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Threatening letters from the Selective Service System

One of the most common reasons for a prospective draftee (or their parent, family member, friend, or lover) to visit this Web site or to seek advice from a draft counselor or Selective Service lawyer is that they have received a letter from the Selective Service System (SSS) threatening possible prosecution for failure to register with the SSS as required by the Military Selective Service Act.

These letters raise issues that could become even more important in the future, depending on the outcome of current debates in Congress. If the requirement to register with the SSS is extended to include young women as well as young men, it is inevitable that some young women will resist openly, and many more will quietly ignore the registration requirement. And public attention to the expansion of registration to women is likely to bring more attention to the ongoing lack of compliance by young men with the requirement to register and report address changes to the SSS. In the face of a crisis of credibility for the registration scheme due to visible mass noncompliance, the first response of the SSS is likely to be an attempt to intimidate nonregistrants through threats of prosecution.

To whom are these letters sent? What do they say? How credible are these threats of prosecution? And what should recipients of these letters do?

1. Why does the Selective Service System send letters threatening prosecution?

Knowing and willful failure by any male (as assigned at birth) U.S. resident age 18-26 to register with or report any change of address to the SSS is a Federal felony pursuant to 50 U.S. Code § 3811. However, nobody has been indicted for any violation of this statute since 1986, and since 1988 the Department of Justice has suspended all investigations or prosecutions of suspected nonregistrants.

Registration with the SSS used to be a condition for Federal student aid, but that requirement ended in 2021, and the questions about Selective Service registration are to be removed from the FAFSA student aid form by 2023. The data matching agreement between the SSS and the Department of Education expired on July 2, 2022. “Effective July 1, 2022, applicants will no longer be able to register with Selective Service System via the FAFSA.” Notably, California, which used to require registration with the SSS for state student aid, repealed that requirement in 2021 to align California law with the revised Federal student aid law.

Selective Service registration is a condition for Federal government jobs, and many states have laws that make registration a condition for state government jobs, state student aid, or other state programs. But not all states have such laws, and not all draft-age men go to college, apply for state student aid, or plan to work for Federal, state, or local government agencies.

In the absence of enforcement of the potential criminal penalties for nonregistration, the SSS relies primarily on laws in many states that require draft-age men to register with the SSS in order to obtain a drivers’ license, or make registration with the SSS automatic or the default for draft-age men applying for driver’s licenses, to generate most of the registrations that the SSS receives.

But not all states have laws like this. Populous states that don’t link driver’s licenses to Selective Service registration include California, Oregon, Pennsylvania, New Jersey, and Massachusetts.

Where does this leave the SSS?

In states that don’t link driver’s licenses to Selective Service registration, and for those young people who don’t have driver’s licenses (long common among people of all ages who grew up and live in New York and some other cities, and a growing percentage among young adults nationally), the SSS relies primarily on threatening letters to intimidate young men into registering.

These letters are purely a scare tactic. They are threatening letters - largely empty threats - not warning letters. They are not intended or currently used for investigation or prosecution of possible criminal violations of the Military Selective Service Act. But responses to these letters could be used as evidence against nonregistrations if prosecutions resumed.

2. Who gets letters threatening prosecution for failure to register with the SSS?

The SSS obtains lists from other government agencies and commercial data brokers of names and addresses that might correspond to individuals subject to the requirement to register with the SSS. Those lists are matched against the SSS database of registrants to generate targeted mailing lists of possible nonregistrants. Threatening letters are then mailed to these names and addresses.

These activities appear to be subject to both the Privacy Act and the Computer Matching Act. But the SSS has not promulgated a System of Records Notice pursuant to the Privacy Act for a database of possible nonregistrants or a mailing list for threatening letters, or a notice pursuant to the Data Matching Act for any of these data matching programs.

Concerns about noncompliance with the Data Matching Act have been raised with the SSS since at least 2004, but have yet to be addressed. In August 2022, in response to one if my FOIA requests, the SSS said it could find no records of any of the reports, notices, or assessments required by the Data Matching Act, and no records of any meetings of the Data Integrity Board responsible for reviewing all such agreements.

Neither the Privacy Act nor the Data Matching Act creates a private right of action for violations of these notice requirements. So we don’t know as much about these data matching programs as we are entitled by law to know.

