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Feb 18

“Hell No, We Won’t Go!”

In Brief— A review of the history and the author’s experiences as a draft lawyer during the Vietnam War.

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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.

Afterword—

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.

8 comments

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  1. Carl Boe

    Selective service is a bit of a misnomer. A volunteer army is selective; a draft conscription cutting across all classes is not. Although I did not serve, and serving in an unjust war is evil, a major problem now evident in the USA is the division between the military and the rest of us, who sit at distance and wonder what in the hell is happening. I cannot help but think that congress would make different decisions if there were universal conscription. But this is probably naive. That policy has not reformed Israel.

    1. Don Bay

      Your observation is perceptive and on the money. Though I have shifted my position closer to being pacifistic—unrealistic, I realize—neither the draft nor the all-volunteer military solves the problem. The problem remains the willingness of nations to resort to armed conflict rather than negotiation.

      I have given considerable thought to the draft and, although I would do it again, those with money will always find a way to avoid being put in harm’s way while the poor and uneducated will continue to be the cannon fodder. The partial answer to that inequity is to reach ALL high school students with the horrors of war, but that requires the cooperation of the schools, an unlikely prospect. We were allowed to speak at some schools but not at others. This deserves considerably more discussion, and this is not the forum for that.

      As to the all-volunteer military, that poses a very real threat to democracy, particularly with the religious influence we see today as admirably presented by Mikey Weinstein. The military has spread its tentacles into all parts of America and into all parts of society. It’s quite possible that if critical mass is reached, the military can openly stage a coup rather than just influence the chief executive. That may sound paranoid, but it’s entirely possible in today’s world…even in the United States.

  2. Dave Meyers

    Mr. Bay, because I am a night owl and rarely retire to my bed before 1 or 2 a.m. here in the U.S. Mountain Time Zone, I have the distinct pleasure of reading your posts before most do, and therefore retain my position as often the first person to comment. This may open me to critical examination, but I’ll continue to take my chances.

    My father served with distinction and was decorated for his service in the South Pacific during WWII as a Marine. I often asked him about his experiences when I was young and inspired by some recent John Wayne movie, but I rarely got much of an answer other than, “war is not very much fun”.
    I don’t remember that my father was particularly political and would be hard-pressed to define his positions, even now. However, I do remember hearing him, while I was trying to fall asleep at night, shouted at the TV news cast in reaction to Vietnam War reports. “Damn fools, why the Hell are we even there!”
    Not so much then, but now that reaction sort of surprises me. My Father, tried to reenlist for the Korean War after surviving vicious battles in WWII, but the fact that two younger siblings and I had been born by that time made him ineligible for that conflict.
    Growing up, it was clear that my Father had a no-nonsense military approach to life and we kids often felt that he was more like a commanding officer than not. JUMP… ”how high Sir?” I would have assumed that he would have been a supporter of the Vietnam conflict.
    Perhaps the reason for his critical opinion of that war was that I had reached draft age by 1966 and his declarations that, “war is not much fun”, may have really been his unwillingness to give up his oldest son to the military at that time. But I’ve come to believe that he really thought that the war was wrong and a colossal folly.
    A strange series of serendipitous events found me in the Army Reserve from 1969 to 1975 as an illustrator and thereby avoiding the draft and missing out on all the fun in Vietnam. I saw a bit of disappointment in my Fathers eyes when I didn’t become a Marine, but it was abundantly apparent that he was pleased that I had not been thrust into harms way.
    So, I am pleased to report that I escaped that mess and that my Father was NOT one of those middle aged men that you spoke of.
    Your service to spare other young men from that fate was and is most admirable.

    1. Don Bay

      Like you, I was lucky to have served in the military where and how I did. I volunteered for the draft to get away from home. Not the wisest decision I ever made, but the luck was that I was one of the very few in my training group to be sent to Germany while the majority were sent to a purportedly quiet, post-hot-war Korea. Trained as a radar operator for anti-aicraft artillery, I was sent by the army to an outfit that had no artillery. Rather than waste good personnel, they then sent me to school to learn did-de-dum (Morse) code. I had a permanent pass in my pocket and the best of all possible worlds until a stupid sergeant decided he didn’t like me. Thanks to his ineptitude, I wound up on the track team until I rotated home and was discharged. My service to my country entitled me to the G.I. Bill and a good education at UCLA. Is it any wonder that I have a well-earned contempt for the military where their motto was “Don’t think. Let us do your thinking for you.”

      By contrast, your Dad had to deal with the horrors of war. Though he may have been disappointed that you didn’t become a Marine, it is obvious that he was relieved that you didn’t have to face what he did.

      Regarding the work I did in keeping young men out of Vietnam’s killing fields, see what I have to say to Carl Boe regarding the draft. Suffice it say that although I would do it again, I have doubts about whether a draft is the answer. Certainly, an all-volunteer military is not the answer. Still I feel I performed a genuine service in helping to bring about a too-long-delayed peace.

  3. Shelley Stockwell-Nicholas

    Bravo for your efforts, beliefs and writing ability.
    Thank you for sharing.

    1. Don Bay

      It’s largely a matter of being in the right place at the right time…along with personal values. Thanks for the kind words.

  4. Donna

    I was fortunate in that my father was exempted from serving in WWII, my husband served in the Korean War, but only after the fighting had stopped, and my son was too young to serve in the Vietnam War.

    However, I was old enough during the Vietnam War that I knew it was morally wrong and that we had no business being there. I was 30 years old by then, yet this was the first time I publicly expressed my opposition to what my government was doing. I went to meetings, signed petitions and marched in a protest parade following the Kent State killings and the Invasion of Cambodia.

    Two years ago, my husband and I were fortunate to be a part of a tour that went to Vietnam, Laos, and Cambodia. Bica is correct in that the scars of that war still exist. It’s puzzling to me now, that the invasion of Cambodia touched off such protests in the US when I learned that the US had been carpet bombing Cambodia for five years! Laos, being part of the Ho Chi Minh Trail was bombed along with Vietnam and Cambodia. In all three countries, we saw bomb craters still there after 50 years. We saw results of mines still in the earth that exploded, leaving an unsuspecting farmer or a child maimed or killed. We saw pictures of the jungle defoliated by Agent Orange and statistics of deaths and birth defects generations later among Vietnamese and G.I.s that were exposed to it. The scars of war extend to the American military men, some of whom have never recovered, mentally or physically, from fighting in that war.

    So, Don, good for you in keeping some of those men from being sent to fight in a far away country in a war that the US just abandoned. And all for what? I hope that some of those men are the ones who will now object to our military involvement in Afghanistan, Iraq, etc.

    1. Don Bay

      Donna makes an excellent point in saying that the wrongheaded tragedy of Vietnam is still revealing its ugliness all these years after the official end of the war. The people of Vietnam and the other Southeast Asian countries who survived America’s depredations still carry the marks of that ugly war. In the United States, those who served have carried their own scars, both physical and psychological, and they will until their last hours of life.

      Donna, her husband and the relatively few individuals who want to know about the impact of the Vietnam War are to be commended for having an open mind about the grave mistake America made and continues to make as it deems itself the world’s policeman. So, thank you, Donna, for letting us know what the experience was like for you.

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