[TIMELINE] Selective Training and Service Act of 1940
- Selective Training and Service Act of 1940
The Selective Training and Service Act of 1940, also known as the Burke-Wadsworth Act, 54 Stat. 885 was passed by the Congress of the United States on September 14, 1940, becoming the first peacetime conscription in United States history when President Franklin D. Roosevelt signed it into law two days later. This Selective Service Act required that men between the ages of 21 and 35 register with local draft boards. Later, when the U.S. entered World War II, all men aged 18 to 45 were made liable for military service, and all men aged 18 to 65 were required to register.
Effects of the Act
Signed into law by Franklin Roosevelt in 1940, the Act established the first peace-time draft in United States history. Under the Selective Training and Service Act, all American males between twenty-one and thirty-five years of age registered for the draft. The government selected men through a lottery system. If drafted, a man served for twelve months. According to the Selective Training and Service Act's provisions, drafted soldiers had to remain in the United States or in United States possessions or territories elsewhere in the world. The act provided that not more than 900,000 men were to be in training at any one time, and it limited service to 12 months.
Section 5(g) of the Act contained a provision for conscientious objection:
Nothing contained in this Act shall be constructed to require any person to be subject to combatant training and service in the land and naval forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.
Any such person claiming such exemption from combatant training and service because of such conscientious objections whose claim is sustained by the local draft board shall, if he is inducted into the land or naval forces under this Act, be assigned to noncombatant service as defined by the President, or shall if he is found to be conscientiously opposed to participation in such noncombatant service, in lieu of such induction, be assigned to work of national importance under civilian direction.
The draft began in October 1940. By the early summer of 1941, President Franklin Roosevelt asked the U.S. Congress to extend the term of duty for the draftees beyond twelve months. On August 12, the United States House of Representatives approved the extension by a single vote. As Karl R. Bendetson said, "Mr. Rayburn banged the gavel at a critical moment and declared the Bill had passed." The Senate approved it by a wider margin, and Roosevelt signed the bill into law on August 18.
Many of the soldiers drafted in October 1940 threatened to desert once the original twelve months of their service was up. Many of these men painted the letters "O," "H," "I," and "O" (OHIO) on the walls of their barracks in protest. These letters were an acronym for "Over the hill in October," which meant that the men intended to desert upon the end of their twelve months of duty. Desertions did occur, but they were not widespread. Following the Japanese Attack on Pearl Harbor, Hawaii, on 7 December 1941, thousands of American men and women swelled the United States' military's ranks by volunteering for service, and thousands more by conscription.
After the United States entered World War II, a new selective service act made men between 18 and 45 liable for military service and required all men between 18 and 65 to register. The terminal point of service was extended to two years after the war. From 1940 until 1947when the wartime selective service act expired after extensions by Congressover 10,000,000 men were inducted.
In 1948, a new selective service act was passed that required all men aged 19 to 26 to register and that made men aged 19 to 26 liable for 21 months' service, which would be followed by 5 years of reserve duty.
Though the United States halted conscription in 1973, the Selective Service remains as a means to register American males upon reaching the age of 18 as a contingency should the measure be reintroduced. The registration requirement was suspended in April 1975, but reinstituted in 1980. In the past, married people could be deferred, though marital status no longer affects priority of draft call.
One Tough Case
In a unique career spanning six-plus decades, Eleanor Jackson Piel '43 has been a scrappy defender of the disenfranchised.
By Bonnie Azab Powell. Oakland freelancer Bonnie Azab Powell has written about the technology business for Red Herring, the New York Times, and Corporate Board Member, and about food politics for the Washington Post, Mother Jones, Meatpaper, and other publications.
To hear Eleanor Jackson Piel tell it, she didn't set out to be a pioneer. She was just ambitious and stubborn. Women weren't supposed to go to law school, so she did.
Big firms didn't want her, so she worked for herself. "With no one to monitor me and tell me I couldn't, I've taken all kinds of cases and issues," she says. "I've done it all! And it's been wonderful."