Information from commercial data brokers is notoriously unreliable, as is “matching” of lists which may have variations in names, spellings, addresses, etc. even for the same person. Recipients of letters from the SSS threatening prosecution for failure to register have included, inter alia, women, seniors, dead people, people who were not required to register, nonexistent people, pets, and cartoon characters. The SSS sent a letter to Disneyland threatening Mickey Mouse with prosecution for failure to register, even though the SSS had already received multiple registrations for Mickey Mouse. (“The sample did find six cards listing Jimmy Carter as the registrant, two for Mickey Mouse, one for Ronald Reagan and one each for Senator Jesse Helms, Republican of North Carolina, Speaker of the House Thomas P. O’Neill of Massachusetts, and Susan Ford, daughter of former President Ford. Two other cards listed Mr. Rostker [Director of the SSS] as the registrant.”)

3. What do these threatening letters from the SSS say?

Below is a typical example of the first letter sent by the SSS to a name and address generated by this data matching program:

Some (unknown) amount of time later, if the SSS still hasn’t matched a recipient of this first letter to a registration, the SSS sends a second letter similar to the one below:

(There’s another version of a similar letter here.)

The SSS has described the sequential sending of these two letters as follows:

[T]he agency continued direct mailings targeted to young men who did not register and turned 19 years old in CY 2016. The first such mailing is a reminder of men’s civic obligation to register with Selective Service; the second mailing is sent when there is no response to the first mailing. The second mailing highlights the legal consequences and informs the man that his name will be added to a database maintained by the Department of Justice.

4. What happens to people who don’t respond to these threatening letters?

The SSS has described its procedures for following up on these letters as follows:

[I]f 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 mailings, his name is referred to the Department of Justice (DoJ) as required by the Military Selective Service Act. In FY 2018, 112,051 names and addresses of suspected violators were provided to DoJ. The Department of Justice will determine the requirement to investigate and/or prosecute an individual’s failure to register.

It’s crucial to recognize that these “referrals” to the DoJ by the SSS are not made for the purpose of investigation, prosecution, or any other action by the DoJ. Recipients should not panic.

Millions of names of possible nonregistrants (who may or may not exist or have ever have existed, may or may not have been required to register, and may or may not have already registered) have been referred to the DoJ by the SSS since 1988. None of them have been investigated or prosecuted.

Despite the statement by the SSS that “The Department of Justice will determine the requirement to investigate and/or prosecute an individual’s failure to register”, nobody at the DoJ has actually been assigned to, or made any plans for, enforcement of the Military Selective Service Act.

In March 2019, as the National Commission on Military, National, and Public Service (NCMNPS) prepared for its formal public hearings on Selective Service in April 2019, NCMNPS staff contacted the DoJ regarding enforcement of draft registration.

According to the minutes of the closed-door NCMNPS meeting, which were withheld by the NCMNPS in violation of the Freedom Of Information Act (FOIA), and released only in 2021 by the National Archives and Records Administration after the NCMNPS was disbanded:

Dr. Rough [NCMNPS 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 [NCMNPS 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.

There is no evidence that this has changed. As of August 2021, in response to one of my FOIA requests, the SSS said it was unable to find any records of “communications by the SSS to the DOJ since 2010 concerning actions to be considered or taken with respect to possible violations of the Military Selective Service Act.”

The SSS knows that the DoJ has no Selective Service enforcement plan, assigned staff, or budget, and will not investigate or prosecute any of the names referred by the SSS as possible nonregistrants. The only reason for these “referrals” by the SSS to the DoJ is to enhance the scariness of the threatening letters sent by the SSS, by enabling the SSS to claim - truthfully but misleadingly - that those who do not register (or provide evidence of their innocence) will be “referred to the Department of Justice” for investigation and prosecution.

Curiously, the number of names referred by the SSS to the DoJ, which had been a regular feature of SSS annual reports for many years, has not been included in those reports since FY 2018. Our FOIA request to the SSS for the numbers of referrals in more recent years is pending.

We can only speculate as to why the number of referrals has not been included in more recent SSS annual reports. Perhaps the discrepancy between the number of referrals (more than a hundred thousand in most years) and the number of prosecutions (zero) was calling attention to the emptiness of SSS threats.

