Presentation by the U.S. Army to the National Commission on Military, National, and Public Service (redacted version released in response to my FOIA requests)
“Congress should end draft registration for all, not try to expand it to young women as well as young men,” a group of activists who oppose the draft said in a joint statement on Tuesday. It added, “Even more women than men would resist if the government tried to draft them.”
[“Women Should Have to Register for Military Draft, Too, Commission Tells Congress”, by Sarah Mervosh and John Ismay, New York Times, 24 March 2020]
The National Commission on Military, National, and Public Service (NCMNPS) has recommended that draft registration be extended to young women as well as young men, and that recommendation has been endorsed by President Biden. See our summary and analysis of the report and this joint statement by antidraft organizations. We want to hear from women who plan not to register with the Selective Service System when you turn 18, if you are required to do so. We can publish your resistance statement, with your name or anonymously. You can reach us at resisters@hasbrouck.org. Your statements will help encourage and empower others. Here are more anti-draft organizations and actions you can take.
Nine groups of anti-war activists panned the blue ribbon commission’s recommendation that everyone of draft age sign up with the Selective Service. “Making contingency plans for a draft that would include women would be an exercise in self-delusion by the Selective Service System and military planners,” the groups write in a statement. “Even more women than men would resist if the government tried to draft them.”
[“Commission Issues Verdict: Women, Like Men, Should Have To Sign Up For Draft”, by David Welna, NPR News, 25 March 2020]
Presentation by the U.S. Army to the National Commission on Military, National, and Public Service (redacted version released in response to my FOIA requests)
[Contingency plans to register women for the draft from presentation to the National Commission on Military Service by the Selective Service System, released by the NCMNPS in response to my FOIA requests. Additional records about these plans were released by the Selective Service System in response to a FOIA request by GovernmentAttic.org.]
Lawsuits challenging the Constitutionality of requiring men but not women to register fort the draft created the likelihood that eventually courts would rule that the current male-only draft registration requirement is unconstitutional now that women are allowed in all military combat assignments. That created pressure on Congress either to risk an embarassing and awkward court-ordered end to draft registration for men, to try to expand draft registration to women as well as men, or to replace the current registration scheme with some alternate contingency plan for conscription applicable equally to women and men.
The National Commission on Military, National, and Public Service (NCMNPS), which was created in late 2016 (during the “lame-duck” Congressional session after Presdient Trump’s election but before his inauguration) in response to this judicial pressure for Congressional action, released its final report and legislative recommendations on 25 March 2020. (The law establishing the Commission, as amended a year later to extend the deadlines for appointment of members of the Commission and completion of the Commission’s work, required the Commission to release its final report by 20 March 2020. But the Commission ignored this statutory deadline.)
For the first time in decades, a Federal commission has studied and made recommendations to Congress on whether draft registration should be ended or extended to women as well as men; whether there should be a draft of people with medical, foreign language, cyber/IT, STEM, or other special skills regardless of age or gender; whether a draft would be “feasible” (it wouldn’t, because so many people haven’t registered with the Selective Service System, have moved without notifying the SSS, and/or would resist if drafted); whether the government should require all young people to do compulsory civilian or military “national service”; and related issues.
Meanwhile, on 19 December 2019 - pre-empting the Congressional agenda on Selective Service ahead of the NCMNPS report - U.S. Representatives Peter DeFazio (D-OR) and Rodney Davis (R-IL) introduced H.R. 5492, a bipartisan bill “To repeal the Military Selective Service Act, and thereby terminate the registration requirements of such Act and eliminate… the Selective Service System.”
The Commission took comments from the public and held public hearings and closed-door invitation-only consultations and meetings during 2018 and 2019.
The overwhelming majority of the comments received by the Commission urged the Commsion to recommend that Selective Service registration be ended, rather than expanded to women. But the Commission threw away most of those comments, and omitted them from its report and responses to FOIA requests.
The Commission’s events were carefully stage-managed, and the Commission dragged its feet in responding to my Freedom of Information Act requests. But Commission records released by the National Archives and Records Administration (NARA) after the dissolution of the Commission in September 2020 reveal that long before the Commision made its official recommendations, the Commission was told by Congressional staff that (1) draft registration was being maintained for political, not military, reasons, and (2) Democratic Party members of the Senate Armed Services Committee would not support any package of legislation recommended by the Commission unless it included expanding draft registration to young women as well as young men. The Commission took those marching orders to heart, and never seriously considered ending draft registration.
“When asked about the political feasibility of a large-scale mobilization, one SASC [Senate Armed Services Committee] staff member responded that SSS [Selective Service System] is kept around largely for political reasons, but no one realistically thinks it will be used…. He remarked that the draft is currently designed to replace large numbers of infantry overseas; however, such numbers are not likely to be needed in the future and the current lead time for training and skills development for various occupations needed to fight modern wars makes the SSS model less practical….
“Given the 2016 decision to open all military occupations and, from their perspective, the most realistic use of mobilization was more along the lines of a skills draft, minority [Democratic Party] staff expressed strongly that any update to SSS which did not include female registration would have little chance of passage.”
[Internal NCMNPS staff notes from meeting with Senate Armed Service Commiteee (SASC) staff, 1 October 2018, released by the National Archives and Records Administration (NARA) after the expiration of the NCMNPS]
The next step will be for Congress to take up the issue. Congress is under no legal obligation and has no deadline to consider the recommendations made by the NCMNPS. But if Congress does nothing, draft registration is likely to be ended before long by court order. So Congress is likely to consider both the Commission’s recommendations, which were introduced in Congress as H.R. 6415, and the alternative of H.R. 5492 to abolish the Selective Service System.
Both H.R. 6415 and H.R. 5492 expired at the end of 2002 without being brought to a vote. But new versions of both these bills — similar but with new bill numbers in the new Congress — are likely to be reintroduced in 2021, or included in ;proposals for the Fiscal Year 2022 National Defense Authorization Act (NDAA) to be enacted in 2021.
