There are at least 585,000 young men in this country who have broken the law by not registering for Selective Service. Of them, 13 have been indicted, four convicted, and one was put on the shelf until charges against him were dismissed in Los Angeles late yesterday. He may be the most interesting of them all.
He is David Wayte, a 21-year-old former philosophy student from Pasadena, Calif. Unlike some of the others who have been tried by the government, Wayte did not say only that he is either morally or politically oppposed to Selective Service registration. He said also that he was singled out for prosecution because he was outspoken about his noncompliance.
The numbers are on his side. What the government said, though, is that appearances can be deceiving. Since there has been no system in this country for the government to determine when a person becomes 18, the only way it knows if a young man refuses to register is if he announces it. Then it prosecutes.
Last December President Reagan authorized the Social Security Administration to give Selective Service the names of males 18 or over who have applied for a Social Security number. As soon as the two agencies collate their files, the government says it will prosecute young men who have not registered, but who have not, as they say, made a federal case of it.
The government's side of the story sounds plausible. But there is the little matter of a meeting held last April at the Pentagon in which presidential counselor Edwin Meese III and Defense Secretary Caspar Weinberger participated. According to a transcript, Meese suggested that nonregistrants be denied such federal benefits as college loans and Weinberger allowed as how it would be prudent to avoid prosecutions in such major cities--and media centers -- as New York or Washington. "Not the District of Columbia," Weinberger warned.
Wayte's lawyers contended that the government went further than this and decided to select outspoken nonregistrants for prosecution. U.S District Court Judge Terry Hatter as much as agreed six weeks ago when he made a preliminary finding that Wayte was the subject of selective prosecution and told Justice Department lawyers that it was up to them to prove otherwise. In dismissing the charges yesterday, Hatter said that the government had failed to do so.
To enforce the law is one thing; to enforce it for the purpose of silencing dissent is a violation of the letter or the spirit of the First Amendment's guarantee of free speech. Whether that is or was the intent of this administration, we may never know. Hatter, who had seen the relevant White House documents, not only ordered them turned over to Wayte's lawyers but also ordered Meese to testify. The government, citing executive privilege, balked, and its case collapsed. Prosecutors said they will appeal.
Let's leave the legal technicalities aside. The issue for Wayte was whether he went to jail. The issue for the rest of us is whether or not the government has the policy Wayte says it does and whether the policy is designed to curb dissent. If that is the case, the people have a right to know. That is as great an issue as whether a young man goes to jail for failing to register. In fact, the two are inseparable.
But the Reagan administration is more or less saying that its policy is none of our business. If this were an isolated incident, there might not be that much to worry about. But this administration is prone to secrecy. It has weakened the Freedom of Information Law and tightened government secrecy practices. As for Meese, he has proven himself to be a bull in the civil liberties china shop. He once called the American Civil Liberties Union part of the "criminals' lobby."
In one sense, we have a variation of the old McCarthy question from the 1950s and it is ironic that Meese is the target: Did you have and do you now have a policy of selective prosecution? Simply because Meese refuses to answer the question does not in itself mean that there is such a policy.
But the question is posed to the government, not an individual, and the issue does not concern some political policy, but possible illegal actions. Under those circumstances, the government cannot prosecute someone and then walk away when its motives are questioned. This may not be contempt of court, but it certainly is contempt for the people.