Hofstra Law Review Volume 32 | Issue 2 Article 2 2003 Why Progressives Lost the War When They Lost the Draft Diane H. Mazur Follow this and additional works at: http://scholarlycommons.law.hofstra.edu/hlr Part of the Law Commons Recommended Citation Mazur, Diane H. (2003) "Why Progressives Lost the War When They Lost the Draft," Hofstra Law Review: Vol. 32: Iss. 2, Article 2. Available at: http://scholarlycommons.law.hofstra.edu/hlr/vol32/iss2/2 This document is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law Review by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact [email protected]. Mazur: Why Progressives Lost the War When They Lost the Draft WHY PROGRESSIVES LOST THE WAR WHEN THEY LOST THE DRAFT Diane H. Mazur* INTRODUCTION It was a fair question. At a Department of Defense ("DOD") press conference in January 2003, Secretary of Defense Donald Rumsfeld was asked to comment on a recent congressional proposal to establish a draft for national service, both military and civilian.' Representative Charles Rangel of New York was the sponsor of the Universal National Service Act of 2003, a bill designed "to provide for the common defense by requiring that all young persons in the United States, including women, perform a period of military service or a period of civilian service in furtherance of the national defense and homeland security.' 2 Rangel had first publicized his proposal for compulsory national service in a New Year's Eve editorial in the New York Times. 3 As the United States prepared for armed conflict in Iraq, his editorial theme was one of shared sacrifice. Speaking to politicians whose children were almost entirely insulated from military service, Rangel wrote: "Those who would lead us into war have the obligation to support an all-out mobilization of Americans for the war effort, including mandatory national service that asks something of us all."4 * Research Foundation Professor of Law, University of Florida Levin College of Law. Aircraft and munitions maintenance officer, U.S. Air Force, 1979-83. 1. See U.S. Department of Defense, News Transcript, DoD News Briefing: Secretary Rurnsfeld and Gen. Myers (Jan. 7, 2003), at http://www.defenselink.mil/news/Jan2003/t0l072003_tOlO7sd.html [hereinafter Rumsfeld News Briefing]. 2. Universal National Service Act of 2003, H.R. 163, 108th Cong. (2003). Senator Ernest Hollings of South Carolina introduced counterpart legislation in the Senate. See Universal National Service Act of 2003, S. 89, 108th Cong. (2003). 3. See Charles B. Rangel, Bring Back the Draft,N.Y. TIMES, Dec. 31,2002, at A 19. 4. Id. Published by Scholarly Commons at Hofstra Law, 2003 1 Hofstra Law Review, Vol. 32, Iss. 2 [2003], Art. 2 HOFSTRA LA W REVIEW [Vol. 32:553 Secretary Rumsfeld's response to the reporter's question about mandatory national service was bewildering in its irrationality. Rumsfeld invoked the unfairness of the Vietnam-era military draft, which permitted numerous exemptions and deferments from service, but he failed to mention that most of those exemptions and deferments- particularly the controversial college deferment-were no longer available under contemporary draft rules.5 Certainly Rumsfeld was aware that selective service law had changed significantly since the height of the Vietnam conflict. Rumsfeld also stretched the truth in characterizing all members of the military then on active duty as volunteers, knowing that he had issued "stop-loss",6 orders that same day to prevent servicemembers from leaving the military even though they had completed their agreed-upon term of service or had qualified for retirement, 7 and also knowing that many reservists had already been 5. Current draft law, if activated, would provide only a limited postponement of induction for men attending college, in most cases just until the end of a semester already in progress: Any person who while satisfactorily pursuing a full-time course of instruction at a college, university, or similar institution is ordered to report for induction under this title (sections 451 to 471 a of this Appendix), shall, upon the appropriate facts being presented to the local board, have his induction postponed (A) until the end of the semester or term, or academic year in the case of his last academic year, or (B) until he ceases satisfactorily to pursue such course of instruction, whichever is the earlier. 