More recent figures were, however, disclosed in August 2022 in response to one of my FOIA requests:

  • FY 2010: 145,429 suspected violators
  • FY 2011: 117,020 suspected violators
  • FY 2012: 101,355 suspected violators
  • FY 2013: 35,669 suspected violators
  • FY 2014: 295,416 suspected violators
  • FY 2015: 146,997 suspected violators
  • FY 2016: 169,939 suspected violators
  • FY 2017: 184,051 suspected violators
  • FY 2018: 112,051 suspected violators
  • FY 2019: 129,053 suspected violators
  • FY 2020: 117,288 suspected violators
  • FY 2021: 238,679 suspected violators

It’s unclear to what extent the year-to-year variations in these numbers reflect actual variations in noncompliance, and to what extent they reflect variations in data matching activities.

It’s likely that the number of nonregistrants will increase dramatically beginning in FY 2024, after the questions about Selective Service registration have been removed from the FAFSA student aid form.

If the SSS procedures for sending threatening letters and making referrals to the DoJ, and the percentage of recipients who do not register in response to these letters, continue unchanged, the increase in the number of nonregistrants is likely to mean a proportionate (and embarrassing to the SSS) increase in the number of letters sent by the SSS and in referrals by the SSS to the DoJ.

The law does not require potential registrants to accept, sign for, open, or read any letters from the SSS. So far as I can tell, there is no statutory or regulatory obligation for anyone to acknowledge, answer, or provide evidence (such as of having already registered, or of not being required to register) in response to any of these letters from the SSS.

Responding to a threatening letter from the SSS is not a way to make a claim for exemption, deferral, or classification as a conscientious objector, or to indicate the intent to do so if called to report for induction. There is a way to make a record with the SSS of such a claim, even before the SSS wants to consider it, but that involves a different procedure pursuant to the Privacy Act.

5. Does a letter from the SSS mean that the recipient has to register or will be prosecuted?

No. Letters from the SSS may prompt people to think about whether they want to register or what they want to do about draft registration, if they haven’t done so already. But receiving one of these letters is not, in and of itself, a good reason to register or change one’s relationship to the SSS.

Getting one of these letters from the SSS does not mean that the recipient has been targeted for prosecution or is the subject of an investigation, or that they will be if they don’t respond to the letter.

These letters are mass-produced and auto-generated by the hundreds of thousands every year. The SSS doesn’t really know whether the names and addresses to which they are sent are valid or correspond to people who are supposed to register. These letters can be ignored with impunity.

Ordinary letters that don’t have to be signed for provide no proof of delivery, and thus are of minimal if any value in court as evidence that anyone received or read them. It’s perfectly legal to throw these letters away unopened and unread. There are no adverse consequences to not acknowledging or responding to letters from the SSS, other than possible sending of follow-up letters and (largely symbolic) referrals of names and addresses to the DoJ.

Those subject to registration have the same options regardless of whether they receive any of these letters from the SSS. If they are concerned about the collateral consequences of nonregistration, they can wait to wait to register until just before their 26th birthday, and register then. This minimizes the time that a person is at risk of being drafted, while preserving lifetime eligibility for government jobs and all other Federal and state programs.

6. What are the risks of responding to messages from the SSS?

The general advice of criminal defense attorneys should be the same in Selective Service cases as in any others: “Exercise your right to remain silent. Don’t talk to the SSS, the police, the FBI, or the prosecutor. Say nothing and sign nothing without first consulting a qualified lawyer.”

In general, recipients who want to minimize their risk of prosecution, or of conviction if prosecuted, should not acknowledge or respond to threatening letters from the SSS, for the same reasons they should not talk to police or other law enforcement officers or agencies.

Anything a recipient of one of these letters says in response can be recorded, passed on to the Department of Justice, and used against them and/or others at any time in the future, including in the event of activation of a draft and/or resumption of prosecutions of nonregistrants.

Regardless of what, if anything, is said, any acknowledgment or response to one of these letters by a recipient will (1) make it more likely that they will be selected for prosecution if prosecutions of nonregistrants resume, and (2) provide evidence of receipt of the letter and thus of knowledge of the obligation to register, which is an element of the criminal offense.

All criminal violations of the Military Selective Service Act (50 U.S. Code § 3811) include a specific intent element of actual knowledge of the law. As this pertains to registration, “One who fails to register must ‘knowingly’ do so before he is guilty of an offense.” (U.S. v. Gary John Eklund, 733 F.2d 1287, 8th Cir. 1984). At trial, the government has the burden of proving actual knowledge by the defendant that they were legally required to register.

