G.T. Hunt
10705 Tenbrook Drive
Silver Spring, Maryland 20901
301-530-2807
gthunt@mdo.net
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SELECTIVE SERVICE AND MILITARY LITIGATION

1969-1972

GAILLARD T. HUNT


From April 1969 to late 1972, G.T. Hunt counselled or represented about 100 men seeking to avoid the war in Vietnam. Some of the papers left behind by that practice have been given to the Swarthmore College Peace Collection. Each client with a file there has agreed to leave it at Swarthmore without restrictions.

Each client's file has a finding aid describing the file and briefly setting forth the client's story. Hunt has retained copies of these and has permission to share them with researchers.

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There is an overall summary and finding aid, which begins with Hunt's own story as to why he felt called to leave his work as an attorney-advisor at the Federal Power Commission and undertake this litigation. Prior to 1969 he had written an article on conscientious objection, published in 15 Catholic Lawyer (Summer 1969) 221. (Hunt argued that the statute required an objection to participation in any form in war, not an objection to war in any form. This idea was soon rolled over by the Supreme Court in U.S. v. Gillette, 401 U.S. 437 (1971).) Hunt also wrote on Dr. Spock's trial for The Boston Globe (April 13, 1968) and The Village Voice (April 25, May 30, and June 27, 1968). A story Hunt wrote about a reserve unit that got a stay from Justice Douglas halting its movement to Vietnam, The Village Voice, September 19, 1968, put him in touch with the lawyer who was later to be invaluable as local counsel in Baltimore. Commentary and journalism were satisfying, but eventually Hunt decided he must litigate.

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The overall summary continues chronologically, starting from April 1969:

1969 -- Two habeas corpuses and a pre-induction suit.

Hunt's first case was a soldier on leave at his home in Maryland, under orders to report to California for shipment to Vietnam. He was a volunteer who had developed a conscientious objection during the course in Vietnamese at Monterey. His application for conscientious objection discharge had been denied.

It was essential to file challenges to denials of conscientious objection discharges in the east, or anywhere but California and neighboring states, because the 9th Circuit had ruled that in-service conscientious objectors had to exhaust their supposed remedies before the Board of Correction of Military Records before they could go to court. This would take at least a year or two, but the 4th Circuit (Maryland, Virginia, and North and South Carolina) had held that such exhaustion of remedies was not necessary. So questions of jurisdiction and venue became crucial to all of Hunt's military habeas corpuses. The law was doing what it does best: diverting attention from the real and most dangerous issues.

In May the court stayed the soldier's transfer to Vietnam, and about a year later it issued an opinion ordering him discharged. [Citation available on request.]

In June 1969, right after this soldier got his stay, Hunt filed a similar suit for an ROTC lieutenant not on active duty, and the government raised similar issues of jurisdiction and venue. [Citation available.]

In July, 1969, Hunt got a pre-induction challenge. The draft law said on the face of it that a registrant had to submit to an induction order, even if wrong, and raise his claims to exemption after he was in the military, and, if unsuccessful there, by a habeas corpus in civilian court after exhausting his military remedies. The only alternative was to refuse to submit to the induction order by refusing to step forward and take the oath when told to do so at the induction center. But then the registrant's claims would be heard only as defenses in a criminal trial for a felony punishable by five years. So suits like this, seeking exceptions to this cruel dilemma, asking for civil injunctions requiring Selective Service to reopen the case or to reclassify the registrant, seemed to Hunt of more human importance than almost anything else in his practice. This registrant got a stay of his induction order, but it would be two years before he got a formal ruling from the courts. [Citations available.]

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1970 -- The lottery makes no dent in outstanding induction orders.

The Nixon administration believed the draft was a driving factor in opposition to the war, and therefore made many efforts to make the draft less onerous. Some of these were helpful, some were useless. The October 1969 call was split and spread over the next three months, so in effect there were no new induction orders in the last two months of 1969. The lottery took effect in January 1970. Although Johnson had originally proposed the lottery, Nixon embraced it with eagerness. Hunt and his clients therefore assumed that registrants with high lottery numbers (numbers not likely to be reached) were off the hook. But the System didn't see it that way. They insisted that an induction order, once issued, remained in effect come what may. In several cases, Hunt wrote and phoned the Nixon White House to argue that these clients should have their old induction orders lifted so they could take their chances in the lottery. But the orders remained. These persistent induction orders became the central issue in many of Hunt's cases.

