Friday, 11 December 2015
Extend draft registration to women -- or end it?
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 in 2013 by a U.S. District Court judge in Los Angeles who found that (1) the controversy was not yet "ripe" for decision and (2) the plaintiffs 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 immediately 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's a named plaintiff, who says he registered, and an organizational plaintiff. But the plaintiffs argued on appeal 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 (although standing wasn't raised as an issue before the Supreme Court in that case). Perhaps more importantly, the plaintiffs' counsel argued very persuasively to the 9th Circuit panel of judges 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 shortly after 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, which was repeated as the headline on issue #3 of Resistance News, 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.] By the end of 1981, the Selective Service System admitted that close to a million of the young men who were supposed to sign up during the initial mass registration weeks had not done so..
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 -- or to enforce induction orders.
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. "I wouldn't mind the privilege of being among the first women to burn their draft cards", feminist poet, journalist, and activist Karen Lindsey said at an anti-draft rally in Boston in 1979 or 1980, before Congress decided to limit draft registration to men. (Her speech was reprinted as "Women and the Draft" in Reweaving the Web of Life: Feminism and Nonviolence, New Society Publishers, 1982. The anthology attributes this to 15 September 1979, but I believe it was 2 February 1980.)
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. As has been the case in the past, 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 dictatorships in Yemen and Bahrain (in both of which the US intervened and/or backed Saudi intervention to put down "Arab Spring" movements for democracy), 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 both Democrats and Republicans. 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.
[More about the draft, draft registration, and draft resistance at Resisters.info.]
[This article has been reprinted by permission and with variations by the Committee Opposed to Militarism and the Draft (COMD), the San Diego Free Press, the American Friends Service Committee (AFSC). and elsewhere.]
Posted by Edward on Friday, 11 December 2015, 16:52 ( 4:52 PM)
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After 35 years, and no draft, you'd think they'd just let it fade. They said they needed to be ready, but they've never called a draft, despite all the wars. What war are they expecting that they need registration to speed things up?
I was at the Survival Gathering in South Dakota when the law went into effect. I remember the women going to the post office, trying to register. "Prove I'm not a man", said one woman after trying to register.
But I thought there were some groups who actually thought women should be included. They saw it as discrimination, rather than a tactic to stop registration.
As a fellow draft registration convicted felon, I look forward to having to find inclusive language for my "fellow" female resisters, or much better yet, see an end to draft registration altogether.
I have lived to see a cycle of history where President Carter started draft registration in response to the Soviet invasion of Afghanistan -- where Osama bin Laden was a U.S. trained and funded "freedom fighter" -- to a failed U.S. occupation of Afghanistan where bin Laden became the devil incarnate.
Ensuing reckless militarism has spawned new generations of terrorists armed mostly with U.S. weaponry flooded into conflict zones.
I feel more than vindicated by history in boldly opposing such self-defeating militarism.
May we learn from history and the deepest callings of our hearts.
"Including Women Is Not The Right Next Step For Selective Service" (by Carl Forsling, Task & Purpose, 5 January 2016):
"The Selective Service system is an antiquated relic of a bygone era and should be eliminated for all Americans....
Another thing this gives the opportunity to fix is maintaining the dubious fantasy that the U.S. will ever return to a draft. Rather than double down on the Selective Service mistake by including women, let"s use this opportunity to stop lying to ourselves."
Any proposals for legislation will originate in Congress, the White House, or the Pentagon, not with the Selective Service System. But in this interview on 21 January 2016, the director of the SSS said he had been told that Congress could hold hearings as early as February 2016 on whether to amend the Military Selective Service Act to require women to register:
"Top U.S. generals: Women should have to register for draft" (by Patricia Zengerle, Reuters, 2 February 2016):
"I think that all eligible and qualified men and women should register for the draft," General Robert Neller, the commandant of the Marine Corps, told a Senate Armed Services Committee hearing on women in combat.
General Mark Milley, the Army chief of staff, also backed registration for women, although two other witnesses, Navy Secretary Ray Mabus and Acting Army Secretary Patrick Murphy, said only that there should be a discussion of legislation requiring women to register for the Selective Service.
It was the first time Neller and Milley had publicly backed requiring women to register for the draft. They spoke in response to a question from Democratic Senator Claire McCaskill, who said she also believes women should register.
The White House said the comments did not reflect a policy change. "I don't know how seriously that is being considered," press secretary Josh Earnest said.
Hlllary Clinton on women and draft registration (CNN Democratic Presidential Town Hall, Derry, NH, 4 February 2016):
ANDERSON COOPER: ... Yesterday on Capitol Hill the Senate Armed Services Committee, the Commander of the Marine Corps said that he thinks, and I quote, all eligible and qualified men and women should register for the draft, talking about Selective Service. Do you think women should also have to register for Selective Service, like men?