50 U.S.C. app. § 456(i)(2) (2000). See generally Military Selective Service Act, 50 U.S.C. app. §§451-471a (2000); Selective Service System, 32 C.F.R. §§ 1602-1699 (2003). An extended, multiple-year deferment for the entire length of an undergraduate education has not been available since 1971. See Amendments to the Military Selective Service Act of 1967, Pub. L. No. 92-129, §§ 101(a)(17)-(18), (20), 85 Stat. 348, 350-51 (1971) (repealing the Vietnam-era student deferment). At the height of the Vietnam conflict, selective service law automatically deferred a college student from the draft throughout his undergraduate education, "until such person completes the requirements for his baccalaureate degree, fails to pursue satisfactorily a full-time course of instruction, or attains the twenty-fourth anniversary of the date of his birth, whichever first occurs." See Amendments to the Universal Military Training and Service Act, Pub. L. No. 90-40, § 6, 81 Stat. 100, 102 (1967). Before 1967, deferments were also generally available for continued graduate study. See Universal Military Training and Service Act, Pub. L. No. 82-51, § l(n)(3), 65 Stat 75, 84 (1951) (permitting "deferment from [military] training and service of any category or categories of students for such periods of time as [the President] may deem appropriate"). 6. The President has the authority to "suspend any provision of law relating to promotion, retirement, or separation applicable to any member of the armed forces who the President determines is essential to the national security of the United States." 10 U.S.C. § 12305(a) (2000). The President's authority to "stop-loss" by keeping servicemembers on active duty who would otherwise be entitled to leave has been delegated to the Secretary of Defense. Exec. Order No. 12,728, 55 Fed. Reg. 35,029 (Aug. 22, 1990), as amended by Exec. Order No. 13,286(38), 68 Fed. Reg. 10,626 (Feb. 28, 2003). 7. See Sandra Jontz & Lisa Burgess, Marines Enact Stop-Loss Plan For All; Some GIs Also Held in Place, EUR. & PAC. STARS & STRIPES, Jan. 9, 2003, available at http://www.estripes.com (affecting "roughly 14,000 Marines who thought they would be separating or retiring in the near future"). Shortly thereafter the Army and the Air Force also issued stop-loss orders that http://scholarlycommons.law.hofstra.edu/hlr/vol32/iss2/2 2 Mazur: Why Progressives Lost the War When They Lost the Draft 2003] WHY PROGRESSIVES LOST THE WAR involuntarily extended on active duty into a second year, the longest reserve call-ups since the Vietnam War.8 Most inexplicably, his visceral reaction to the possibility of a draft caused him to disparage the service of millions of veterans who had been drafted into service to the United States over the last half-century. It seemed that Rumsfeld had temporarily lost his mind: We're not going to reimplement a draft. There is no need for it at all. The disadvantages of using compulsion to bring into the armed forces the men and women needed are notable. The disadvantages to the individuals so brought in are notable. If you think back to when we had the draft, people were brought in; they were paid some fraction of what they could make in the civilian manpower market because they were without choices. Big categories were exempted-people that were in college, people that were teaching, people that were married. It varied from time to time, but there were all kinds of exemptions. And what was left was sucked into the intake, trained for a period of months, and then went out, adding no value, no advantage, really, to the United States armed services over any sustained period of time, because the churning that took place, it took enormous amount of effort in terms of training, and then they were gone. .... We have people serving today-God bless 'em-because they volunteered. They want to be doing what it is they're doing. involuntarily extended terms of service. See Lisa Burgess, CENTCOM Stop Loss Put Into Effect, EUR. & PAC. STARS & STRIPES, Feb. 21, 2003, available at http://www.estripes.com; Sandra Jontz, Air Force Announces Stop Loss For 99 Jobs, EUR. & PAC. STARS & STRIPES, Mar. 15, 2003, available at http://www.estripes.com. The services began to phase out stop-loss orders and release servicemembers for separation and retirement after the most active period of ground combat in Iraq. See Lisa Burgess, Air Force Lifts Last of Skills-BasedStop-Loss Restrictions, EUR. & PAC. STARS & STRIPES, June 24, 2003, available at http://www.estripes.com. Stars and Stripes has been continually published for a United States military audience throughout the world since World War II, and it is an excellent source for understanding issues of concern to servicemembers. For a brief history of its publication, see http://stripes.com/standing/aboutstripes.html (last visited Apr. 22, 2004). The newspaper's web site provides access to an archive of staff-written articles back to mid- 2000 through a Boolean search function. 8. See Kemba J. Dunham et al., Reporting for Duty: Massive Call-Up of Reserves Disrupts Careers, Workplaces; 'Prove Yourself All Over Again,' WALL ST, J., Feb.