Congress had been scheduled to hold hearings on the Commission’s report and recommendations, but those hearings were postponed because of the COVID-19 pandemic. Legislation was, however, introduced in the House of Representatives to implement the Commission’s recommendations including expanding Selective Service registration to young women as well as young men. And Rep. Jackie Speier, Chair of the Subcommittee on Military Personnel of the House Armed Service Committee, said at a committee meeting on 1 July 2020 (7 minute video clip) that she plans to hold hearings on women and Selective Service “within the next year”, i.e. by mid-2021. Dates for that hearing have not yet been announced, but the Commission’s recommendations will be considered by Congress sometime in 2021.
Despite many problems with the Commission’s secretive and stage-managed process, the debate that will follow the Commision’s recommendations is by far our best opportunity in decades to get Congress to end draft registration and contingency planning for a draft. The Commission recommendation is only advisory, so it’s time to urge your Senators and Representative in Congress to end draft registration.
The Commission held informal public events across the US in 2018 (I attended those in Denver, Boston, Nashua, and Los Angeles), released an interim report in January 2019 (more about the interim report and my analysis of its errors of omission and commission), and held formal hearings with invited witnesses including two days of hearings in April 2019 on whether Selective Service registration should be ended, extended to women, modified in some other way, or replaced. I testified on 25 April 2019 as the only invited draft resistance witness. The Commission released its final report and recommendations on 25 March 2020. Congress will probably consider the Commision’s recommendations and hold its first substantive debate on the military draft and draft registration since 1980 after the 2020 elections, most likely in 2021.
The Commission has been disbanded, but its former members are continuing to lobby Congress and the White House in support of its recommendations. (One member of the NCMNPS, as well as its Executive Director, ran for Congress in 2020, but both were defeated in the primaries.) President Biden supports expanding draft registration to women. The first of his Cabinet members to be confirmed and take office is Avril Haines, one of the members of the NCMNPS who recommended expanding draft registration to women (and who worked as a consultant to Palantir while serving on the NCMNPS). Two other former members of the NCMNPS, including Debra Wada, who chaired the NCMNPS subcommittee on Selective Service, served on Biden’s transition team.
Read more on this page and at the links below about the Commission, what the Commission recommended, what we should recommend to Congress, and information about the Commission’s activities obtained through my Freedom Of Information Act (FOIA) requests.
(See these links to news stories and other articles about the Commission, including this overview of the Commission’s activities by Bill Galvin and Maria Santelli from the Center on Conscience & War, one of the few organizations that followed the Commission’s work closely.)
“A modern-day draft, if marketed carefully and cleverly, could foster patriotism via the investment of every family in the nation. A greater involvement of the population to include National Service could reach every social demographic within the U.S.”
[Recommendations from the Selective Service System to the National Commission on Military, National, and Public Service, December 2017]
In late 2015, Commander-In-Chief Obama ordered all military assignments opened to women. That order undercut, and probably eliminated, the legal argument that had been used since 1980 to justify requiring only men, but not women, to register for the draft.
That gave members of Congress four options, none of which most of them wanted to take responsibility for, in the run-up to the 2016 elections:
After elaborate bi-partisan machinations, Congress chose Door Number One (“Do Nothing”). Perhaps members of Congress thought that would allow them to point the finger of “blame” at the courts, and away from themselves, if draft registration was ended. More likely they just wanted to punt this political hot potato past the 2016 elections. The Obama Administration debated what to do but decided to take no official position until after the 2016 elections.
To provide further political cover for delaying its decision, Congress voted in late 2016 to establish a National Commission on Military, National, and Public Service “to conduct a review of the military selective service process (commonly referred to as ‘the draft’).” The Commision was required to report back to Congress with recommendations for legislation by March 2020.
On 22 February 2019, before the Commission had completed its review, a Federal court found — as had been expected — that the current Selective Service registration requirement is unconstitutional. That ruling has been appealed, but it still puts additional pressure on the Commission and on Congress to make a decsion rahter than allowing it to be made, messily and piecemeal, by the courts. (More on this court decision and what it means.)
The act establishing the Commission (the National Defense Authorization Act for Fiscal Year 2017) was signed into law by President Obama on 23 December 2016. In accordance with this law, 3 of the 11 members of the Commission were appointed by President Obama during his final days in office. The other 8 members were appointed by members of Congress, one each by the House and Senate majority and minority leaders and the ranking majority and minority party members of the House and Senate Armed Services Committees. Appointments reflected the individual agendas of those making the appointments. Several House and Senate leaders appointed current or former members of their staff to the NCMNPS. In addition to former Congressional, Pentagon, and White House staff, appointments to the NCMNPS included members with backgrounds in voluntary civilian service organizations such as the Peace Corps and AmeriCorps:
Appointments to the Commission were supposed to be made within 90 days of its creation, but it appears that many were not and were therefore invalid. It’s unclear whether there was confusion, uncertainty, or internal disagreement regarding these appointments, whether it proved difficult to find people able and willing to serve on the Commission, or whether making appointments fell through the cracks in the confusion of the Presidential transition period.
Seats on the Commission that were not filled by the 90-day deadline were, by law, supposed to remain vacant for the life of the Commission. It’s unclear whether the members of Congress responsible for appointing members of the Commission simply ignored the law, whether appointments were made in secret long before they were announced, or whether appointments were back-dated to pretend to comply with the law.
Two years later later, a provision was enacted as part of the NDAA for Fiscal Year 2019 that changed the official “establishment date” of the Commission to 19 September 2017, presumably in an attempt to retroactively legitimate the late appointments to the Commission. I mentioned the obvious invalidity of the late appointments to the General Counsel of the Commission at its meeting in Boston on 9 May 2018. Two weeks later, the provision in the NDAA for Fiscal Year 2019 changing the “establishment date” of the Commission was added to the pending bill during a closed-door markup session by the Senate Armed Services Committee on 23-24 May 2018.
Individual members of the Commission may have had different agendas, just as those appointing them may have had.
All three of President Obama’s appointees to the Commission were women, one of them transgendered, suggesting that Obama’s primary goal for his appointments was to make sure that whatever the Commission recommends, it won’t recommend rolling back the opening of all military combat assignments to women.
Although the Commission is nominally a civilian entity, Brigadier General Joe Heck, U.S. Army Reserve, was elected Chairman by the members of the Commission. (Brig. Genl. Heck is also a medical doctor and a former Republican member of the U.S. House of Representatives from Nevada. Like many former members of Congress, and like the Co-Chair of the NCMNPS for Selective Service issues, Debra Wada, Brig. Genl. Heck earns his living as a lobbyist.)