Eighty-eight years old and still actively practicing lawPiel has flouted convention all her life. Not only did she enter law school at a time when few women pursued a graduate degree, but she chose criminal law and proceeded to work alone. Piel is also unusual for her unwillingness to specialize in one area of criminal law. She's taken on civil rights cases, class-action suits for gender discrimination, and, in her later years, death penalty appeals. But she has also handled the odd case of patent infringement (over the Movado watch), anarchy, and libel (including for Nobel Peace Laureate Linus Pauling; she lost). She has argued before the U.S. Supreme Court four times"but I only won once," she is quick to point out.
Says Linda Greenhouse, Yale Law School's Knight Distinguished Journalist in Residence, "Back then, women lawyers mostly got channeled into trusts and estates and matrimonial issues. Very few chose the gritty business of representing convicted murderers." Greenhouse, who covered the Supreme Court for the New York Times until last year, first met the diminutive, elegant Piel back in 1971, while a cub reporter assigned to a murder-by-arson case. "Eleanor has devoted her energies to the most downtrodden, despised, friendless segment of our society."
Not surprisingly, Piel has collected a bottomless treasure chest of stories, and she relates them with a delightful Audrey Hepburnesque diction. They reveal that Piel is no accidental activisther ambition has always been to make a difference in the world, and her stubbornness originates from a fierce, idealistic desire to see that justice is served for everyone.
Chosen by circumstances
Piel's profound distaste for injustice came naturally. Born in Southern California, she encountered prejudice firsthand at a young age. Her mother was a concert pianist and "a confirmed traditional Anglo-Saxon," as Piel puts it, who'd married a Jew and may have wished she hadn't. Her father, a Lithuanian who immigrated to New York at 15, had overcome tuberculosis to become a doctor. When fellow members of a Santa Monica beach club he'd belonged to for five year learned he was Jewish, they asked him to leave. "He sued; I think he lost, but I never really knew the facts," she says.
After reading the Old Testament at her Christian maternal grandmother's home, the young Eleanor told all her friends that she was one of God's chosen people. "My mother was just horrified," she recalls, and told her never again to talk about being Jewish. "I was upset about the fact that people didn't like Jews, when I was half Jewish, and then I had my mother being anti-Semitic," Piel says. "It just didn't seem fair." From that moment on, she thinks, she began to take the side of victims of discrimination.
At first, she planned to expose injustice through journalism. Piel transferred to Berkeley as a senior after three years at UCLA: She'd run for student office and lost, and as a result had also lost her job with the Daily Bruin. "I had to leavethe newspaper was my life," she laughs. After graduation, she considered journalism school, but her father wouldn't pay for Columbia. Others in her class were going to law school, but some of them said she wasn't smart enough, she recalls indignantly. "So of course I applied," she chuckles. "Imagine this being my motivation! Because Barney Schapiro said I couldn't!"
Boalt initially turned her down. But after she excelled at the University of Southern California for a year, Boalt accepted her as a transfer student, and she was the only woman to graduate in the law school's 1943 class of roughly a dozen.
Wanting to be a labor lawyer, she applied to a big San Francisco firm, but was rejected. Through Boalt, she got a job as a law clerk to Judge Louis E. Goodman of the U.S. District Court in San Francisco. Goodman had specifically been looking for a female clerk, but not for politically-correct reasons. "He thought if he had a woman she would stay there forever," says Piel.
She and Goodman hit it off, and often engaged in heated debates about constitutional law. And in the summer of 1944, Piel got a front-row seat at a civil rights case that would prove to be a historical landmark and a touchstone for the idealistic young lawyer.
Every year, Humboldt County asked a San Francisco District Court judge to come up to rule on a few cases, usually minor ones, in the small town of Eureka, about six hours north of San Francisco. Piel drove Goodman up, expecting a few hours of morning work followed by lazy summer barbecues. Instead, they walked into a shameful case brought by the federal government in a town with a long history of anti-Asian prejudice that had been greatly exacerbated by the war.
