No Draft as Discipline

During the past three years, several hundred young men have been drafted in clear retaliation for turning in their draft cards to protest the Viet Nam War. Last week the Supreme Court delivered the latest decision in a series that has clipped the power of the Selective Service System to use the draft as a disciplinary weapon. Defying the draft law is still a felony punishable by up to five years in prison and a $10,000 fine. What the court has now outlawed is a maze of additional "delinquency" procedures that have been used since World War I to enforce the draft law.

The procedures were often used to punish a wide variety of infractions --failing to report a change in address or marital status, for example. Delinquents faced immediate induction. When the war protests began, Selective Service Director Lewis Hershey (who will retire Feb. 16) reminded draft boards of their power to induct delinquents who failed to carry their draft cards. Were such procedures legal?

No Authorization. The Supreme Court began saying no a year ago when it ruled that James Oestereich of Cheyenne, Wyo., could not be deprived of his statutory exemption as a divinity student just because he turned in his draft card. Two weeks ago, the court voided the speed-up induction of another protester, David Gutknecht of Gaylord, Minn., and outlawed all existing delinquency rules on the ground that Congress never intended to grant draft boards such "broad, roving authority." Last week the court applied its doctrine to the broad category of deferments. That case involved Timothy Breen, a student at Boston's Berklee School of Music whose Connecticut draft board took away his 2-S (student) status after he handed his draft card to a minister during a protest service in 1967.

Previously, young men who defied the draft and wanted a judicial trial of their claims were left with an unpleasant choice. They could refuse induction and hope to win the ensuing criminal prosecution, or enter the service and then go through the slow process of seeking a writ of habeas corpus. Now the Oestereich and Breen decisions establish that anyone whose draft board is guilty of a "clear departure from its statutory mandate" can ask federal courts to review his case before he faces induction.

The Justice Department will have to handle those cases--and it fears a flood of litigation. Last week one top Justice official fretted that U.S. attorneys may be forced to choose between prosecuting minor violations and permitting draft evasion. "We're afraid that the people counseling antiwar protesters may urge a massive refusal to obey the regulations," he said. "If that happens, they could so clog up the courts that the entire system could break down."

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