A Cold Wind Blowing

"If...the first few prosecutions [for violating draft registration laws] are unsuccessful, compliance with the registration requirement is liable to worsen significantly. Consequently it is imperative that the initial prosecutions be successful." --An Internal Justice Department memo dated March 2, 1982

SOUTHERN CALIFORNIA, long known for its sunny beaches and mellow populace, has developed into the intensive legal battle-ground for draft registration. In San Diego, enforcement began last June, when 21-year-old Humboldt State University student Benjamin H. Sasway was indicted. And in Los Angeles, where federal officials are now fighting to prosecute 21-year-old former Yale University student David Wayte, the whole system could come tumbling down.

In the three and a half months between Sasway's indictment and the preliminary motions in Wayte's trial, the Justice Department was on a roll. It had served up 13 indictments all over the country. It had a 3-0 court record, having sentenced Sasway to jail and two other young men to hundreds of hours of community service. Meanwhile, Selective Service officials said compliance was rising quickly. Before the indictments began, they estimated that more than 700,000 men--seven percent of all required--had failed to comply with the law. With the wave of publicity from the summer crackdown, and with some statistical legerdemain, the noncompliance figure is now officially under 500,000--maybe less than 5 percent.

But under the surface, things weren't so smooth. A memo addressed in March to a lower-level bureaucrat in the Selective Service System from an assistant attorney general in the Justice Department's Criminal Division raised some concerns over the planned method of enforcement. At that point, Selective Service had not yet cross-checked the hundreds of thousands of registration cards with the hundreds of thousands of social security files to see which males born since 1960 had not filled out their registration forms.

The system had been in place for more than two years, with no attempts at enforcement; federal officials were growing hungry for blood, and probably wanted to snap first in the summer, when colleges and protestors would be safely on vacation. But the cumber-some cross-checking would have taken too long, so they proceeded with euphemistically labeled "passive enforcement"--going only after vocal violators.

David J. Kline, the author of the memo, noted that "with the present universe of hundreds of thousands of non-registrants, the chances that a quiet non-registrant will be prosecuted is probably about the same as the chances that he will be struck by lightning." He predicted elsewhere that "the present passive identification program is liable to result in adverse judicial decisions based on defendant claims of selective prosecution."

In two of the first three cases tried, the defendants did in fact argue that they had been chosen from an illegally limited universe. But both federal judges summarily rejected the motions. When the men from Justice brought their act in October to Los Angeles, however, they encountered the difficulties Kline had prophesied seven months back--Judge Terry Hatter Jr. bought the arguments and shifted to the government the burden of proving it had acted fairly.

FEDERAL OFFICIALS clearly acted incorrectly from the start in launching passive enforcement; by cracking down on outspoken opponents only, any government invites the charge of making partial and political use of impartial institutions. Even more disturbing than such questionable action, though, is the flustered way in which leaders have responded to the charges.

When Hatter first ordered government documents turned over as evidence in the Los Angeles case, he received partial texts with sections blotted out. The New York Times described the matter thus:

"I can't say there are 18-minute gaps," the judge said, alluding to the White House tapes in the Watergate scandals of the Nixon Administration. But he added, "I'd start to read and the next page would be blank, except for a footnote."

When Hatter requested more complete texts, he was rudely rebuked by the Justice Department, which complained that his "appetite for more and more irrelevant disclosure of sensitive information has become insatiable."

The judge has encountered similar difficulties getting government witnesses to the stand. The White House eventually consented to allow Gen. Thomas K. Turnage, director of selective service, to testify--under very limited conditions. But it has blocked repeated efforts by Hatter to get testimony from Edwin Meese III, counselor to the President and apparently the high official shaping draft registration policy.

SUCH OBVIOUS PARANOIA can't help but recall the embarrassing leak last May, when a transcript of a high-level discussion on enforcement became public. In the course of the meeting, which both Meese and Turnage attended, officials discussed possible political backlash from enforcement, and one suggested targeting politically conservative and quiet regions of the country for the first few indictments. The consideration of such underhand tactics, together with the current fumbling, indicate that a lot more unsavory action may yet be revealed.

The greatest irony, of course, is that ferreting out non-registrants should so preoccupy high-level officials at all. Opinion and calculations over the benefit of registration in wartime have variously put the mobilization time saved at up to two weeks, or no time whatsoever. Last week, the release of yet another study--this one conducted by the President's own commission--indicated the latter.