In United States v. Masaaki Kuwabara, 27 Nisei (American-born citizens of Japanese ancestry) were arraigned for failing to appear for a draft physicalthe first step in the conscription process. Like 120,000 other people of Japanese descent, they had been taken from their U.S. homes after Pearl Harbor and placed in internment camps. This particular group, however, were among those classified as especially "disloyal" and incarcerated behind barbed wire the nearby Tule Lake Segregation Center.
Piel was shocked that the men's refusal to fight for a country that had found them disloyal could result in felony charges. And her boss, she says, was dismayed that he was expected to rubber-stamp the proceedings. So, after an intense huddle with Piel, he decided against it. He called a sympathetic lawyer friend in the area to mount a genuine defense, and told Piel to find supporting case law. Not so easy without a law library.
In a copy of the Selective Training and Service Actthe 1940 law (and America's first-ever peacetime conscription) that required adult men to register with local draft boards they found something on which to hang the case: The law's prefatory Declaration of Policy stated that "in a free society the obligations and privileges of military training and service should be shared generally in accordance with a fair and just system of selective service." Arguing that the case against the Nisei was neither fair nor just and that they had been deprived of due process, Goodman dismissed the indictment. The 27 men were sent back to Tule Lake. The decision, which was not appealed, was the only one of its kind issued that was favorable to the Japanese-Americans.
Goodman, who was Jewish, took the opportunity to caution the government against "overzealousness in an attempt to reach, via the criminal process, those whom we may regard as undesirable citizens." As Eric L. Muller and Daniel K. Inouye write in their book, Free to Die for Their Country: The Story of the Japanese American Draft Resisters in World War II, "Behind this defense of the Tule Lake `undesirables' can be seen the passionate views of an immigrant's son on the role of tolerance in good American citizenship." And, it can be said, an inspiration for the passionate views of another Jewish immigrant's daughter.
The freedom to fight
In 1945, Piel traded her clerkship for a job with California Senator Sheridan Downey in Washington, DC. She hated it. What she saw of politics in action offended her idealism. "It did not fit my ideal of wonderful government or make me want to participate in it," she says. "I got very discouraged and disillusioned."
She next jumped at the chance to go to Japan to work with the American group taking part in the international war-crimes tribunal. But this also proved disappointing. Housed in a drafty YWCA in bombed-out Tokyo, she caught diphtheria and worked mainly as a "geisha, going to parties and ballroom dancing" with the assembled dignitaries. (Among her beaus was Brigadier General John Profumo, then chief of staff to the British Mission in Japan and as yet unsullied by the "Profumo Affair." "He was quite a good dancer," Piel recalls wryly.) But the work bored her and she felt it unfair that the emperor of Japan, whose orders the war-crimes defendants had merely carried out, was not being charged. She ended up resigning and going to work for the Economic and Scientific Section, a group under General Douglas MacArthur's command, which was charged with helping to rebuild the Japanese economy.
In 1948 she returned to Los Angeles and opened a one-woman office. Over the next several years, she handled miscellaneous cases, and then rented an office in the suite of former California Attorney General Robert Kenny, who had represented the Hollywood Tenthe screenwriters blacklisted during the McCarthy era. At one of Kenny's many parties, she met Gerard Piel, publisher of Scientific American, and chairman of its board of editors.
They were married in 1955; Piel went to court the morning of the wedding, earning her the headline "Three Youths Freed and Lawyer Wed" in the Los Angeles Times. Shortly afterward, Piel moved to New York City to join her husband. They were together until his death in 2004; she "has been at sea ever since," she says wistfully. The marriage was a mutually beneficial partnership: He went with her to Mississippi where she initiated her U.S. Supreme Court case, Adickes v. Kress, and edited her briefs; she accompanied him on his world travels, visiting scientists and creating 11 foreign editions of Scientific American.