Hunt had his xeroxing done at a copying service in the National Press Building staffed by a sympathetic and overqualified crowd (e.g., Stephen Hess, IV, and Wilson Clark, who went on to become California Governor Jerry Brown's chief environmental aide). They asked Hunt to talk to an employee of theirs with a lottery problem: This registrant thought his birthday was May 8, with the safe Random Selection Number of 321, but the local board had him down for May 7, with the dangerously low RSN of 35. He had consistently used May 8 as his birthday and his family was convinced of it. His birth certificate said May 7. Hunt started to send for medical records, but the case for impeaching the birth certificate began to look weak. Apparently the family, which included many children, had simply made a mistake and had become attached to it by repetition over the years. However, the registrant did have high blood pressure. The local board had sent him to the Ft. Holabird AFEES several times, twice for the three-day confinement allowed to eliminate pressure-elevating drugs, and he had a clear preponderance of readings that were too high under the regulation. Hunt wrote a letter about this, the registrant got his I-Y disqualification, and his wandering birth date became moot.

In early 1970 Hunt took on another perpetual induction order. This case broke new geographical ground and required Hunt to go to Scranton. The Central Committee for Conscientious Objectors and their general counsel, Curry First, helped by finding local counsel in Scranton and giving Hunt support in Philadelphia when he got before the 3d Circuit. (Hunt, by the way, did not learn to drive till years later. His travel was by train and bus, and by air when absolutely necessary.) This registrant got a stay to protect him, but much litigation was to follow before he was safe. The full story is in his file, complete with the outrageous overreaching of an assistant U.S. attorney, the more outrageous hostility of a judge (who tried to transfer the case to get away from squarely controlling authority in the D.C. Circuit in the registrant's favor), and the pathetic comedy of trying to bring the registrant's disqualifying flat feet to the Army's attention. [Citation available.]

Also in early 1970, Hunt was retained by a soldier who was a student of Asian culture and had volunteered to go to the Army Intelligence School at Ft. Holabird, Baltimore, where he developed a conscientious objection. Legally this case went smoothly, because the U.S. attorneys in Baltimore confessed it had been mishandled and sent it back to the Army, which on reconsideration discharged him. But prior to that it was enlivened by disputed facts about command influence, manufactured evidence, etc. A sinister pall of secrecy, punctuated by flickering rumors of wiretapping and other crimes, hung over all the intelligence activities at Ft. Holabird. (See Christopher Pyle, Military Surveillance of Civilian Politics, 1967-1970 (New York: Garland Pub., 1986).) Hunt took several depositions, including one that required him to go to New Bern, North Carolina. The soldier was granted a discharge before any factual hearings were necessary in the court.

In February 1970, Hunt was unsuccessful in trying get a stay for another ROTC lieutenant, Mac Cowden, who was ordered to go on active duty at the Signal Corps school at Ft. Gordon, Augusta, Georgia, for eventual shipment to Vietnam. LT Cowden accepted his defeat with such a daredevil determination to make the Army rue the day they had ever heard of him that it is still hard in retrospect to remember that it was a defeat. By August the Army did in fact regret its triumph and started boarding LT Cowden out for "lack of leadership." Hunt's trip to Georgia, where Cowden and his wife, Marie Dick Cowden, took him to the Augusta Friends Meeting and also showed him the tattoo parlors and honky-tonks catering to the soldiers from Ft. Gordon, was one of the high points of the era. Cowden agreed he did lack leadership, that being the ability to lead men to kill, and the Army gave him a general discharge. Years later general discharges of this type were generically upgraded to honorable.

Another high point was an Act of the Commonwealth of Massachusetts, c. 174, signed by the Governor April 2, 1970, providing that no inhabitant of the Commonwealth could be forced to serve outside the United States except as authorized by the President under Article 2, section 2, of the Constitution, or by Congress under Article 1, section 8, and requiring the Massachusetts attorney general to sue in the original jurisdiction of the Supreme Court to enforce this restriction. This act did not receive much public notice, but it was encouraging.

Another ROTC lieutenant had Hunt file an action in the Eastern District of Virginia. There they ran afoul of one of the worst judges on the entire Federal bench, Hon. Oren R. Lewis, Jr. The case was successful on appeal. [Citation available.]

Hunt was also counselling with many registrants not yet facing induction orders. At some point he began to perceive a pattern: Local boards and laws and regulations were important, but when all was said and done, it was the doctors who decided who went and who stayed. A little attention to a registrant's medical claims was more useful than heroic efforts to get fairness from the draft boards.

