The first young men to be prosecuted for failure to register for the draft were those "most adamant in their refusal," a government memorandum disclosed today.
Benjamin H. Sasway, the first to be indicted, was among 70 nonregistrants whose prosecution was authorized by the Justice Department in June, according to a department attorney, David J. Kline.
Only Sasway, 21, of nearby Vista, and four others -- of an estimated 700,000 eligible men who have not registered -- have been indicted. The others are Enten Eller in Roanoke, Mark Schmucker in Cleveland, David Wayte in Pasadena, Calif., and Russell Ford in Middletown, Conn.
Justice's Kline testified in a pretrial hearing that began here today that only 70 of 183 cases referred to the department by the Selective Service System met the criteria for prosecution.
An internal memorandum written by Kline and entered into evidence said:
"Our policy is to ensure that (1) refusal is willful and (2) only persons who are the most adamant in their refusal to register will be prosecuted."
Although Kline did not give a complete breakdown, he said cases not referred for prosecution involved an 80-year-old man, several women and some fictitious names.
Sasway's attorney is trying to get the charges dismissed on grounds of selective prosecution. But Kline said that Justice, while notifying U.S. attorneys nationwide that prosecutions could proceed, deliberately did not choose cases that should be prosecuted first.
"Frankly, we expected selective prosecution hearings," said Kline, adding that he did not want to have to tell a judge that the reason for prosecution in a particular locale was "because we expected a sympathetic forum."
"We didn't want to do it; we didn't do it," Kline said.
Earlier, the government backed off its attempt to keep secret its policies and procedures in selecting draft registration cases for prosecution.
The government had considered attempting to exclude the public from at least part of the hearing because such disclosure, according to a prepared motion, "would allow those who have little regard for the law to avoid compliance while at the same time avoiding prosecution" and "provide a road map for breaking the law."
Kline's memo said "the negative aspect of the policy is that if it becomes public, its provisions may act as a disincentive, until the last possible moment, to register."
Kline also testified that, "Indeed, in the light of disclosure today, we may have to reevaluate our policy."