A lawyer for tumultuous times
Piel jumped feet first into the political turmoil of the 60s by taking on the defense of William Epton in the first anarchy trial in New York since 1925. Epton, a Maoist communist and labor organizer, was charged with anarchy and inciting riot for inflammatory statements he made during the Harlem Riots of 1964. Piel lost the case but became known as the go-to lawyer for political radicals; she next represented Black Panther Fred Fernandez, charged with, among other things, advocating the overthrow of the New York state government. Piel took the case all the way to the U.S. Supreme Court, but lost.
In 1964, appalled by the murder of a civil-rights worker in Philadelphia whose Upper West Side mother she knew, Piel joined a Lawyer's Guild expedition to Mississippi. While in Hattiesburg, she stumbled across a case in which a Kress lunch-counter waitress had refused to serve a young, white freedom-school teacher named Sandra Adickes because she was with her black students, whose orders the woman had taken.
Incensed by intimidationshe and Gerard were followed by the FBI as well as "threatened by rednecks"Piel filed a civil lawsuit against Kress in New York, where the company was based and Adickes was a resident. She lost the case twice in New York courts before the Supreme Court agreed to hear it. In the fall of 1969, she argued the case before new Chief Justice Warren Burger and won. Adickes settled out of court with Kress, donating the money she received from the settlement to the Southern Conference Educational Fund.
Other civil rights cases Piel handled involved gender discrimination. In 1969 she lobbied for a 13-year-old female math genius who wanted to attend the all-boy Stuyvesant High School. In the 1980s she represented the appeal of 50 women professors at the Albert Einstein College of Medicine in a class-action suit alleging that they were not paid salaries equal to male faculty. Einstein settled the suit with a lump-sum payment. Less successfully, she represented Cynthia Fisher, a biology professor who claimed she was denied tenure by Vassar College because she was married: That victory was reversed on appeal.
Tackling the death penalty
Piel volunteered for her first death penalty appeal in 1982, after reading in the New York Times that there were more than 2,000 people on death row in Americait is now more than 3,000many of whom wanted to appeal but had no lawyer. She called the Florida legal center mentioned in the story and was assigned William Riley Jent v. State of Florida.
"That case," she says. was a real lulu.
And that it was, from start to finish. In 1979, a young woman was strangled, doused with gasoline, and set on fire in a game preserve in Pasco County, about 60 miles from Tampa. Her body was not immediately identified, and the police and prosecutors fabricated an identity for her and a guilty case around Earnie Miller, a roofer and suspected marijuana grower, and his visiting half-brother, "outlaw biker" Bill Jent.
As chronicled in David Von Drehle's 2006 book Among the Lowest of the Dead: The Culture of Capital Punishment, the case presented a truly breathtaking breach of justice. At every step, the Pasco County police and prosecutors intimidated and even jailed witnesses, suppressed evidence, and even tried to prevent the body from being properly identified. (The real victim's family was pretty sure her boyfriend had killed her, not the two brothers.) Piel got the appeal just a month before the brothers were to be executed, and there wasn't time to spare: The state of Florida was eager to resume capital punishment after Furman v. Georgia, and for political reasons wanted to start with white death-row inmates.
Working with another female lawyer, representing Miller, Piel threw every resource she had into freeing the brothers, includingby chancethe persuasive powers of her husband. Finding himself on a plane with a former Washington Post managing editor, he convinced the man to have the Post assign an investigative reporter. The reporter was able to get a fingerprint match that identified the corpse as the missing woman with the suspicious paramourhe was suspected of having torched another female friend. The Florida newspapers ate up the new evidence. Piel got the television news show 20-20 to cover the case, and not long after, the judge issued a writ of habeas corpus granting the brothers a new trial.