Some members of the Commission have spoken and written publicly about how they see the role of the Commission (one member cited favorably to the example of “service” set by that inspiring leader, Richard Nixon). But they have done so as individuals, not on behalf of the Commission as a whole. We didn’t find out until after the Commission had disbanded, when some of its records including notes on its deliberations and decisions were released by the National Archives in response to my FOIA requests, what was discussed or what differences of opinion existed between members of the Commission.
At least one member of the Commission and the director of its staff ran for Congress in 2020. Alan Khazei was an unsuccessful candidate in the Democratic Party primary for a House seat in Massachusetts, while still employed as a member of the NCMNPS. As a Congressional candidate, Khazei did not state whether he supported ending draft registration or extending it to women, or whether he supports compulsory national service. Meanwhile, NCMNPS Executive Director Kent Abernathy was an unsuccessful candidate in the Republican party primary for a House seat in Indiana.
The director of research for the NCMNPS was Dr. Jill Rough, an officer in the U.S. Naval Reserve and former active-duty Navy officer. The NCMNPS research lead for Selective Service issues was Jud Crane, formerly with the Defense Intelligence Agency.
The Commission was established 23 December 2016 through provisions in the National Defense Authorization Act (NDAA) for Fiscal Year 2017. The Commission was originally required to report back to the President and Congress with its recommendations within 30 months of its establishment, i.e. by 23 June 2019. Two years later, in August 2018, Congress included a provision in the NDAA for Fiscal Year 2019 that changed the official “establishment date” of the Commission from December 2016 to September 2017. This had the effect of changing the deadline for the Commission’s report from June 2019 to March 2020 — at which time its recommendations can either be ignored, used, or abused to score points in campaigns for the 2020 elections.
The Commissioners were temporary part-time Federal employees of the NCMNPS. They met more or less monthly from September 2017 through July 2020, typically for a 2-3 day session either at the Pentagon, the Commission’s offices nearby in Arlington, VA, or at other locations throughout the country in conjunction with site visits.
As I said in my appeal of the denial of expedited processing of one of my FOIA requests for Commission records:
The NCMNPS was created by a provision of the National Defense Authorization Act (NDAA) for Fiscal Year 2017 that was included in neither the House nor Senate version of that bill, but was inserted behind closed doors by the House-Senate conference committee. There is no public record, aside from the statute itself, of why Congress and the President created the NCMNPS, or what they intended to NCMNPS to do. But the members of the NCMNPS, each of whom was appointed by a specific Congressional leader or by the President, presumably were given instructions by those who appointed them as to what they were supposed to do.
The House and Senate versions of the FY 2017 NDAA differed in whether they included a provision amending the MSSA [Military Selective Service Act] to expand Presidential authority to order registration with the Selective Service System, and criminal penalties for nonregistration or failure to report address changes, to women as well as men. The NCMNPS was created to address that issue.
The draft has been, of course, one of the most controversial issues in U.S. history, whenever it has been used. The last time registrants were called up for inductions, millions violated the MSSA. Tens of thousands were driven into emigration or exile. Thousands were imprisoned. Opposition to the draft influenced Congressional and Presidential elections.
Compliance with the MSSA is lower today than ever, in significant part because criminal enforcement was abandoned in failure by the DOJ in 1988 and has never resumed. It’s reasonable to assume that any attempt to expand Selective Service registration to women would prompt more resistance and more controversy.
The NCMNPS wanted us to believe that its purpose was to conduct an impartial inquiry and make recommendations informed by research and public consultation. They tried hard to create a record of their activities that would support that interpretation.
But an interpretation that is at least equally likely… is that the NCMNPS was created by Congress and the President to provide them with “political cover” and an excuse for enacting new legislation with minimal or no Congressional hearings or debate, relying on the “informed and expert” recommendations of the NCMNPS, and that the members of the NCMNPS were partisan political appointees selected for their ability and willingness to advocate for, and to construct a record that would support, policy recommendations consistent with the outcomes already sought by those who appointed them.
The members of the NCMNPS did their job. But did they see that job as open-minded inquiry, or as the construction of a pretext for Congressional and Presidential action?
The Commission’s events were carefully stage-managed, with nominal opportuntities for public comment but most time devoted to presentations by Commission members and invited panelists. Members of the Commission had an initial media training session in January 2018 from a Vice President of Edelman Public Relations. Two consultants were later hired by the Commission to provide further media training to the members of the Commission at their December 2018 meeting. At their January 2019 closed meeting, the members of the Commission held a “mock hearing” to rehearse for their public hearings.
I attended four of the Commission’s publicly advertised meetings in 2018, and have talked to opponents of the draft who attended others. (See my intial initial written response to the Commission’s request for public comments, my comments at its events in Denver, Boston, and Nashua, and my report on the meeting in Los Angeles.) All of these events were small and informal, with perhaps 50 people in attendance at each, including Commission staff and invited witnesses and guests, mainly from voluntary “service” organizations. The first hour of each public session was devoted to presentations by Commission members and a panel of invited witnesses. For the second hour, members of the audience were allowed to speak for up to 2 minutes each. So far as I know, everyone who showed up and wanted to testify at one of these events got a chance to speak, except at the public event in Los Angeles where the Chair of the Commission called an end to the event rather than take an additional 10-15 minutes to hear from everyone who had raised their hand to speak.
Putting a handful of draft resisters in cages serves neither to deter others nor to win over those who were prosecuted. At least five of the twenty people who were prosecuted for refusing to register in the 1980s, before the Department of Justice abandoned enforcement in failure, came to NCMNPS events. They testified that they are proud of having resisted, and would do it again. See the testimony to the NCMNPS of Dan Rutt, Paul Jacob, and Edward Hasbrouck.
Details of locations and times were disclosed only at the last minute. The Commission claims that “These meetings allowed folks to assemble from all over the country,” but in fact they were held on too short notice for that to be feasible for those who didn’t happen to live near one of the meeting locations. The Commission adopted a (secret) research plan for its staff, and solicited numerous closed-door briefings. But it wasn’t until late 2019, at the very end of the Commission’s deliberations, that any of the Commissioners met with any conscientious objectors or draft resisters.
