Of the 500,000 young men who have not registered for the draft in the last five years, only 17 have been indicted. Of that group only four have been jailed. The others have cases pending, have had dismissals or performed community service after jury convictions. In late March, when the Supreme Court became involved for the first time, dissent, conscience and free speech had a bruising day.
In a 7-to-2 decision (with Thurgood Marshall and William Brennan as the reliable two), the court ruled that David Wayte must stand trial again in his home state of California on the charge of noncompliance. What Wayte has in common with the 16 other conscientious objectors was his decision to make his protest public. The Supreme Court calls them "vocal nonregistrants."
The term vocal was left undefined. It might mean anything from shouting from the local post office rooftop, "Hell no, I won't go," to flooding the media with press releases. In fact, the decibels were nowhere that high for Wayte or the others.
Vocal meant that most of them merely wrote to public officials. To Jimmy Carter, who reinstated draft registration in 1980, Wayte sent a letter: "I decided to obey my conscience rather than your law. I did not register for your draft. I will never register for your draft. Nor will I ever cooperate with yours nor any other military system, despite the laws I might break or the consequence which may befall me."
After writing a similar letter to the Selective Service and receiving no reply, Wayte dispatched a second letter: "Last August, I wrote to inform you of my intention not to register for the draft. Well, I did not register and still plan never to do so."
Soon after, the Selective Service sent Wayte's name -- along with 132 others -- to the Justice Department for investigation and possible prosecution. Until then, the Reagan administration's policy was one of "passive enforcement." To the Reagan administration, all these resisting teen-agers were certainly a crime wave -- and, for sure, too, a threat to the national security -- but active enforcement by way of tracking down the 500,000 violators was not practical.
In July 1982, Wayte was indicted on draft resistance charges. He argues that his being public about his defiance, rather than the defiance itself, was the blip by which the government's radar noticed him. Wayte believed this kind of selective prosecution violated the right to free speech under the First Amendment.
A district court in California agreed, ruling that it was no coincidence that those being prosecuted were the ones who had spoken out: "The inference is strong that the government could have located nonvocal nonregistrants, but chose not to."
An appeals court reversed the ruling and reinstated the indictment. Four weeks ago, the Supreme Court upheld the second ruling. Justice Lewis Powell said that if Wayte's view prevailed, "the government could not constitutionally prosecute a self-reporter -- even in an active enforcement system -- unless perhaps it could prove that it would have prosecuted him without his letters. On principle, such a view would allow any criminal to obtain immunity from prosecution simply by reporting himself and claiming that he did so in order to 'protest' the law. The First Amendment confers no such immunity from prosecution."
Comparing a conscientious objector to "any criminal" is blatantly unfair. Wayte and the other 16 indicted men were motivated by religious or social convictions that cooperation with the violent methods of the military is morally wrong. They come out for a tradition of dissent, conscience and free speech that is a true strength of America in the way that weapons never will be.
Henry Thoreau wrote in "On the Duty of Civil Disobedience" that if a law "is of such a nature that it requires you to be the agent of injustice to another, then, I say, break the law. Let your life be a counter friction to stop the machine" of government.
To many, the machine of war preparation appears to be out of control, as the nation's largest-ever military buildup proceeds on schedule. Only a few dissent. The heroism of David Wayte and the other indicted draft resisters is that they are choosing to stand alone exactly when reason is being replaced by nationalistic slogans about standing tall.