Any acknowledgment of receipt of one of these letters or of any other notice of the obligation to register provides incriminating evidence of this essential element of a criminal offense.

It is and will remain true that, as the Department of Justice lawyer in charge of Selective Service prosecution policy stated in 1982, “The total number of nonregistrants will doubtless remain very high when measured against the Department’s prosecutive resources…. We first would have to accept the simple fact that, although some persons will be prosecuted, there will be others who are neither registered nor prosecuted.” (David J. Kline, Legal Advisor, memo over the signature of Lawrence Lippe, Chief of the General Litigation and Legal Advice Section of the Criminal Division, to Assistant Attorney General D. Lowell Jensen, 11 January 1982. This memo was relased on discovery in U.S. v. Wayte. For more on the Selective Service registration enforcement options considered by the government in the 1980s, including the possibility of prosecutions for aid, abetment, counseling, and/or conspiracy, and how and why the government chose to exercise its prosecutorial discretion in the way it did, see my 1984 article, National Resistance ‘Conspiracy’?)

Prosecutors will have to choose which suspected nonregistrants to investigate and prosecute.

“Knowledge” is likely to be the most difficult element of the offense for the government to establish at trial. And developing evidence of the defendant’s actual knowledge of their legal duties is likely to be the most resource-intensive aspect of the government’s investigation and trial preparation.

In the absence of a confession or self-incriminating admissions of knowledge by the defendant, the government would have to show that the defendant was notified of their duty to register, and still didn’t register after being provably notified. This is what was done in the cases of nonregistrants who were investigated for possible prosecution in the 1980s. Proof of notice of the law, and thus of the defendant’s knowledge of the law, was provided by signatures on the return receipts for certified letters, by the testimony of FBI agents who interviewed nonregistrants, and by nonregistants’ incriminating admissions in letters to the government, press releases, and public statements.

The government’s procedure for developing evidence of specific intent (knowledge and willfulness) was described in a July 9, 1982, communication to United States Attorneys from the Justice Department, which “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. Eklund, 551 F. Supp. 964, S.D. Iowa 1982.)

For these reasons, investigating and prosecuting only those who have already made incriminating admissions of knowledge of their duty to register - including admissions in the form of acknowledgments of receipt of warning letters or other notices from the SSS - will remain the path of least resistance for the government in the exercise of prosecutorial discretion, just as it was central to the government’s selection of nonregistrants to prosecute in the 1980s.

Some young people, of course, choose to take the risk of “coming out” publicly as knowing and willful nonregistrants or violators of the address update requirement. But they should know that those who acknowledge or respond in any way to any letter or other message from the SSS make it (1) more likely that they will be prosecuted if prosecutions of nonregistrants resume, and (2) more likely that they will be convicted (if they persist in nonregistration) if they are prosecuted.

Whether or not to to speak publicly or tell the government about your choice not to register for the draft is a separate decision from whether or not to register.

Lawyers, legal workers, and draft counselors should not try to make either of these decisions for their clients. Whatever choices they think they might personally make if threatened by a draft, draft counselors and draft lawyers should be prepared to advise and assist both draft resisters and draft evaders, including young people who know that they don’t want to be drafted but aren’t sure whether they want to resist openly.

Some opponents of the draft have argued that openly declared resistance is the only politically or ethically correct mode of noncompliance with the law. Conversely, others have argued that the duty of a dissident is to make it as difficult as possible for the government to capture or imprison them, and/or that those who make their resistance public are seeking martyrdom, facilitating government repression, and contributing to the diversion of scarce movement resources to legal and prison support. Some have tried to distinguish the morality and/or political appropriateness of “draft resistance” from “draft evasion”. I think that both public and private nonregistration, draft resistance and draft evasion, are legitimate and often effective tactics of nonviolent mass direct action.

“Language like ‘self-incrimination’ is… dependent on one’s perspective. Telling the US I wouldn’t be participating in preparations for nuclear war, or assisting in invading Latin America never felt like I was incriminating myself. I realize prosecutors see this differently,” says Michael Wehle, who wrote to the SSS in 1983, in response to a threatening letter, informing the SSS of his refusal to register — and was never prosecuted.