One focus of the Commission’s initial interest appeared to be a compulsory “national service” requirement with both military and civilian components. The Commission solicited and received closed-door briefings on the draft, draft registration, and compulsory “service”, but none of these appear to have addressed the issues of compliance, enforcement, or whether a draft or compulsory service would be “feasible”.
The fragmentary records I have received from the Commission in response to my FOIA requests show that the Commission has solicited and received written and verbal (closed-door) briefings from invited witnesses and reviewed published articles concerning the draft, draft registration, a special skills draft, and compulsory national “service”.
The author of an article entitled, “Why We Still Need the Draft”, which was distributed to the members of the Commission, was invited to give a closed-door briefing in which she, “argued for preserving the selective service system in case of mass mobilization, and urged the Commission to consider ways in which the nation might conscript individuals with unique skills, such as financial analysts or software engineers.” During another closed-door briefing by a retired military officer who was invited to tell the Commission why he supports reinstating the draft, members of the Commission asked about how to “sell” the idea of military conscription to a reluctant American public. But there’s been little or no mention of this aspect of the Commission’s private agenda in the publicity for its public events.
None of the academic experts consulted by the Commission has had any expertise in the history of draft resistance, compliance, or enforcement, and nobody raised these issues in the Commission’s closed-door roundtable with invited academic “thought leaders”.
At the Commission’s October 2018 meeting, the Commission held a closed-door “panel on mandatory national service”. According to an article published later by one of the invited participants, a Libertarian anti-draft law professor, “The panel consisted of several legal scholars speaking with divergent viewpoints on the issue, which we understood as focusing on mandatory civilian service, not just the military kind….. I was told that the Commission does not currently plan to publicize an audio or transcript of the panel.” (Redacted notes from that panel discussion were finally released in August 2020 in response to one of my FOIA requests.)
Later public statements by members of the Commision, however, including comments by the Chair of the Commission at a symposium on national service at the Brrokings Institution on 10 October 2019, suggest that the Commissioners eventually realized that compulsory nationals service is a complete political non-starter.
Much of the rest of Commission’s October 2018 meeting was devoted to “a closed deliberation to discuss the Selective Service System, focusing on whether all Americans should be required to register”, i.e. whether the current requirement for young men to register should be extended to young women. According to the redacted minutes released a month later, a law professor with a background as a military judge was invited to facilitate this discussion. The perceived need to invite an outside facilitator to mediate among the Commissioners suggests that the Commission was still strongly divided on this issue, and had not yet decided whether to recommend that draft registration be ended for all, kept unchanged, expanded to women, or replaced with something different.
Just after that meeting, an op-ed was published in The Hill which which appears to be a trial balloon for at least some of the Commissioners who support a compulsory national service program for all young people. It describes a proposal remarkably similar to the compulsory national service legislation proposed (unsuccessfully) by Rep. Pete McCloskey in the late 1970’s and early 1980s. (After his release from prison, draft resister David Harris ran for Congress against McCloskey in 1976.)
As part of its next set of meetings, in November 2018, the Commissioners held a closed-door meeting at the Norwegian Embassy in Washington with representatives of several foreign governments to discuss their compulsory service requirements.
In a disgraceful attempt to appropriate the legacy of the Rev. Dr. Martin Luther King, Jr., the Commission held one of its public events in August 2018 at the National Civil Rights Museum at the Lorraince Motel in Memphis, TN, on the site of Dr. King’s assassination. Invoking a perverted re-writing of Dr. King’s message to support compulsory “national service”, the Chair of the Commission, Brigadier General Joe Heck, published an op-ed column on MLK Jr. Day in 2020 asking his readers to, “Think about Dr. King’s words.” But here’s what Dr. King said about the military draft:
My views on the draft are very clear. I’m against it, and I think the sooner our country does away with the draft, the better it will be for everybody. I’m very disturbed about the militaristic posture of our nation, and I think until we have a radical reordering of priorities in our country, we’re going more and more to the depths — and I should say to the doom — that follows arrogance of power.
The Commission sought input from a variety of individuals and organizations, some of them with little or no apparent expertise to offer about the draft, draft registration, or compulsory service. In December 2018, for example, Tweets from the Commission revealed that members of the Commission had made a special, unannounced trip to Seattle to consult with Starbucks and Microsoft. Immediately after the release of the Commission’s interim report in January 2019, members of the Commission held “discussions and listening sessions” with 27 non-governmental organizations — not including any anti-war organizations.
The Commission’s public events and solicitation of public comments were largely a sham. The Commission advertised that it would accept comments from the public through 31 December 2019. But most of the Commision’s decisions were made at a week-long marathon “VOTE-A_RAMA” meeting in July 2019, months before the close of the purported opportunity for public “input” into those decisions. The existence of this VOTE-A-RAMA was only revealed more than a year later, in response to my FOIA requests. Most of the public comments submitted to the Commission were inexplicably lost or destroyed, and not included in the Commission’s report.
During its October 2018 meeting, before even beginning to hold formal public hearings, the Commision held a series of closed-door, invitation-only roundtables with selected stakeholders they considered to be part of the legitimate terms of debate. A roundtable on Selective Service consisted entirely of representatives of military and veterans organizations. There was no comparable meeting with anti-war organizations or veterans of draft resistance or alternative service as conscientious objectors. No representatives of peace churches or feminist or anti-war faith leaders were included in the roundtable of faith leaders on women, combat, and the draft.
Among other issues, the Commission was supposed to report on, “the feasibility… of modifying the military selective service process in order to obtain for military, national, and public service individuals with skills (such as medical, dental, and nursing skills, language skills, cyber skills, and science, technology, engineering, and mathematics (STEM) skills) for which the Nation has a critical need, without regard to age or sex.” The Commission held one closed-door meeting with STEM students at the Tennessee College of Applied Technology in Memphis. But this was an invitation-only meeting, disclosed only after the fact. The Commission’s only meeting with health care workers was a “faith-Based conversation”, also disclosed only after the fact, at the Congregational Health Network in Memphis.
