Best Practices Concerning Conscientious Objectors, 2003

Center on Conscience and War

Report to the United Nations High Commissioner for Human Rights

on the United States of America

In 1940 the US Congress passed a conscription law which included this wording:

Nothing contained in this title shall be construed to require any person to be subject to combatant training and service in the armed forces of the US who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.

(Military Selective Service Act; 50 USC App. 450 et seq.)

At that time it was a very progressive law- it was the first time the principle of alternative service for conscientious objectors (COs) was written into law. While the practical implementation was difficult initially, and the definition quite narrow, it was a significant step forward for CO rights at that time.

COs in earlier centuries faced huge obstacles to refuse to fight. Whole congregations of Peace Churches fled country after country seeking a place where they would not be forced to take up arms for the state. This led many Peace Churches to the Americas. There the concept of not forcing people to fight who were conscientiously opposed began to take root. The charters of Pennsylvania, Rhode Island, Massachusetts, and Virginia all recognized that right.

But rights on paper are often challenged by the fervor of the moment. Many Quakers, Mennonites, Brethren and others were beaten, robbed and driven from the colonies for refusing to join the American Revolution. While the Second Amendment of the United States Constitution as drafted provided for conscientious objection, it was deleted before passage.

Fortunately for most COs in the United States, there were no drafts in the early years of the United States.. During the Civil War there was a draft but there was no provision for COs. A draftee could, however, pay for someone else to take their place. Many COs saw this as little better than fighting themselves and so refused. Once again they lost property, were beaten and driven from their homes. Many were jailed and some shot.

In World War I things were a little better. Members of the historic Peace Churches were allowed to be non-combatants. COs of any other church or members of Peace Churches who could not participate at all in the military were sentenced to death or military prison. While all of the death sentences were commuted, 18 of the imprisoned COs died under the cruel conditions of prison.

In August of 1940, with World War II clearly on the horizon, Congress voted to establish the first peace time draft in the history of the United States. As part of the fierce lobbying effort a new concept was provided: rather than jail, COs would be allowed to do alternative civilian service of national importance. In addition, the definition of conscientious objection was enlarged to include anyone who's objection to war in any form was based on a sincerely held religious belief. This was the first statutory recognition of conscientious objection.

The US Supreme Court did expand the definition to include ethical and moral beliefs as well as religious beliefs. (Welsh v. US, 398 US 333). But US law has never included selective conscientious objection: objection to participation in certain wars which is, of course, the religious position held by most Christian churches and other faiths.

There are those who believe that the right of conscientious objection is protected by the 1st amendment to the US Constitution, which guarantees freedom of religion without government interference, but the courts have never held that to be the case. They have consistently stated that conscientious objection is a matter of legislative grace, citing the law passed in 1940, and have upheld that law and upheld its limited protections for COs.

Today, many people believe that conscientious objection is an outmoded concept in these days of an all volunteer military. Indeed, conscription has definitely been on the wane in the last few years. Italy, France and others have ended or will shortly end their drafts. But nearly 100 countries still have conscription. And many others, including the United States, have economic drafts--where the military is viewed as the only real choice to escape poverty. So it still arises as an issue with young men and women who join the military and then realize because of an event or a deeper understanding of their own faith that they cannot kill.

CONSCIENTIOUS OBJECTORS IN THE MILITARY

In 1962 the Department of Defense issued a directive that conscientious objectors should be discharged from the military or assigned to non-combat duties, according to their belief. (DOD Directive 1300.6) This policy is based on the conscription law, and while COs have been discharged since that time, the numbers and success rates have varied widely over the years. The process is a lengthy one, usually taking between 6 months and a year, and during that time the CO remains a member of the military and is required to obey all lawful orders. This obviously can, and often does, create awkward and difficult situations for many COs whose claims are pending. There are some protections in military regulations for COs, for example they are to be assigned duties that conflict as little as possible with their CO beliefs, but the military mission is the 1st priority.

Many COs whose claims are pending report harassment, receiving orders that present an ethical dilemma for them, or getting disciplined for arbitrary reasons.