One day before the execution was scheduled, Piel admits to losing her composure in court and tearing up. It was a rare breach of her self-control. "She's very tough in the courtroom," says Leon Friedman, the Joseph Kushner Distinguished Professor of Civil Liberties Law at Hofstra University, who has known Piel since the `60s. "She will not take any shit from anybody, whether it's opposing counsel or the judges."
In 1988, after two more long years in jail, Miller and Jent ended up making a bizarre deal: In return for their immediate release from prison, they agreed to plea guilty to murder. The state offered no compensation for their ordeal. Piel and her co-counselor were there waiting with new suits that they had bought for the brothers. At the press conference that followed, reported the St. Peterburg Times, Piel distributed a seven-page statement proclaiming their innocence despite the guilty plea.
"It was a travesty," she says, still angry. "But they were freed."
As was Warith Habib Abdal, whom Piel had first represented for manslaughter in the 1970s. Abdalthen known as Vincent Jenkinswas later convicted of rape in 1983. Although she was not his lawyer then, he wrote to her for help in the appeal, and she agreed. In 1991, after learning that there was still physical evidence from the rape trial, she approached Barry Scheck '74 of the Innocence Project to help her obtain the best DNA testing. Piel paid $3,000 out of her own pocket for the tests, but DNA science was still in its infancy, and the results were inconclusive. Still, she battled on. A long 10 years after Abdal first contacted her, findings based on more sophisticated DNA tests led to the conviction being thrown out.
"It's hard to tell how I feel," Abdal told the New York Times in 1999 upon his release, "because your heart is like your toe. It grows skin on it and it gets hard. But people like Mrs. Piel soften it up."
Piel is modest about her accomplishments, but her friends and colleagues, such as Leon Friedman, are eager to pick up the slack. "Here's someone who, on her own, has handled the most unsympathetic casesagainst the government or others where the opposing side has unlimited resourcesand sometimes she's won, which is incredible," says Friedman. "Think about it. Big criminal trials are so difficult. She does all her own exhibits, all the scutwork, everything. She's amazing."
And Piel is still working. In early March she was handling, she estimates, about 16 habeas cases assigned to her by the Second Circuit Court of Appeals. Talking about them, she sounds as animated and as passionate as any fresh-faced young defense attorney. Then she stops herself.
"I do go on," she says apologetically. When her listener reassures her that she's not once been boring during several hours' worth of chatting, Piel admits with a touch of pride: "I've had a fascinating life, I think."
No argument there, counselor.
The Japanese American Cases - A Bigger Disaster than We Realized
Eric L. Muller
University of North Carolina at Chapel Hill - School of Law
Sixty-one years ago, Eugene V. Rostow published the first major academic article on the Japanese American internment of World War II. The article's title left little doubt about Rostow's view of the Supreme Court's decisions in Hirabayashi v. United States (1943) and Korematsu v. United States (1944): The Japanese American Cases - A Disaster. Rostow's claim was that these two cases were a substantive disaster of constitutional doctrine - a fundamentally mistaken endorsement of a repressive military program.
Rostow's conceptualization of the disaster of the Japanese American cases continues to define - and, in a sense, to confine - our view of the legal history of this wartime period. There are, in fact, many more wartime Japanese American cases to remember than Korematsu and Hirabayashi. These two cases were really just one small part of a much broader program of litigation in which the government sought both to capitalize on and to reinforce the image of Japanese Americans as disloyal subversives.
This Article broadens Rostow's assessment of the Japanese American cases as a disaster by recasting both of those terms. It widens the focus of the term Japanese American cases to include stories of the many wartime Japanese American cases that the literature has slighted or forgotten. This broader view reveals that the Japanese American cases of World War II were a disaster of a different sort: a litigative debacle, in which an astonishing number of cases ended in acquittals, dismissals, stern judicial rebukes, and other repudiations of the government's legal and factual positions. The Article concludes that the overall litigative project was a misadventure in using the law - especially the criminal law - to tar a racial group with the badges of disloyalty during wartime.