and text messages and all of those other means, and people presumably being told “the only ones [induction notices] that are meaningful are the certified letters.”
And on the other side, the first message people would get would be, “If you don’t want to be drafted, don’t sign for any certified letters from Selective Service. Wait until they send the FBI door to door to round you up.” Which is why you would end up having to use FBI agents as press gangs, which is exactly what proved so costly back in the 1980s that the Department of Justice in 1988 decided that this was a waste of effort, too resource intensive, and that they weren’t going to even try to investigate or prosecute any of these cases anymore.
So phone numbers and email addresses really don’t advance the actual purpose of this database. It’s just window dressing.
Ms. Debra Wada:
Thank you very much. I yield back.
The prospect of fake induction orders, which would make it difficult for the government to prove that a particular registrant not only received but believed that an induction order was bona fide and not a hoax or scam, is not a hypothetical. Seven months after I raised this likelihood in this testimony to the NCMNPS, it happened: In January 2020, fears of a possible war with Iran prompted a wave of fake induction notices sent by e-mail and text messaging. The SSS.gov Web site reportedly crashed under the spike of visits by registrants trying to verify whether the messages they had received were genuine.
Many people assume that the Federal government knows who every U.S. resident (even the undocumented ones) is and where they live, and could “easily” use existing Federal databases to identify all the 18-26 year olds, conduct a draft lottery, and promptly, reliably, and provably deliver induction notices to those selected.
It’s not that easy, though. Unlike in some other countries where you have to register your new address with the police whenever you move, People in the U.S. are not generally required to report to any government agency when you move. You are likely to report some address to the IRS once a year with your tax return, but that may be months after you have moved, and may not be the fastest address at which to reach you. If you file your return and pay your taxes and/or receive your refund electronically and not by mail, you may not bother to update your postal address at all.
Here’s what the National Commission on Military, National, and Public Service found when their staff researched this option:
“The integration of one or more state/federal databases for a post-mobilization registration system would be an inherently difficult integration challenge—particularly as the database compilation would be using existing databases and not fielding a new data collection effort. As Social Security Administration database experts asserted in an interview with staff, integrating data requires a high degree of synchronization, regression testing, and performance tuning. he Social Security Administration and the Internal Revenue Service (IRS) maintain the most prominent federal databases to use as a source of information for passive, post-mobilization registration. While databases maintained by both agencies are fairly robust in their identification of individuals, their ability to contact and track individuals is not currently a priority.”
[Memo from staff to the members of the National Commission on Military, National, and Public Service in preparation for July 2019 voting on NCMNPS recommendations; withheld by the NCMNPS but released by the National Archives in response to one of my FOIA requests after the expiration of the NCMNPS.]
This was also discussed during the NCMNPS hearings. Without having seen the memo quoted above, here’s what I said:
Dr. Joseph Heck [Brigadier General, U.S. Army Reserve; former member of the U.S. Congress (R-NV); Chair of the National Commission on Military, National, and Public Service:
If there was a system that would provide for kind of a passive, automatic registration from various existing state and federal databases that did not include peacetime civil or criminal penalties be preferable to the current system? So in the event of a national mobilization need, data would be collected from already available federal databases to send induction notices. There would be no active registration with penalties for failure to register. Mr. Hasbrouck?
Mr. Edward Hasbrouck [Resisters.info]:
Anything that eliminated the penalties being imposed on those who don’t support the current endless wars would be positive. However, I think it is likely that such a [“passive registration”] system would cause military planners to have even more false complacency about the idea that a draft would be available. You know, we do not live in a country — other than for people who are under court supervision because they’ve been convicted of a crime or men between 18 and 26, you don’t have to report to the police when you move in this country. There is no “certain” database, certainly none with the accuracy that if you sent out a notice to that address, you could be confident enough to base a criminal prosecution on somebody not responding to that notice. So that kind of [passive] registration would be no more capable of actually supporting a draft than the present system, but military planners would still think they’ve got a draft in their back pocket. Much better to start now reorienting and reigning in military planning to fight only those wars that the people are willing to fight.
The government would rather not depend on our voluntary compliance with registration and a draft. But it has no real choice.
Regardless of whether anyone “wants” a draft, evidence ignored by NCMNPS suggests that a draft may not be feasible or enforceable in the face of current and likely future noncompliance. Like it or not, realism demands that you recognize the constraints placed on government action by popular (un)willingness to comply with government demands.
[Joint letter from opponents of Selective Service registration to the leadership of the House Armed Services Committee and it Military Personnel Subcommittee, 11 March 2021]
In my testimony to the NCMNPS, I told the members of the Commission:
The Selective Service System has told this Commission that it thinks “a modern day draft, if marketed carefully and cleverly,” could be successful. But that’s a pipe dream. Enforcement is more than a marketing problem. Any proposal that includes a compulsory element is a naïve fantasy unless it includes a credible enforcement plan and budget which has been endorsed by the Department of Justice and subjected to public and expert scrutiny.