For example, one recent CO's processing was going smoothly, and her application had been recommended for approval at every step along the way, and she was awaiting final approval. One day she called us very upset because she was being punished for showing disrespect to an officer. What had she done? She was nice, and they interpreted that as sarcasm, which was therefore disrespectful! She had the option of refusing the punishment, and if she refused, they had the option of court-martialing her, which would have suspended any action on her CO discharge, and taken precedence over her CO discharge. She accepted the punishment, and several weeks later learned that her CO discharge had been approved. When she received all of her paperwork during her final out-processing, she learned that her command had received word of her approval the same day that she was accused of showing disrespect!

But the primary problem for COs in the military is that this is DOD policy, not mandated by law. During the Gulf War, the Pentagon issued Stop-Loss orders which suspended all discharges, including CO discharges. Conscientious objectors were forced to either go to war or go to jail. Thousands went AWOL (absent without leave).

During the current wars with Iraq and Afghanistan, COs have been treated better: Their claims have been processed, and most of those who requested rear detachment (so they would not have to go to war while their claims were pending) were not deployed. But, for almost 2 years now, we have lived with the fear that CO processing would be suspended by administrative action-- which always remains a possibility until Congress establishes this as a right under the law. In fact, many COs are now learning that their claims have been summarily denied.

CONSCIENCE AND CONSCRIPTION

Currently, no one is being conscripted in the US, but draft registration is required of male citizens and residents between the ages of 18 and 26. Registration as a CO is not possible; the government claims that since no one is being drafted, it is an unnecessary waste of resources to maintain records pertaining to draft classifications. Government publicity about the registration says there is no draft, and those running the Selective Service do not understand how registration could present a problem of conscience for anyone. But even the US Supreme Court has said that registration has one purpose only: to register people to be drafted and sent to war! (Rostker v. Goldberg, 1981)

In fact, Presidents repeatedly have used draft registration as a military threat and, although failure to register is a violation of the law, Selective Service officials have interpreted high levels of compliance as support for conscription and government military policy.

Because of this, many young men cannot, in good conscience, register. They believe that registration is an action of complicity, indicating a willingness to be used by the government for whatever military ventures the government may undertake. They refuse to register even knowing that they risk a criminal record and jail time (Max. 5 years and $250,000) rather than send that message.

The government has not prosecuted any non-registrant for almost 20 years. Instead they have passed a number of laws that deny various ‘benefits’ to those who cannot verify that they have registered. Nonregistrants cannot get financial aid or job training through the federal government, or most federal jobs. Non-citizens cannot get citizenship if they are required to be registered with Selective Service and didn't register.

The Selective Service System has lobbied various state legislatures to pass similar laws. Many states now require registration to obtain financial aid for college. Some even require registration to attend a state funded school. Even some local jurisdictions deny government employment to non-registrants.

But the biggest problem recently has been the linkage with drivers licenses. Many states now require registration to obtain a drivers license or government issued photo ID. Since the United States is so automobile dependant, this constitutes a substantial hardship for the vast majority of people. (Outside of New York City and San Francisco there are very few places in the US where one could easily get around without relying on a car.) But it's not just driving that is restricted for those who cannot in good conscience register for the draft. One cannot even buy a plane or train ticket in the US without a photo ID. Or cash a check in most places. Or even enter some buildings. This additional price of following one's conscience has become quite high in many parts of the US.

CONSCIENTIOUS OBJECTION TO MILITARY TAXATION

Currently there is no accommodation of those whose conscience does not allow them to pay for war. Those who cannot pay for war must either live in poverty so their income is not taxable, or violate the law by refusing to pay the tax, or violate their conscience. And since taxes are automatically withheld from most paychecks, refusing to pay is not easy.

While those who do not pay for the military are rarely put in jail, they are subjected to a variety of consequences, such as property being seized by the government (including bank accounts, automobiles and houses) as well as having their credit reports tarnished.

Legislation is pending that would alleviate this dilemma for many people (The Religious Freedom Peace Tax Fund Bill), but until it is passed these COs will continue to endure these hardships. But many willingly and openly refuse to pay for the military, and use the various forums that result as an opportunity to witness to the government, bank employees and the public, about their beliefs.

The Center on Conscience and War was founded in 1940 by churches to be an advocate for Conscientious Objectors facing conscription. The Center continues to support COs, and also helps those in the military seeking discharge, and provides general education about issues of conscience and war.

Report compiled by J. E. McNeil (nisbco@nisbc.org or nisbco@irg.org)