In Brief— A review of the history and the author’s experiences as a draft lawyer during the Vietnam War.
It is said that old men make the wars, but young men fight them. While that is generally true, it doesn’t always hold. The Vietnam War, or what is known in Vietnam as “The American War,” was a war that America took on out of the mistaken belief that if Vietnam fell to the Communists, all of Southeast Asia would fall like dominoes. Moreover, it was a war that was taken on largely by middle-aged men many of whom bore the memories and scars of World War II, not old men who had no concept of the sheer incomprehensible awfulness and destructiveness of war. Not like the “chickenhawks” who dragged America into the Iraq and Afghan Wars.
But this is not about the men who make wars, but about me and the lawyers like me who used the law to oppose the “American War” in Southeast Asia. However, before I relate my personal experience, I strongly urge you to read Meeting With the Enemy: Vietnam from a Vietnamese Perspective by Camillo Bica, professor of philosophy at the School of Visual Arts in New York. You will come to understand that the scars of that war still exist over forty years later.
Before I became involved in draft and military law, I read about France’s war in Indochina, and Bernard Fall’s critical articles about the escalation of American involvement in what we refer to as the Vietnam War. I realized that we were involving ourselves in a civil war, that Vietnam and China had frequent bloody clashes in the area and that Ho Chi Minh was a great admirer of America’s democracy.
Why, then, would the Americans take over when France was defeated by the Viet Minh (North Vietnam)? Unfortunately, the Americans in power were convinced that Communism and China were going to absorb all of Asia. They were locked in the Cold War mentality that dominated the American world-view. That narrow view precluded their thinking more broadly and realistically about Vietnamese history. What began under Eisenhower as a small group of American advisors to the corrupt South Vietnamese government, grew into the full-blown Vietnam War under Presidents Kennedy, Johnson and Nixon.
As a result of my reading and thinking about America’s involvement in a civil war, when I wasn’t counseling indigents on standard legal issues (landlord-tenant, rights of minors, etc.), I sat in with the draft counselors at the Los Angeles Free Clinic. Not only was I getting to exercise my values counseling indigents, I was learning Selective Service law from some of the best lawyers in the field. Thus, when I was laid off from my job of thirteen years at NBC when cigarette advertising was eliminated, I was quickly hired by a law firm practicing draft and military law. It was the height of the Vietnam War. During the day, I handled draft and military cases for clients able to pay; evenings were spent advising young men at the Free Clinic.
Of the more than six hundred young men I saved from the killing fields of Vietnam—other counselors around the country had records equal to or better than mine— four cases stand out in my mind.
- When a young Arizona cop became appalled at the brutality and racism of fellow officers and quit, his superiors notified the Selective Service System that he was no longer entitled to a deferment. He was sent a notice to report for a physical exam. He contacted me. Because of a disqualifying medical condition discovered by our doctor, he was reclassified 4-F: medically not qualified.
- An army helicopter door gunner went AWOL and came to see me in the hope I could keep him out of the military clink. He told me that his unit was regularly operating in Cambodia…before it was revealed that U.S. forces were in Cambodia. I not only kept him out of prison but I got him out of the army.
- A young man who had come to me thought he knew more than I did and quit before I could help him. Not surprisingly, he was drafted and unwillingly found himself in uniform. Oops! Apologizing profusely, he called and asked me to help him. I got him out.
- Finally, the Selective Service System still needed warm bodies and they realized that the Selective Service law was expiring. In its infinite wisdom, congress renewed the draft law, but the proponents forgot one small detail in the original: nobody could be drafted within ninety days of the enactment. It became part of the new law.
- Lo and behold, into my office walked Carl Bohn who had just been drafted within the ninety-day grace period. It so happened that we had a bright Harvard law student intern intimately familiar with the draft law. He pointed out that Bohn had been illegally drafted. It goes without saying that our firm sued the Selective Service System for a violation of its own law. We lost in the Federal District Court and on appeal, so we petitioned Supreme Court Justice William O. Douglas for relief based on the grounds that Bohn would suffer irreparable harm if he were to be drafted. Agreeing with us and the ACLU that had also filed suit, Justice Douglas stopped all drafting in seven southern California counties. Talk about losing the battle but winning the war!
With law firms around the country using our theory and filing their own cases, the Selective Service System flailed about in an effort to correct the mistake, but they only made it worse. President Nixon (yes, Virginia, he hadn’t yet resigned in disgrace) put the Selective Service System out of its misery and instituted an all-volunteer army. As planned, we put ourselves out of business. The firm I was with turned to drug defense law. But that’s another story.
One day in the mid-1980’s I was browsing in A Change of Hobbit fantasy/sci-fi bookstore in Santa Monica (now no longer in business, I’m sorry to say) when I noticed on the check-out counter a sign soliciting information on the draft during the Vietnam War. I mentioned to Ms. Gottlieb, the owner who was at the counter, that I had been a draft lawyer. The next thing I knew, I was in her office being recorded about my experiences.
The book, “Hell No, We Won’t Go!” by Sherry Gershon Gottlieb was published by Viking in 1991. If you’re interested, the book is still available through Amazon, and my interview is a small part of the much bigger story of draft resistance during the dreadful years of that war. It’s a story worth reading, particularly in view of America’s costly involvement in Iraq and Afghanistan. We will never learn.