Although the law creating the Commission provided that Commission meetings were to be open to the public unless a member of the Commission objects, or classified information is to be discussed, Commission members unanimously agreed to close almost all of their meetings to the public and the press. Even Commission staff members were excluded from some of the Commission’s deliberations.
The Commission released an interim report on 23 January 2019. See this blog post for some of the errors of omission and commission in the interim report and some key points to keep in mind as you read the interim report and/or news stories about it, such as this one in USA Today in which I was quoted.
The Commission’s first formal hearing, on 21 February 2019, covered “universal service”. Of course this “universal” service will be only for young people. The casual conflation of “universal” with “compulsory only for young people” reflects the Commission’s profound and unexamined ageism. Any such system would have to have a compulsory element, and thus an enforcement mechanism, in order to be universal, and the staff memo on issues and policy options to be discusssed at this hearing includes the following:
Ideas on how mandatory service could be structured have been proposed many times over the past several decades, with primary considerations including ensuring compliance and effective programming. Punishments or sanctions for failing to meet a service requirement could range from ineligibility for government benefits or employment to fines or imprisonment. Whatever means are in place to encourage compliance, a well-structured mandatory service program would require a system to monitor participation.
No witnesses were invited to discuss the issues of compliance, enforcement, or feasibility of compulsory national service. Compulsory national service remained on the table as on option under consideration by the NCMNPS until the NCMNPS VOTE-O-RAMA to decide on final recommendations in July 2019. The compulsory national service proposal didn’t get the super-majority of votes that the NCMNPS had established as its requirement for final recommendations, but the votes of individual members of the NCMNPS on this and the other final recommendations remain secret.
The only discussion of compliance, enforcement, or feasibility — i.e. of resistance to conscription as distinct from protest, or legal options for Conscientious Objectors within the system — occurred during two days of formal public hearings on the future of Selective Service in Washington, DC, on 24-25 April 2019.
These two days of hearings (agendas and witness lists) covered both whether draft registration should be ended or continued, and if it is continued, whether it should be extended to women.
On 24 April 2019, Dr. Bernard Rostker, a former director of the Selective Service System, testified that that the database of registrants has become so hopelessly incomplete and inaccurate that it is “less than useless” and couldn’t be used for a military draft that could be enforced or would stand up to due process and fairness challenges, and that it can and should be shut down entirely rather than trying to expand it to women.
I testified as part of an invited panel of expert witnesses on 25 April 2019 on “Expanding Selective Service registration to all Americans”, i.e. whether draft registration should be ended entirely or extended to young women as well as young men. (Links to my testimony and more information about this hearing.)
According to internal minutes of NCMNPS meetings withheld by the NCMNPS duriung its existence but released in response to my FOIA requests to the National Archives after the NCMNPS was disbanded, the NCMNPS voted 10-0 (one of the 11 members was absent and cast no vote by proxy) in July 2018 to recommend continued contingency planning for a draft. That left open the question of whether to continue registration. But it made a sham of further “consultation” as to whether the U.S. should continue to prepare for a draft.
Despite submissions to the NCMNPS from CODEPINK and other anti-war feminists, as well as other anti-war organizations and activists, the words “feminist”, “feminism”, and “antiwar” never appear in the records of NCMNPS deliberations.
Most of the formal decisions of the NCMNPS were made during a week-long VOTE-O-RAMA in July 2019 (meeting notes released by NARA), even though the NCMNPS continued to pretend to seek “input” on those decisions through the end of 2019. All of the NCMNPS decisions were made by voice vote except for a roll-call vote on whether to recommend expanding the requirement to register with the Selective Service System to young women as well as young men.
There were 7 Democratic appointments to the NCMNPS (including 4 Congressional appointments and 3 swing appointments by President Obama) and 4 Republican Congressional appointments. To preclude purely party-line decisions, the Commissioners agreed early on to require 8 votes for any final recommendation.
On 16 July 2019, the Commissioners voted 7-4 in favor of recommending expanding draft registration to women as well as men. The minutes don’t say who voted which way, but I suspect that it wasn’t a purely party-line vote. According to their own self-imposed rules, this left them unable to reach a decision on the most important issue they had been appointed to decide. Two days later, on 18 July 2019, after one unidentified member of the Commission had been persuaded to change their vote, the Commission votes 8-3 to recommend expanding draft registration to women. At least one of the dissenting members requested and received permission from the other members to include a dissenting stament in the Commission’s final report, but apparently was later talked out of doing so.
On 25 March 2020 the NCMNPS), after a three-year charade of stage-managed and largely one-sided public events paralleled by closed-door meetings and negotiations among the members of the Commission, released its final report (executive summary, final report, legislative annex), recommending that Congress amend the Military Selective Service Act to require that young women, as well as young men, register for the draft when they reach 18 years of age, and inform the Selective Service System each time they change their address until their 26th birthday. See this summary and excerpts from the portions of the report related to the military draft and the Selective Service System.
In my testimony to the NCMNPS in April 2019, I told the Commissioners, “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 Commission’s recommendations with respect to Selective Service registration are just such a naïve fantasy, completely unfeasible and with no foundation in research or reality. The Commission kept its head firmly in the sand, carefully avoiding any inquiry into whether or how the current (unenforced and widely violated) registration requirement for men, much less an expanded registration requirement applicable also to women, could be enforced.
There’s no mention at all in the report’s 255 pages of compliance or noncompliance with draft registration. There’s been no audit of the registration database since 1982, and the Commission didn’t conduct or ask for one.
The Department of Justice is, and would remain, responsible for enforcement of the registration requirement. But nobody has been prosecuted for nonregistration since 1986, and since then, as I pointed out in my testimony, “the Department of Justice — conspicuously absent from the witness list for these hearings — has made neither any estimate of the numbers of violators nor any plan or budget for how to identify, investigate, find, arrest, prosecute, or incarcerate them.”
The preliminary report the NCMNPS received from the Department of Justice didn’t mention enforcement, and the Commission didn’t bother to follow up with the DoJ about the omission. The Commission never met with the DoJ, and didn’t call any witnesses from the DoJ to testify at its hearings. When Commission staff convened an inter-agency working group of representatives from 25 other agencies and departments to consult on possible recommendations, the DoJ wasn’t invited. The Commissioners went to extreme lengths to avoid asking any questions about compliance, noncompliance, enforcement, or feasibility — because they knew that even cursory research into these questions would make clear that draft registration of men has failed, and that trying to register women would be even more of a failure.
