Too Selective

Judge challenges draft sign-up

While nearly 9 million young men have registered for the draft as required by the law that took effect on July 21, 1980, roughly 470,000 have neglected to do so. This has created a dilemma for the Justice Department. The cost of prose cuting such a multitude would prove exorbitant. But failure to take action in a systematic way leaves the Government open to the charge that it may be acting in an unconstitutional manner when selecting those it does prosecute. Last week a federal judge in California threw out the Government's case against one non-registrant and raised troubling legal questions about the entire Selective Service registration law as well as its enforcement.

Judge Terry Hatter in Los Angeles cited several reasons for dismissing charges against David Alan Wayte, 21, a former Yale philosophy student from Pasadena, Calif., who had written to President Reagan explaining why he would refuse to register. The judge's first reason was a technicality, but a sweeping one: President Jimmy Carter, ruled the judge, waited only 21 days instead of the required 30 to start the program after the new regulations were printed in the Federal Register. If this ruling is sustained on appeal, the draft registration might have to be initiated all over again, requiring those who have already signed up to do so once more.

Hatter also dismissed the case on the grounds that Wayte had been selected for prosecution because he had so openly opposed the registration law. Noting that all the men indicted for non registration as of last week had publicly identified themselves as draft resisters or had been described as such by acquaintances, Hatter said that Wayte was being punished for exercising his constitutional right of free speech. Finally, Hatter said, both the White House and the Justice Department had failed to produce documents and testimony demanded by the defense that would reveal just how the indicted men had been selected.

The Justice Department contended that the dismissal will affect only Wayte's case and that it will promptly appeal the ruling. But Harvard Law School Professor Laurence Tribe, a constitutional expert, sees both the Carter waiting-period violation and the selective-prosecution issue as serious threats to the registration law. "They were picking people who had visibly distinguished themselves by their political views," Tribe noted. "This is a classic clash between the Government's interest in controlling a movement and First Amendment rights."

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