In December 1970, Hunt was retained by a Navy doctor on Christmas leave from Vietnam. Hunt went to New York (where Phyllis Applebaum of the ACLU helped him prepare the papers) and to Newark, where he was able to get a stay of the doctor's return to Vietnam.

Thus 1970 ended on an optimistic note. Opposition to the war was growing, and some Senators were beginning to note that Mr. Johnson's war and his buildup of a half million troops in Vietnam had been made possible by cheap, convenient calls on Selective Service. Mr. Nixon's war was supposed to be smaller and Vietnamized, and Nixon was cutting draft calls and trying to raise an army on the labor market, but still there was talk of abolishing the draft. The talk was being heard where it mattered: in the U.S. Senate. And it was tied to the right issues: personal liberty and raising the cost of making war. But whatever the reasons for optimism, the war went on.

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1971 -- A Senate filibuster suspends the draft, but old induction orders never die.

The war went on, but Nixon's effort to cut back the draft was not unsuccessful. The lottery, like the same ritual of arbitrary selection in the Shirley Jackson story by that name, had isolated its victims, and there were fewer people who felt immediately threatened. So in February 1971 Hunt took the train to Buffalo and a bus on to Toronto. Hunt was much impressed with Toronto, but he got no clients from this trip. The expatriates were prospering as Canadians and were content with their decision. In his entire practice Hunt advised only one Canadian-American who was not in America facing charges and only wanted to preserve his right to come and go between the two countries.

Hunt started no new habeas corpuses in 1971, but he was swamped with work. So much so that in May he did the only dump of his anti-war practice, and one he very much regretted: a drummer in the Marine Corps Band. The drummer went on to get his discharge much quicker than any of Hunt's active clients. Apparently the Marine Corps Band was one unit elite enough to read the regulation and self-confident enough to grant a discharge without horsing around.

In April, 1971, the Supreme Court decided Ehlert v. United States, 402 U.S. 99 (1971), holding that conscientious objection claims do not result from an involuntary change of circumstances and therefore could not be filed after an induction order had issued. This struck at the heart of many of Hunt's cases, pending and otherwise. And Gillette v. United States, 401 U.S. 437 (1971), put to rest Hunt's contention in his article at 15 Catholic Lawyer (Summer 1969) 221 that the statute, properly interpreted, allowed selective conscientious objection. Though theoretically important, this turned out not to be an issue in any of Hunt's cases. All of Hunt's clients said that consideration of Vietnam had convinced them of the evil of all wars.

1971 had one major triumph: the authority to induct was actually suspended from July through September while the Senate faced a filibuster against extending the draft.

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1972 -- Nixon makes a strategic concession, no draftees to Vietnam.

Early in 1972 Hunt defended a court martial at the Washington Navy Yard for a Seventh Day Adventist who had gone on a long-term unauthorized absence because he had been forced to stand watch on Friday night, his Sabbath. This man was as honest as Billy Budd, but unlike Melville's hero, could explain himself and could articulate the Adventist's strict commitment to keeping holy the old Sabbath. And this court martial panel could listen, unlike Captain Vere, and it sent him back to duty with the lightest possible punishment. He, however, had figured out that the Navy was no place for a no-exceptions sabbatarian. After the court martial he invented his own discharge procedure: He started taking UAs of only a day or two. Each of these could bring him only a few days in the brig, but cumulatively they earned him an unfitness discharge. He was out in a matter of weeks. [This file is not available, as Hunt has not been able to find the client.]

Various international agreements, notably a 1935 Protocol on the Military Obligations of Dual Nationals, embody the long-standing American claim that immigrants and dual citizens owe military service only to the country of their residence. So General Hershey, with his characteristic pragmatism, had created Local Board 100 in the District of Columbia. This local board never got a call for men. Its only function was to hold overseas registrants' files until they moved to the United States and took on a residence with a real local board. This device worked well until Hershey's successor, Dr. Curtis Tarr, heard about it. Dr. Tarr got the notion that these registrants were all the sons of diplomats and international business moguls and, with his continuing fantasy about social leveling, started issuing calls on Local Board 100. Hunt talked to several people about this problem, but none of them wanted to retain him. Eventually the State Department intervened and got many of these induction orders withdrawn. Hunt never knew how many nationals of other sovereignties, if any, were actually inducted; he knew of at least one who was indicted for failure to show up.