The report from the Department of Justice to the NCMNPS in December 2017, which was required by the law establishing the NCMNPS, notes that hundreds of thousands of names of suspected nonregistrants are referred by the SSS to the DOJ each year, but says not a word about what, if anything (in fact, nothing) is done with them. Nor does the DOJ report say anything about past or present enforcement efforts or future enforcement plans. The report submitted to the NCMNPS by the Department of Defense at the same time in 2017 made the emptiness of threats of prosecution clear:
Annually, the SSS forwards to DoJ a list of roughly 630,000 names and addresses of men aged 19-30, who have either evaded registration or refused to register. In practice, there have been no criminal prosecutions for failure to register since January 1986.
[Office of the Under Secretary of Defense for Personnel and Readiness, Report on the Purpose and Utility of a Registration System for Military Selective Service, 17 March 2017, released in response to one of my FOIA requests to the NCMNPS.]
Although the DOJ has sole responsibility for enforcement of the Military Selective Service Act, including the registration requirement, the NCMNPS did nothing to question these omissions from the DOJ report. NCMNPS responses to my FOIA requests revealed that neither the NCNPS nor any of its staff ever met with anyone from the DOJ. NCMNPS staff convened regular meetings of an inter-agency working group that included 25 different Federal agencies and departments — but didn’t include anyone from the DOJ in any of those meetings.
No witnesses from the DOJ were called upon to testify at any of the NCMNPS hearings, or participated in any of the public or private meetings or events held by the NCMNPS. While planning the hearing at which I was invited to testify, NCNPS staff contacted the DOJ, but were unable to find anyone at the DOJ who knew anything about enforcement or contingency plans related to draft registration — presumably because there are none:
Dr. Rough [Director of Research] noted that Ed Hasbrouck will be a panelist and will speak to issues regarding the Department of Justice (DOJ) and enforcement of draft registration requirements. Mr. Lekas [General Counsel] said his team had reached out to the appropriate office within DOJ and was informed that they do not set the policy for enforcing draft registration and has been unable to locate any current guidance from DOJ that does address this issue.
[Minutes of meeting of the National Commission on Military, National, and Public Service, 27 March 2019, released in response to one of my FOIA requests]
The only witnesses to mention enforcement in our testimony to the NCMNPS were former SSS Director Bernard Rostker and myself — the only two witnesses who had actually been involved, on opposite sides, with the (unsuccessful) attempt to enforce the Selective Service registration requirement in the 1980s. Both Rostker and I testified that the current registration program is not working and should be abandoned.
Despite this testimony, there was no mention of compliance, noncompliance, or enforcement, much less any enforcement plan or budget, in the final report of the NCMNPS. Nor was there any attempt to assess likely compliance by young women, if the registration requirement is extended to young women as well as young men.
Both the DOJ and the NCMNPS appear to have adopted a “See no evil, hear no evil, speak no evil” attitude toward compliance, noncompliance, and enforcement. I assume that the members of the NCMNPS realized that even the slightest inquiry into these issues would lead inevitably to the embarrassing conclusion that the draft registration emperor has no enforcement clothes, that a large proportion of draft-age men are ignoring the registration requirement and can do so without fear of prosecution, and that many young women would do likewise.
Since enforcement of the criminal penalties for nonregistration was abandoned in the late 1980s, the Selective Service System has depended on state laws in many states (although not California or some others) that require Selective Service registration as a condition for issuance of drivers licenses. The problems this will cause for any attempt to expand draft registration to women were raised by Edward Allard, former Director of Operations for the Selective Service System and a member of the National Commission on Military, National, and Public Service, during a closed-door NCMNPS meeting in April 2019:
Mr. Allard said he completely disagreed with Mr. Benton [Director of the Selective Service System during the Trump Administration] about state drivers’ license legislation. He said only a handful of states have laws that are gender neutral and it will be a challenging process to change those laws if registration is required of all Americans [regardless of gender]. Many of those laws, he noted, have been in place for a long time and any changes to them could yield entirely different results.
In other words, hawkish (but also sexist) state legislators who were happy to link drivers licenses for young men to draft registration may not be so willing to amend those laws to make the same linkage for women.
The same concern had been raised during a field visit by members of the NCMNPS to the SSS Data Management Center (Great Lakes, IL) in June 2018. One staff member at the Data Management Center “was concerned that… the state DMVs [might] refuse to share information — whether because their state laws are not changed to include women, or they choose not to participate [in data sharing with the SSS] following an expansion of the registration pool” to include women.
Given the dependence of such limited compliance as the SSS now obtains on these state laws, this means that Congress doesn’t actually have the power to expand draft registration to women without state collaboration. If Congress votes to expand registration to women, states will be able to effectively opt out for their residents by refusing to expand their state drivers license linkage laws to women, or by repealing them entirely. Congressional action on women and draft registration will trigger dozens of divisive state legislative debates that will inevitably go on for years.
Since the NCMNPS didn’t ask these questions or consider these issues, it’s critical for Congress, before acting on the NCMNPS recommendations or trying to expand draft registration to women, to hold full and fair hearings that hear from critics as well as defenders of the Selective Service System and Selective Service registration; that specifically consider the feasibility and enforceability of continued or expanded Selective Service registration; and at which representatives of the Department of Justice are called to testify as to whether and if so how and at what cost they believe that the Military Selective Service Act could be enforced.
This page published or republished here 27 December 2020; most recently modified 27 April 2024. This site is maintained by Edward Hasbrouck. Corrections, contributions (articles, graphics, photos, videos, links, etc.), and feedback are welcomed.