According to a statementfrom peace and antidraft organizations and activists, including antiwar feminists:
The issue is not whether women should have to register for the draft, but whether the government should be planning or preparing to draft anyone.
Congress should end draft registration for all, not try to expand it to young women as well as young men.
H.R. 5492 would end the current contingency planning for a future draft as well as draft registration, and would end all sanctions against those who didn’t register. That’s the appropriate choice for Congress and the American public.
The NCMNPS was directed by Congress to consider the “feasibility” of any draft. But registering or drafting women would not be feasible in the face of the likely widespread noncompliance. Women and men will join in resistance to any attempt to expand draft registration, or plans for a draft, to women.
Draft registration for men failed: criminal enforcement had to be abandoned decades ago in the face of pervasive noncompliance. Even the former Director of the Selective Service System testified to the NCMNPS that the current Selective Service System database is “less than useless” as the basis for a draft. Trying to draft women or get them to register to be drafted would be even more of a fiasco.
Making contingency plans for a draft that would include women would be an exercise in self-delusion by the Selective Service System and military planners. Even more women than men would resist if the government tried to draft them.
The Commision’s final report was released at a virtual event rather than the originally planned in-person event. The COVID-19 pandemic caused the cancellation of many of the events the Commission had planned for later in 2020, between the release of its final report and the end of its existence, to promote its recommendations.
All of the Commission’s legislative recommendations, including expansion of draft registration to women, were introduced in Congress on 27 March 2020 as H.R. 6415, the “Inspire to Serve Act of 2020”. But Congress is under no legal obligation and has no deadline to consider the recommendations made by the NCMNPS.
Action by Congress was considered in 2020, and again in 2021, but each year without enacting any major change to the Military Selective Service Act. A planned Senate hearing in 2020 was postponed due to COVID-19. Hearings were held in 2021 in both the House and Senate. But only members of the NCMNPS, and not any of its critics or those with other views, were invited to testify.
The government doesn’t readily admit failure or acknowledge that the willingness of the people to comply with its orders places limits on what it can do. The decisive factor is likely to be whether, when the time comes (perhaps in 2022 or 2023) for Congress to fianlly decide whether to end draft registration or extend it to women, members of Congress see sufficient visible evidence that young women — as young men have done, but probably in even larger numbers — will resist if the government tries to draft them or get them to register to e drafted, and that many older people will support them in that resistance.
Bill to enact the Commission recommendations or to repeal the Military Selective Servcie Act, or compromises such as to put Selective Service into standby status, could be considered on their own, or incorporated into a larger bill such as the annual omnibus National Defense Authorization Act (which was the bill used to create the NCMNPS in 2016). Amendments to the Fiscal Year 2021 NDAA were proposed, copied from the standalone bills, which would either end draft registration or expand it to women, but neither amendment was brought up for a vote. Some of these proposals were considered again as part of the FY 2022 NDAA, but Congress again punted, making no changes to Selective Service requirements and leaving the issue to be addressed, perhaps, in 2022 or 2023.
The self-imposed Business Rules initially adopted by the Commission (which were among the records released in response to my FOIA requests) required a super-majority of votes by eight of the eleven members of the Commision for any final legislative recommendations. There are 4 Republican Congressional appointees on the Commission, 4 Democratic Congressional appointees, and 3 lame-duck appointees of President Obama. So requiring 8 votes for any recommendation precluded a straight party-line vote. But those “Business Rules” could be changed at any time by majority vote of the Commission.
NCMNPS records released in response to my FOIA requests suggest that the NCMNPS initially focused on the possibility of compulsory national service with both military and civilian components. But later statements by members of the NCMNPS implied that the Commissioners were persuaded that any expanded compulsory service scheme would be too strongly opposed, and perhaps also too expensive, to be politically viable, and would likley be found unconstitutional.
The Commission was created as an excuse for delay by Congress in deciding whether to end draft registration or try to extend it to women, to try to find a political compromise to evade or soften the political reaction to this dllemna, and to provide political cover to members of Congress when they eventually vote on this issue. Evrything the Commission has done has reflected this agenda, incluidng its final report. It’s an exercise in propaganda and spin, intended to shape public debate, rather than a genuine policy study.
During the hearing at which I testified, Brig. Genl. Joe Heck, Chair of the NCMNPS, asked me what I would do if “we’re in a Red Dawn scenario, we’re being attacked through both Canada and Mexico,” and there aren’t enough volunteers to defend the U.S. Pentagon officials and other witnesses at the hearings were unable to come up with any plausible scenario for when a draft might be needed. But they argued for continuing draft registration and contingency planning for activation of a draft, as an “insurance policy” (i.e. to facilitate and make it easier to reinstate a draft), as a “lead generation” tool for military recruiters, as a symbol of the duty of the individual to serve the state, and as a tool to “channel” young people into roles and tasks - civilian and/or military - that the government decides will best serve its interests. As the Veterans for Peace said in a resolution calling for the repeal of the Military Selective Service Act adopted by a vote of its membership in 2012, draft registration “aids the government in its instrumentation of war”.
Those who supported expanding draft registration to women told the NCMNPS that doing so would more fully integrate women into the military and the system of war-making. But as the feminist antiwar organization CODEPINK said in a statement submitted to the NCMNPS, “Women’s equality will not be achieved by including women in a draft system. It is irresponsible for the fight for women’s rights to seek equal moral injury, equal PTSD, equal brain injury, equal suicide rates, equal lost limbs, or equal violent tendencies that military veterans suffer from. When it comes to the military, women’s equality is better served by ending draft registration for everyone.”
The emphasis in the publicity for the Commission’s public events and its selection of invited speakers at those events was almost entirely on voluntary rather than compulsory service. While there has been some mention of possible “modifications” to the Selective Service System, there has been little mention of the specific “modifications” that the Commission has been directed to study: registration of women for a possible draft, and conscription of men and women of all ages with special skills needed by the military, including, but not limited to, health care, foreign language, cyber/IT, and STEM skills.
There’s no mention on the Commission’s Web site of a possible special-skills draft or the occupations that Congress specifically suggested might be targeted for it.