HILLARY CLINTON:... I, I have to think about whether I think it's necessary to go as far as our military officers are recommending. You know, from my perspective, the all-volunteer military has worked, and we should not do anything that undermines it because it has provided a solid core of people who are willing to serve our country. The idea of having everybody register concerns me a little bit unless we have a better idea of where that's going to come out.... I have a hard time imagining the kind of national emergency that would require the use of the Selective Service system. So I just have to be better informed about why they're making this recommendation.
H.R.4478 – To amend the Military Selective Service Act to extend the registration and conscription requirements of the Selective Service System, currently applicable only to men between the ages of 18 and 26, to women between those ages to reflect the opening of Combat Arms Military Occupational Specialties to women (introduced 4 February 2016):
"Mike Coffman, Jared Polis want to end the military draft" (by Mark K. Mathews, Denver Post, 10 February 2016):
"The process the Pentagon uses to draft young men for war would be eliminated under a bill being introduced Thursday by several House lawmakers, including Colorado congressmen Mike Coffman and Jared Polis.
Their legislation would abolish the Selective Service System — which has gone unused for a draft since 1973 — and it could save taxpayers as much as $23 million annually. It also would render moot the recent question of whether women should be drafted....
The bill is bipartisan. Its sponsors include Democrats DeFazio and Polis, and Republicans Coffman and Dana Rohrabacher of California."
"Why Mike Lee Wants to Keep Women Out of the Draft" (by Natalie Johnson, The Daily Signal, 10 February 2016):
"Sen. Mike Lee, R-Utah, plans to introduce a bill that would prohibit women from being registered for a possible draft requiring military service.
Current law exempts women from registering with the Selective Service....
Lee’s bill would reiterate that only men aged 18 to 25 are required to enroll.... He plans to drop the legislation Feb. 22, his office confirmed Wednesday to The Daily Signal.
'We simply can’t trust this president or the courts to honor the law and protect our daughters,' Lee said in a statement to The Daily Signal. 'We need new legislation making clear that if the United States is going to change this policy, Congress must be the one to do it.'"
"H.R.4523 - To repeal the Military Selective Service Act, and thereby terminate the registration requirements of such Act and eliminate civilian local boards, civilian appeal boards, and similar local agencies of the Selective Service System" (introduced 10 February 2016):
"End, Don't Extend, the Draft" (by Sheldon Richman, Reason, 11 February 2016):
"Some misguided people will argue that if men must register, then fairness dictates that women must register too. It's an odd notion of fairness or justice, however. Compulsory draft registration is unfair because it violates young people's rights. Therefore, extending the unfairness cannot be fair. The only fair measure would be to abolish registration and never draft anyone again."
"Rubio and Cruz to Co-Sponsor Legislation to Leave Draft Changes to Congress" (by Elaina Plott, National Review, 11 February 2016):
"Spokespeople for Cruz and Rubio confirm that both presidential candidates will cosponsor Lee’s legislation when it is introduced....
The bill, which Lee had originally intended to drop Thursday, will now be rolled out closer to February 23, when Congress returns from a week of recess."
"Coffman defends bill to end draft registration" (by Peter Jones, Villager Newspapers, 17 February 2016):
"To hear U.S. Rep. Mike Coffman tell it, Congress essentially has two options when it comes to the future of mandatory draft registration—either start requiring women to register or end the practice altogether — and Coffman stands on the side of the latter....
Last week, he introduced a bipartisan bill with Rep. Jared Polis, D-Boulder, and other congressional supporters to abolish the Selective Service System, the federal agency that has coordinated draft registration since President Carter reinstituted it in 1980."
"Just Say No to Draft Registration for Women – and Men" (by Thomas Knapp, Antiwar.com, 15 February 15, 2016):
"Testifying before the US Senate’s Armed Services Committee in early February, Generals Mark A. Milley (the US Army’s chief of staff) and Robert B. Neller (commandant of the US Marine Corps) endorsed extending mandatory Selective Service registration to women. Because, you know, equality.
I have a better idea. It’s time to end draft registration for everyone. Because, you know, freedom."
"10 Reasons Why Ending the Draft Helps End War" (by David Swanson, Let's Try Democracy, 18 February 15, 2016):
"A new bill in Congress would abolish the draft, and a petition in support of it has gained a good deal of traction..."
"Should women be drafted? GOP spars over issue ahead of South Carolina vote" (CNN, 19 February 2016):
"Ahead of Saturday’s vote in military-focused South Carolina, Republican presidential candidates are clashing over whether women should be required to register for the draft.... The issue has split the already fractious GOP field.
At a rally in South Carolina Friday, Texas Sen. Ted Cruz slammed three of his Republican opponents who have backed registering women for the draft. He charged that they were 'so addled by political correctness that they think we should put our little girls on the front line. That’s crazy.'