We encourage open resistance, which can help end draft registration and the threat of anyone being drafted. But we recognize that there is safety in silence. Closeted resistance is the safest choice for an individual who doesn’t want to be drafted, prosecuted, or imprisoned.

Given the necessity for the government to establish the defendant’s knowledge of the law to obtain a conviction, the risk of criminal sanctions for “closeted” nonregistration is minimal (although even those nonregistrants who have remained silent about their resistance can be subjected to extrajudicial collateral sanctions such as lifetime ineligibility for Federal jobs). Even if the government were to decide to prosecute some nonregistrants, after a hiatus of more than 35 years, almost all of the risk of prosecution would fall on those who have “come out” publicly as nonregistrants.

The risk of new prosecutions for nonregistration appears to remain very low. But recipients of letters from the SSS who don’t want to take on increased risk should exercise their right to remain silent. Don’t communicate with the SSS in any way.

7. What about registered or certified letters that you have to sign for?

Don’t sign for any letters from the Selective Service System, FBI, U.S. Attorney, or Department of Justice. Anyone who receives such a letter should decline to accept it and contact an attorney. Anyone aware of such a letter related to Selective Service should also notify the Military Law Task Force of the National Lawyers Guild.

Sending certified or registered letters is expensive and labor-intensive. The only reason to send such letters is to obtain proof of delivery, i.e. incriminating evidence of the recipient’s knowledge of the law.

Return receipts for certified letters from the SSS and/or Department of Justice were introduced in the trials of nonregistrants in the 1980s as evidence of knowledge of the duty to register.

Recipients of threatening letters don’t always remember whether they had to sign for them. But so far as I can tell, no registered or certified threatening letters have been sent by the SSS since 1988. Any such letter would be an indication of a significant change in decades-old policy and a possible move to resume investigation and prosecution of selected nonregistrants. Please let me know if you receive such a letter, or know anyone who does, and if possible send me a copy.

8. What about e-mail messages, text messages, or messages on social media?

Don’t open any e-mail messages that claim to be from the SSS, FBI, or Department of Justice (DOJ). Delete any such messages unopened, and mark them as spam.

E-mail messages can, and often do (although I don’t know if the SSS has used this technique) include invisible tracking tags that provide the sender with evidence of whether they have been opened, and thus could provide incriminating evidence of knowledge of the registration requirement - just like signing for a certified letter. E-mail services providers can usually, in response to a subpoena, provide the government with records of whether messages have been opened and viewed.

There are good reasons not to believe that that any e-mail or text messages purporting to be from the SSS, FBI, or DOJ are genuine, and not to believe anything they say. Deleting them unread and marking them as spam helps provide evidence that you did not, in fact, believe them.

Pretending to be from the SSS, FBI, or DOJ is an effective way for scammers to “phish” for personal information to use for identity theft or other fraudulent schemes. Spam claiming to be from the FBI is especially common.

The DOJ itself has warned the public about threatening spam claiming to be from the DOJ or other Federal agencies, and has advised recipients to delete these messages unopened:

The Department of Justice has recently become aware of fraudulent spam e-mail messages claiming to be from DOJ…. THESE E-MAIL MESSAGES ARE A HOAX. DO NOT RESPOND. The Department of Justice did not send these unsolicited email messages — and would not send such messages to the public via email. Similar hoaxes have been recently perpetrated in the names of various governmental entities…. Email users should be especially wary of unsolicited warning messages that purport to come from U.S. governmental agencies directing them to… provide sensitive personal information. These spam email messages are bogus and should be immediately deleted. Computers may be put at risk simply by an attempt to examine these messages for signs of fraud. Do not open any attachment to such messages. Delete the e-mail. Empty the deleted items folder.”

With specific reference to messages about the draft, the U.S. Army Recruiting Command has warned that any “texts, phone calls, or direct messages about a military draft” are “not real at all.” In ignoring any such messages, and deleting them unread, recipients are reasonably relying on official government notices, advisories, and recommendations.

Unless you have decided to resist openly, don’t talk to the police. Don’t talk to the FBI. Don’t talk to the SSS. Anything you say can be used against you.

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This page most recently modified 19 August 2022. This site is maintained by Edward Hasbrouck. Corrections, contributions (articles, graphics, photos, videos, links, etc.), and feedback are welcomed.