By March 1972 Hunt had started sending out his resume. He had many counselling clients, but few seemed to need urgent litigation anymore, and those who did were not about to pay for it. Troop levels in Vietnam were lower and draft calls were very low. Finally on June 28, 1972, Nixon announced that draftees would not be sent to Vietnam against their will. In the six months of 1972 prior to this, Hunt had seen 30 new clients, in the six months after, he saw nine.

In one limited sense, Hunt and other anti-draft activists could say that they had seen the struggle through to victory: Henceforth draftees would not be forced to kill Vietnamese. On the legal issues, few things of importance had been decided, except the ruling in Clay, aka Ali v. United States, 403 U.S. 698 (1971), that Selective Service boards had to specify the grounds for their actions. Hunt himself had set no precedents. Only one of his clients, the Navy doctor, had had to go to Vietnam, but the victories had all been pragmatic, ad hoc victories. Flunking a physical had proved to be the best way out of the draft. Hunt decided to accept this Fabianism as the genius of the law, and to deem it a virtue.

Hunt's practice died not with a whimper but with two bangs: a Supreme Court petition and a grand jury appearance.

The Supreme Court case had started in the District of Maine, where Hunt's sister-in-law, Harriett Holmes Hunt, was assigned to defend an indictment. She had handled the case through trial and an appeal to the 1st Circuit, but both courts had refused to look at the System's procedural errors because the registrant had failed to exhaust his administrative remedies by taking an appeal within Selective Service. [Citations available.] Hunt handled the petition for certiorari. Actually, two petitions were needed, because late-breaking decisions in other cases were favorable to the registrant. But nothing availed. [Citations available.]

Judge Gignoux of the District of Maine had given this registrant the customary sentence, two years in prison to match the two years he would have served if drafted. In July 1972, after the Supreme Court refused review, the registrant handed himself in to the U.S. marshals in Portland. This coincided with Hunt's involuntary trip to Portland under the grand jury subpoena, so Hunt was able to visit the registrant in the Portland lockup and ask Emerson's question, "Why did you go to jail?" and get Thoreau's answer, "Why did you not?" After waiting eleven days in the lockup, the registrant was hauled before Judge Gignoux for final committal to prison. Gignoux released him to probation instead. The judge had come around, and had changed his policy toward draft refusers in general.

If Hunt's Supreme Court petition was a tragedy with a soft landing, the grand jury matter was a farce leaving a bad taste. The U.S. Attorney for Maine wanted to indict a certain defendant for bail jumping. Instead of relying on the official record, which should have been enough, he subpoenaed Hunt. Hunt indulged in a week of furious activity trying to quash the subpoena, lost, went to Maine, renewed his objections before Judge Gignoux, lost again, and went before the Grand Jury. Suffice to say Hunt knew little about the defendant, whom he had never even met. All that was accomplished was to drag Hunt into the belly of the whale and give him the life-altering experience of being forced to testify.

Far from being a fitting coda to Hunt's draft and military litigation, this incident was out of place. It was a breach of the usual professional distance from the realities of jails and holding cells. It required Hunt to travel against his will (at government expense, however), to wait under apparent custody in the grand jury's anteroom (the scene was ambiguous: the marshal was armed and menacing, but Hunt was simply waiting as he was accustomed to wait around courthouses), and to answer questions under oath before the grand jury. To this day Hunt does not know if there was any resolution of the matter. But he learned how good it can feel to descend the stairs of a courthouse. A few hours later he was walking the fields of his brother's farm near Skowhegan. Again he remembered Thoreau, who, after his one night in jail, went huckleberrying, "and in half an hour . . . was in the midst of a huckleberry field, on one of our highest hills, two miles off, and then the State was nowhere to be seen." For three and a half years the government had done its worst, but a remnant of Israel had been saved. On that farm in Maine, in July 1972, the United States seemed remote and irrelevant.

But in Vietnam the United States was neither remote nor irrelevant, and had yet two more years of bombing and burning before the bloodshed came to its inevitable end. The draft continued till July 1973.

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What did Hunt learn?

-- This litigation would not have been possible without those who signed the papers as local counsel. Hunt is grateful to all of them.

-- These files show the importance of judges, especially judges like Hon. John Lewis Smith, Jr., in D.C., and the Hon. Oren Lewis in the Eastern District of Virginia, Alexandria Division, who were not about to give any of Hunt's clients anything. But good judges make less of a record, and Hunt was pleased to learn that the federal bench is largely made up of good judges. Hunt's idea of a good judge at this time was one who kept his courtroom orderly and courteous, and could reject an argument without nastiness. (When Hunt later practiced criminal law this standard would be preempted by sentencing policies. A criminal lawyer is glad to have the most obnoxious fool on the bench if it means his client will get a lighter sentence.) All the judges in Baltimore, and almost all of them elsewhere, were paragons of courtesy.