When the candidates were asked at Saturday’s Republican debate if the Selective Service -- the registry that a military draft would draw from -- should include women, Florida Sen. Marco Rubio, former Florida Gov. Jeb Bush and New Jersey Gov. Chris Christie indicated that they did. Christie has since dropped out."
On Friday, 19 February 2016, the 9th Circuit Court of Appeals reversed the decision of the U.S. District Court in Los Angeles that had dismissed the complaint in "National Coalition for Men v. Selective Service System".
The Court of Appeals reinstated the complaint, and remanded the case to the U.S. District Court for consideration of the other issues in the case.
The next procedural step could be more written briefing on these issues, or a written scheduling order form the District Court, or an in-person or telephone "status conference" in Los Angeles, any of which could occur in a couple of weeks to a couple of months.
Opinion by the 9th Circuit Court of Appeals:
Press release from the National Coalition for Men:
The reinstatement of the case prompts me to consider approaches to discussion which rely on the equality issue.
We can acknowledge that the inequality of current registration is a serious human rights violation, AND THEN carry the human rights argument further by suggesting that the resolution of the inequality most consistent with human rights is to free those now under the threat and compulsion of required registration rather than impose the threat and compulsion on those not now under it.
The above is in addition to the peace arguments about greater likelihood of warfare if more are conditioned to obedience and if militarization is
further enshrined in law and policy.
"Women and Draft Cards: Feel the Burn" (by Gene Keyes, Daily Kos, 15 Feb. 2016):
"Now that there is talk of registering women for the draft, I say it is time for a mass draft card burning, men and women alike. Let women make and burn their own draft cards, before this ugly idea of unisex conscription takes hold; this ugly perversion of gender equality. Let’s stamp out the draft card law once and for all, and for all sexes...."
"Experimental barbarism: Why drafting women is wrong" (by Andrew T. Walker, Ethics and Religious Liberty Commission, Southern Baptist Convention, 8 February 2016)
"A military draft of women ... isn't just a military proposal; it's about an entire worldview built on the bankrupt ideology of egalitarianism.... Policy-makers are asking men to comply before a culture of emasculation by surrendering their innate gifting and their innate calling."
Worth reading in its entirety as a detailed articulation of the anti-feminist case against requiring women to register for the draft.
"S.2600 - A bill to amend the Military Selective Service Act to provide that any modification to the duty to register for purposes of the Military Selective Service Act may be made only through an Act of Congress, and for other purposes."
Sponsored by Sen. Mike Lee (R-UT), initial co-sponors Initial co-sponsors include Senators and Presidential candidates Cruz and Rubio.
S. 2600 would prohibit the President from ordering women to register for the draft, and deprive Federal courts of jurisdiction over any Constitutional or other challenge to the statutory provisions defining who is, and who is not, required to register.
It's not clear that in practice this bill would have any impact.
The Military Selective Service Act already explicitly limits the authority of the President to order registration to men, so that portion of this bill appears to be redundant. The jurisdiction-stripping provision is probably unconstitutional.
"Draft Rosie" (syndicated column by Cokie Roberts and Steven V. Roberts, 23 March 2016):
"Young women turning 18 in this country, just like young men, should register for the draft.... Women seeking equality in the military -- or anyplace else -- should... shout, 'Draft me!' Only then will the men see them as true equals."
"Clinton, Sanders respond to questions" (by Annysa Johnson, Milwaukee Journal Sentinel, 1 April 2016):
"Q: Today's military is an all-volunteer force that relies heavily on reservists.... Do you believe our troop strength is sufficient... and if necessary, would you reinstate the draft to accomplish your goals?
"Clinton: I am committed to sustaining and strengthening our all-volunteer force, which has protected our national security interests for the past 42 years....
"Sanders: The all volunteer force is a core strength of our armed forces and democracy.... I am opposed to reinstating the draft to fight more wars in the Middle East or anywhere else."
[Neither candidate commented on draft registration, either for men or for women.]
"Congress takes its first step toward killing the military draft" (by Leo Shane III, Military Times, 24 April 2016):
"The House Armed Services Committee will include instructions to examine the Selective Service program's viability and possible “alternatives” as part of its review of the annual defense authorization bill next week, staffers confirmed on Friday....
A bipartisan group of House lawmakers — several of whom sit on the committee — has already offered legislation to abolish the Selective Service System, calling it an outdated vestige of military history. Committee officials said the authorization bill language is not geared toward keeping or eliminating the Selective Service system, but reviewing the cost and operation of a program that hasn’t been used to fill the ranks since 1973....
Several lawmakers have also voiced plans to introduce related amendments to the authorization bill to specifically exempt women from registering for the draft...
The authorization bill, which sets spending guidelines and policy priorities for next fiscal year, will be marked up by the armed services committee on Thursday. The Senate must take up the measure later this year before sending the proposal to the White House to be signed into law.