The comment cards distributed at the Commission’s public events asked what could be done to “increase participation in military… service by individuals with critical skills,” but didn’t mention that the Commission is required to consider and report on the desirability and feasibility of conscription as a means of “increasing participation” by such individuals, or the specific categories of skills Congress directed the Commission to consider including in such a special-skills draft. None of the panelists invited to speak at the Commission’s public events in 2018 were been invited to discuss conscription of women or people with special skills. Even when the Commission posted an article on Medium about military roles for people with STEM skills, it didn’t mention the possibility of conscripting these people.
The Commission may have decided to recommend against a special-skills draft because of the objections to this option raised by the Pentagon. In its official report and recommendations to the Commission, the Department of Defense was silent on whether a general draft would be enforceable, but said this about a special-skills draft:
It is important to note that any mass mobilization process in which only those with critical skills are subject to draft will be pilloried as inequitable and unfair. Efforts to evade would be commonplace, and — given that the information on which the draft would rely could be obtained only through voluntary disclosure —- more often than not, successful.
Some of the people who were invited to speak as panelists at the Commission’s first round of public events in 2018 weren’t told that the Commission was tasked by Congress with studying the draft and compulsory service. Several told us privately that they felt used by the Commission. The agendas and one-sided speaker lists appear to have been planned to create the fake appearance of a “consensus” in favor of requiring military or civilian “national service” from all young people.
Despite claims that, “The Commission seeks to learn more about why people serve and why people may choose not to serve,” and that “The Commission is committed to… Listening to the public and learn[ing] from those who serve and do not serve,” all of the invited witnesses at all of the Commission’s public events throughout the country in 2018 were invited as promoters of voluntarily and/or compulsory service. Nobody has been invited to speak to the Commission about the reasons people might not serve, or might not want to serve, in the military.
In an informal report on its first year of work in November 2018, the Commission claimed that, “the Commission… met with experts and stakeholders who study and work across all parts of our mandate.” But that’s not true: there had been no engagement by the Commission with any experts on, or stakeholders from, the resistance to conscription, or the issues that will be faced in trying to enforce any expanded draft registration or compulsory service mandate.
Some of those reasons were discussed in testimony to the Commission at its meeting in Los Angeles from the Santa Barbara Meeting of Friends (Quakers): “The barriers to military service may include serving in undeclared, unconstitutional military actions, loss of freedom, loss of educational opportunities, health, family, personal necessities, Post Traumatic Stress Disorder (PTSD), Moral Injury, Military Sexual Assault, and violation of personal life philosophies.”
The Commission has tried to create a stage-managed and incomplete narrative about compulsory military service that focuses exclusively on the aspect of “service” and elides those of “compulsion” and “militarism”. This was perhaps most clear at the Commission’s public event in Memphis, which was held at the National Civil Rights Museum on the site of the assassination of Dr. Martin Luther King, Jr. The Commission tried to claim for itself the legacy of “service” of Dr. King, despite his support for draft resisters and other nonviolent direct action against the draft and his advocacy of conscientious objection to military “service”. Here’s what Dr. King had to say about compulsory military service:
My views on the draft are very clear. I’m against it, and I think the sooner our country does away with the draft, the better it will be for everybody….
As we counsel young men concerning military service, we must clarify for them our nation’s role in Vietnam and challenge them with the alternative of conscientious objection. [sustained applause] I am pleased to say that this is a path now chosen by more than seventy students at my own alma mater, Morehouse College, and I recommend it to all who find the American course in Vietnam a dishonorable and unjust one. [applause] Moreover, I would encourage all ministers of draft age to give up their ministerial exemptions and seek status as conscientious objectors. [applause] These are the times for real choices and not false ones. We are at the moment when our lives must be placed on the line if our nation is to survive its own folly. Every man of humane convictions must decide on the protest that best suits his convictions, but we must all protest.
The law establishing the Commission required the heads of several Cabinet-level departments including the Department of Justice (DOJ) to submit reports and recommendations to inform the Commission in its deliberations. Presumably, the Department of Justice was included because it is responsible for enforcing (or choosing not to enforce) the current draft registration law, and would be responsible for enforcement of any new conscription or compulsory service law. However, rather than discussing the DOJ’s responsibility for enforcing criminal laws, the DOJ report to the NCMNPS (pp. 96-97 of this PDF) stated that, “The Department’s primary interaction with the military selective service process is in ascertaining registration among covered individuals who are selected for employment with DOJ.”
The DOJ reported to the Commission that, “During FY 2015, 146,997 names of suspected violators were provided to the DOJ.” But the DOJ said nothing about what, if any, action it took to investigate or prosecute any of those people, none of whom were actually indicted and, so far as we can tell, none of whom were even investigated. The DOJ also said nothing about any projections of likely noncompliance or any plans, preparations, or budget estimate for enforcing a draft or compulsory service scheme. The DOJ doesn’t want to talk about whether a draft or compulsory service scheme would be enforceable — an issue it has ignored.
According to a presentation by one of the Commissioners to state legislators in August 2019, the Commission staff has hosted meetings of an interagency working group of 25 other Federal agencies to provide input and feedback on the Commission’s recommendations. But a Commission staff member the Department of Justice has neither been invited to, nor participated in the interagency working group. This lack of interest in the DOJ as the enforcement agency for Selective Sesrvice is indicative of the Commission’s lack of interest in investigating whether its recommendations are “feasible”.
As I told the Commission:
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.
If this Commission is considering recommending continuing or expanding the current Selective Service registration requirement, or replacing it with any new system of compulsory registration and/or service, you should schedule an additional formal hearing devoted to the issues of compliance, noncompliance, and enforcement, at which a representative of the Department of Justice is called to testify regarding enforcement history, plans, and budgets.
How much are you prepared to spend, and how much of a police state are you prepared to set up, to round up the millions of current draft registration law violators or enforce a draft?
And as I also noted in my statement to the Commission:
According to the responses of the NCMNPS to my FOIA requests, the NCMNPS has neither met with the Department of Justice nor received any report, plan, or budget from the Department of Justice for the enforcement of the current draft registration requirement or any alternatives. No witness at any of the NCMNPS public events to date has presented any enforcement proposal, plan, or budget. The NCMNPS has declined to disclose whether its staff or contractors have produced any assessment of past, present, or likely future compliance or any enforcement plan or budget for the current draft registration requirement or any of the compulsory alternatives being considered by the NCMNPS.