-- Money was a constant irritant in Hunt's practice. The law is labor intensive and most of these cases required travel. Only a few of his clients had adequate financial resources. Hunt lived with his mother and sister, who were very helpful, so he never faced any personal sacrifice, but he wasn't getting rich. His highest income fighting the draft was less than half of what he had made working for the government. Time magazine said some lawyers were making money in such practices, but Hunt knew none of them.

-- General Hershey understood that he ran a Selective Service System. The United States was not about to bear the astronomical cost of universal service and he knew it. He also recognized the power of the draft for what he called "channeling," as when he channeled into the school systems a flood of new teachers by offering them occupational deferments. It was not General Hershey's idea to grasp at the egalitarian chimera by abolishing student deferments and occupational deferments.

-- Hunt's admiration for General Hershey may have been sardonic, but it was genuine. General Hershey had designed the Selective Service System to work with low visibility. For a quarter century, it delivered a flow of manpower as needed and kept protest and resistance diffuse. He had done this outside the legal culture that dominates bureaucratic thinking. It does not detract from General Hershey's creativity that his system fell over when it encountered widespread resistance and a little legal scrutiny.

-- Hunt's clients were overwhelmingly middle-class (and mostly but not all white, and of course all male). This may explain why Hunt never emphasized the idea that the draft was discriminatory along simple economic or social lines. At each annual appropriation hearing, Representative Mendel Rivers would ask General Hershey what percentage of draftees were African-American. The General could always reply with a figure near the national average for the American population. This was because the physical, mental, and arrest-record rules excluded enough of the poor to balance the exclusion of the articulate, the savvy, and the few who could stay in school till 26. Moreover, when the monthly call was divided among draft boards, each local board got credit for all men registered there who were in the services, including officers and reenlisted careerists. Thus the inner city D.C. boards had lower calls than the suburban boards.

These exclusions were not balanced in quality, however. The likelihood that a given objective physical condition in a reluctant draftee would be documented and recognized increased in direct proportion to his family's wealth. Similarly, the likelihood that the chaotic and informal local boards would recognize any other legitimate deferment -- hardship, critical employment, etc. -- increased the higher the registrant's social status.

The perennial fantasy of the draft as a social leveller could never be even approximated as long as it was limited to healthy people, and to young people, or as long as no one was drafted to be an officer. There is nothing egalitarian about life in the services. Nor is it true that everyone's time is of equal value. Perhaps the cruelest impact of the draft was on young men upwardly mobile from disadvantaged backgrounds, for whom years of uncertainty and two years of service at the start of their lives could mean the loss of badly needed education and training.

-- One often sees statements wildly exaggerating the connection between the draft and anti-war dissent. For instance, Charles R. Morris writes, "When draft call-ups were ended in 1971, the campus demonstrations came to an abrupt end." A Time of Passion; America 1960-1980 (New York, Harper & Row, 1984), page 135. Both sides of his correlation are pure fantasy. Nixon did not announce that draftees would not be sent to Vietnam till mid-1972, and the draft continued into 1973. Campus demonstrations did not come to an abrupt end on those dates or on any other dates. Opposition to the war grew consistently throughout the Vietnam era. Any attempt at correlating the draft with demonstrations would founder on the peak of 382,010 inductions in 1966, well before massive protest had materialized, and the steady growth of both active and passive opposition to the war throughout the years when the draft was being cut back. (Selective Service's web page shows the annual numbers of inductions.) The largest demonstrations in American history, the Nuclear Freeze demonstrations in the early 1980s, were at a time of no draft at all.

-- Did litigation such as Hunt's in any way shorten or handicap the war? No. Did it make the draft more fair? No. Did it accomplish any social good, other than helping a handful of individuals, and witnessing to the enduring reluctance of some Americans to be pushed around? No. But the fact remains that while most of the United States yielded to a colossal folly, these men and others like them stood their ground and resisted. Let Clio smile upon them.

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This is an abridgment of the overall finding aid on deposit at the Swarthmore College Peace Collection. For more information, please consult the files there, or call or email Hunt.

Gaillard T. Hunt
(inactive in D.C. and N.Y. bars)
8909 Grant Street
Bethesda, Maryland 20817
301-564-6059
gthunt@mdo.net
Return to Hunt's home page.