Clark v. Gabriel/Concurrence Douglas

Mr. Justice DOUGLAS, concurring.

The evidence in this case, which I have set forth in an Appendix, makes plain, as the Court states, that the question whether the registrant should be classified as a conscientious objector turns on the weight and credibility of the testimony. I therefore agree that § 10(b)(3) of the Military Selective Service Act of 1967 precludes review of the action of the Board at this preinduction stage.

I would take a different view if this were a case where a registrant was moved from a CO (conscientious objector) classification to I-A because he made a speech, unpopular with the Board.

This would also be a different case if the registrant were a member of an institutionalized group, such as the Quakers, whose opposition to war was well known and the registrant, though perhaps unpopular with the Board, was a bona fide member of the group. Then, too, a Board would act in a lawless way if it moved a registrant from a CO classification to I-A and disregarding all the evidence denied him a CO classification.

But in my view it takes the extreme case where the Board can be said to flout the law, as it did in Oestereich v. Selective Service Bd., 393 U.S. 233, 89 S.Ct. 414, to warrant pre-induction review of its actions.

APPENDIX TO OPINION OF DOUGLAS, J., CONCURRING.

Charles Gabriel is 23 years old, son of a white father and Negro mother. He graduated from Berkeley High School, attended San Francisco State College for two years before being dropped; for the following year he tried to regain entrance to that College by attending its 'Extension School'; but when he was denied re-admission, he spent the next year at a City College from which he graduated. He registered with the Selective Service in 1963 at the age of 18. Two years later, at the age of 20, he applied for CO status. He was denied reclassification, and his three requests for a 'personal appearance' before the board over a nine-month period were disregarded. Finally, he was given an opportunity for a personal appearance after he complained to the State Headquarters. He was denied reclassification.

(A) Gabriel's Letter of August 13, 1965.

In 1965, after he obtained a copy of Form 150 by which a registrant files for conscientious objector status, Gabriel filled out the form and sent his local draft board an accompanying letter explaining his conscientious convictions:

'As a Negro I firmly believe the United States Government has     willfully let the Negro be deprived of his rights therefore      the debt of forced service claimed arbitrarily from all      eligible men for the purpose of fighting for the United      States rights is in the Negroes case void. Because he has not     been given the rights the United States fights for on its      citizens behalf.

'My beliefs are superior to my human relations with the U.S.     government and duties coming out of my beliefs are superior      to duties stolen from me by the U.S. government.

'I have voiced my opinions and beliefs freely. In Berkeley     H.S. in class in fall 1962 during the Cuban crisis I made a      speech against U.S. action in Cuba otherwise I haven't      bothered to record all the times I said what I thought.

'(listing activities): active CORE (1961-2) March on Wash DC     1963; Demonstrated against HUAC in Wash. D.C. 1959 I was in     and helped organize the Freedom Week Play in Berkeley H.S.      1963. Demonstrated in 1960 in support of sit-ins against     southern Wolworth Stores.

'All through my life I have been in contact with people who     did not believe in war or killing; who believed the U.S.      government and system was unjust. My parents their friends,     my friends, numerous books by liberal or leftist writers *  *      * have been things that make me what I am.'

(B) Gabriel's Official Summary of his Personal Appearance.

After his personal appearance, Gabriel filed a copy of his summary of the hearing, as provided by Selective Service regulations.

'This is a summary of my personal appearance before you on     Thursday, May 19, 1966. * *  * The youngest, forty to      forty-five years old was fairly friendly during the meeting;      the oldest seemed neutral; the other three seemed fairly      unfriendly. * *  * The oldest man referred to my letters as      'very pointed, belligerent.' I said, jokingly, that I wrote      the letters with the help of Ben Seaver and Alex Sliszka and      they should share the blame. Then there was an unfriendly     comment about Sliszka and Seaver. The youngest man read my     statement that said I was a Negro and didn't think I had my      rights. He asked if this wasn't the basis of most of my case. I said, 'No. It was only part of it.' * *  * Then one man      asked me if I was trying to 'beat the game.' *  *  * I said      that there were easier ways to avoid the draft and gave some      examples. * *  * The man who asked me to reread my written      statement said, i.e. wasn't that answer subversive. I said     'maybe so but I believe I'm right.' *  *  * The oldest man      asked me if I'd fought in high school. I answered, 'No' and     he said, 'You must have been a real good boy.' He then asked      me between two and four times to 'eradicate' the thought from      my mind that I had gotten unfair treatment from the local      board.' (C) Department of Justice Re sume.

After being denied CO status, Gabriel appealed. And as is customary in such appeals, the Justice Department conducted an investigation into the sincerity of his beliefs. The following is a re sume of the investigating officer's report.

'A representative of Berkeley High School * *  * stated that      he was a 'quiet rebel' but was mature for his age. * *  *      Another representative at Berkeley High School stated that *      *  * she recalls that he demonstrated a high regard for the      individual *  *  * and was extremely conscious of the role in      society of the American Negro. It was advised that the     registrant's mother *  *  * and step-father have been      politically active in such organizations as the Congress for      Racial Equality. * *  * A representative of the Buildings and      Grounds Department, San Francisco State College, advised that      the registrant *  *  * had a reputation of being involved in      any movement which has doings with anti-war demonstrations or      activities. This representative stated that he never actually     witnessed the registrant in these activities but it is      general knowledge among employees around the campus. * *  * An      official of the Magic Theatre, San Francisco, California      advised that *  *  * the registrant is against war and against      military service. It was further stated that the registrant     has discussed the Vietnam war and considers it unjust. * *  *      One person interviewed in San Francisco, California advised      that she has resided here in an apartment building for the      last four or five years. She stated as she recalls, a young     Negro male resided with a young woman in an apartment in this      building about a year ago. She believes this individual may     have been the registrant. * *  * A reference stated that he      has known the registrant since about 1963 *  *  * when they both were      students at San Francisco State College. * *  * He further      stated that the registrant could well be a communist,      however, they have never discussed this. He advised that he     is aware that the registrant's mother and father are very      much against war and they are active in movements which are      against war. He further stated that the registrant is also     active in these movements and organizations, however, he did      not know the names of these organizations. It was also stated     that the registrant has mentioned that he is active in      anti-war groups and he believes he has participated in      anti-war marches. * *  * Another reference stated *  *  * that      when (the registrant) went to report for his armed forces      physical examination he observed an anti-draft demonstration      occurring in front of the physical facilities and felt      compelled to take part in the demonstration, which he did.'

(D) Department of Justice Recommendation.

After conducting its investigation, the Department of Justice filed a 'recommendation' with the local board, suggesting that Gabriel be denied CO status:

'He said that he is definitely not a communist. * *  * The      registrant advised that he is, and has been, consistently      nonviolent, and that he has never been a member of any      aggressive anti-war demonstrations. He said that, although he     was a member of the Vietnam Day Committee and the War      Resistance League, and has participated in peace marches, he      has always participated in a passive or peaceful manner.'

Mr. Justice BRENNAN, Mr. Justice STEWART, and Mr. Justice WHITE concur in the judgment of the Court for the reasons stated in Mr. Justice STEWART'S dissenting opinion in Oestereich v. Selective Service Bd., 393 U.S., p. 245, 89 S.Ct., p. 421, 21 L.Ed.2d, p. 411, decided today.

Mr. Justice BLACK would note probable jurisdiction and set the case down for argument.