In spite of the low profile given to the issues of draft registration, the draft, and compulsory civilian or non-military service in the Commission’s publicity about its public events, witnesses at Commission events I attended included people who have refused to register for the draft (including at least 4 of the 20 people who were prosecuted for publicly refusing to register in the 1980s, before mass noncompliance forced the government to abandon prosecution of nonregistrants), people who had refused induction into the military during the US war in Vietnam, people who have done civilian alternative service under government supervision as conscientious objectors to military “service”, military veterans and military family members against war and conscription, and other supporters of draft resistance.
The Commission asked for public comments regarding the draft, draft registration, and compulsory national “service”.
Here’s what I said in my written statements and in-person testimony at Commission events in 2018 and 2019.
I think the most important thing for the Commission to have heard is that people subject to draft registration, and people who would be subject to a draft (including women, older health care workers and people with other specialized skills who might be subject to a modified or expanded draft) would refuse to go, and that other people would support them in their resistance.
Whether or not the Commission agrees with the reasons people don’t and won’t comply with registration or a draft, the Commission needs to realize that a draft is not “feasible” because so many people would not comply, and because noncompliance would render it unenforceable.
Whatever the Commission recommends, Congress should enact legislation to end draft registration and abolish the Selective Service System.
That’s the lesson of the last 40 years of failure of draft registration. Congress, like the Commission, needs to heed that lesson.
The Commission may recommend ending draft registration, in preference to trying to expand registration to young women as well as young men. But that will still leave millions of men who didn’t register for the draft in the past subject to lifetime state and Federal civil and adminstrative sanctions including ineligibility for Federal jobs, naturalization as U.S. citizens, and other Federal and state programs. It’s important to make full and unconditional amnesty for all past nonregistrants part of the terms of the upcoming Congressional debate.
As I pointed out to the NCMNPS:
Every U.S. war in which conscription has been used has been followed by public debate and agitation - sometimes prolonged and often acrimonious - about how to deal with those who resisted or violated the draft law while it was in effect. After each such war - the Civil War, World War I, World War II, and the U.S. war in Indochina - there has eventually been some sort of formal or informal pardon, amnesty, commutation of sentence, early release from prison, or other official action to mitigate some of the penalties imposed on draft and war resisters during the war and while the draft was in use. Some of the most heated debate over how to respond to resistance by the “Vietnam generation” concerned how to treat resisters after the U.S. withdrew from Vietnam and the draft was ended. Military and draft resisters and exiles continued to be subject not only to the risk of criminal prosecution but to administrative and immigration sanctions. Two incomplete “amnesties” left penalties in effect for some resisters, and a legacy of bitterness. The Commission should foresee, and you should point out to Congress and the President, that another - and probably much more prolonged - such controversy can be anticipated if the Selective Service registration requirement is ended without ending and explicitly foreclosing all state and Federal sanctions for past nonregistration…. Extended, complex, and costly Federal litigation would of course be inevitable…. Litigation over state sanctions for past nonregistration would likely be even more prolonged and burdensome…, and even less likely to produce consistent outcomes or meaningful closure.
I and other anti-draft activists and organizations asked the Commission to recommend that Congress:
A bi-partisan bill to acoomplish this, H.R. 5492, was introduced in the U.S. House of Representatives in December 2019, just before the close of the Commission’s public comment period. Both one of the sponsors of H.R. 5492, Rep. Peter DeFazio of Oregon, and anti-draft activists have asked the Commission to recommend that Congress enact H.R. 5492 or similar legislation.
More is at stake than draft registration or the draft itself. As I concluded my statement to the Commission at its formal hearing on Selective Service:
I could easily have dodged the draft by quietly staying home. I could have registered just before my 26th birthday, minimizing the amount of time during which I would have been at risk of being drafted, and preserved lifelong eligibility for Federal and state programs. That remains the easiest and safest course of action for those who don’t want to be drafted, and I fully respect, support, and commend all those who have made that choice. Even after I was convicted of refusing to register, I could have avoided prison camp if I had been willing to do “service” work that was politically acceptable to the sentencing judge.
I resisted draft registration, and I persisted in that resistance, not because I wanted to opt out of personal participation in war, but because I wanted to prevent a draft and, by doing so, to limit the ability of the U.S. to wage war. With millions of others who have defied the law, we have succeeded in making draft registration unenforceable and a draft unfeasible.
It’s time to admit that, like it or not, draft registration has failed, and should be ended entirely, and to begin to deal with the implications of that fact for military policy.
This Commission’s final question is whether draft registration or a draft are “needed”. The implication seems to be that if a draft might be needed, draft registration should be retained. But that’s getting it backwards. The failure of draft registration should make clear that a draft would not be enforceable or feasible, even as a fallback. If the Selective Service System is an insurance policy, it is one backed by an underwriter that has been insolvent for decades. If U.S. military plans or commitments to endless wars around the world might require a draft, but a draft would not be feasible, that is a reason to scale back U.S. military activities.
The issue will next be taken up by Congress. Members of Congress need to hear from men who didn’t register for the draft when they were supposed to do so, men who registered but have moved without telling the Selective Service System their new address, men who are registered but would refuse to go if they were drafted, parents who would tear up any induction order that came for their son or daughter (shifting the risk of prosecution from their children to themselves), and women who would refuse to sign up if draft registration is extended to women.
To the extent that the Commission recommends some form of compulsory national service, Congress will need to be reminded of the contradictions between compulsion or coercion and any positive notion of “service”. As I said directly to the Commission in my testimony at its hearing in Denver in April 2018, “Compulsory service is, by definition, slavery.” Others made similar statements to the Commission. Teaching people to equate service with submission amounts to teaching them obedience. But we have enough people who are willing to obey orders unquestioningly. We need more people who question authority and who are willing to disobey illegal and immoral orders.
This page published or republished here 9 June 2018; most recently modified 3 January 2024. This site is maintained by Edward Hasbrouck. Corrections, contributions (articles, graphics, photos, videos, links, etc.), and feedback are welcomed.