nuary 16, 197(1
THE MICHIGAN DAILY
inuary 16, 1970 THE MICHIGAN DAILY
3
..............::.ANTI-WAR PROTESTERS:
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GIs to appeal dishonorable discharges
G
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WASHINGTON (P') - Civil
liberties lawyers are, moving to
overturn undesirable discharges
meted out by the Army to sol-
diers engaging in antiwar ac-
tivities.
These lawyers say a soldier
cannot be given a less than
honorable discharge because of
his political views - that the
discharge must be based on a
man's military record.
Sources in the antiwar move-
ment have charged for some
time the Army has embarked
quietly on a path to prune po-
litical troublemakers from its
ranks by discharging them on
unsuitability grounds.
Asked about this, the Army
denied flatly such instructions
had been sent to commanders.
David Rein, a lawyers for two
ex-soldiers who received un-
desirable discharges, said he
doubts there is any directive
from Army headquarters, but
spoke of "a general notion that
this is a way to handle the situ-
ation without making too big a
fuss."
An undesirable discharge can
be serious blight on a man's fu-
ture, often barring his changes
for a good job in civilian life.
THE
AUlTHORITY
The GI Civil Liberties De-
fense Committee of New York
has charged that:
"By giving undesirable dis-
charges to GIs who have been
brave enough to stand up for
their constitutional rights in
spite of continued intimidation,
harassment, and confinement,
the Army has admitted that
they refuse to allow GIs the
same rights as civilians."
This committee, whose hon-
orary chairman is Lord Bert-
rand Russell, describes its pur-
pose as defending the constitu-
tional rights of American citi-
zens in uniform. It has obtained
legal counsel for servicemen
who claim their rights were
violated by military superiors.
Nobody is certain how many
soldiers have been put out of
Army with undesirable dis-
charges after overtly demon-
strating antiwar and politically
radical views.
However, a number of cases
have' come into the open. Rein
says he is preparing appeals
seeking honorable discharges
for former Pvts. Joseph F. Cole
and Eugene J. Ridder, formerly
stationed at Fort Jackson, S.C.
Rudder and Cole were among
eight GIs hit by the Army with
serious charges last spring as a
result of an antiwar meeting
outside a barrack. The charges
later were dropped.
Meanwhile, Atlanta attorney
Peter A. Rindskopf says he will
appeal a similar undesirable
discharge ordered last year for
Pfc. Dennis Davis, editor of an
underground antiwar n'ewspaper
caled "The Last Harasu" at Fort
Gordon, Ga.
Just last month, the GI Civil
Liberties Defense Committee
said, authorities at Fort Mc-
Clellan, Ala., notified Sgt. Lewis
A. Delano he would be handed
an undesirable discharge for
"unsuitability due to apathy,
defective attitudes, and inabili-
ty to expend effort construc-
tively."
A Vietnam veteran, Delano
will be given a hearing before
an Army board, possibly this
month.
Like Davis, Delano has been
the editor of an underground
antiwar paper, "Left Face." He
also is described as a leader of
a Fort McClellan group which
has named itself GIs-WAC's
(*._
United Against the War in
Vietnam.
Meanwhile, an Armed Forces
Disciplinary Control Board is
preparing to hear charges
against an off-post coffee house
maintained by antiwar civilians
in Tacoma, Wash. near the
Army's Fort Lewis and the Air
Force's McChord Air Force
Base.
The hearing, scheduled for
Jan. 22. could lead to an official
declaration that the coffee
house, "The Shelter Half," is
off limits to servicemen.
This is the first known move
by military authorities against
such coffee houses dotted around
the country near major bases.
Pentagon officials disclaim
knowledge of any Washington-
directed offensive against the
antiwar social centers. saying
local commanders are responsi-
ble for ;uch matters.
Books. The law and Dr. Spock
(Continued from Page 5)
with conspiracy, not aiding or
abetting draft resistors, and all
predicted a great hearing on the
war. In fact, most lawyers knew
that would not be the case, and
the editorial writers were foolish
to try and construe it as such.
Miss Mitford flayed them un-
mercifully for that, but she was
under the same mistaken impres-
sion (why elsa commit herself to a
book of this magnitude before the
trial started) and was unwilling,
to own up to it.I
HERE REMAINED one major
issue which Miss Mitford seems
to have struck upon with some
perception: the role of the jury in
a criminal-and political-trial.
Prof. Sax, in an article in the
Yale Review quoted at length by
Miss Mitford, outlined the liberal
approach to the problem. The
question may be phrased in terms
of a "right to civil disobedience,"
Sax noted, but it is hardly that
simple. Sax argued for the right
of a jury to decide criminal cases
-especially when the powers that
brought about the prosecution
stand to gain by a guilty verdict-
on the basis of their own con-
sciences rather than on law or
fact.
This "additional right of ap-
peal" to community feeling is an
additional safeguard against tyr-
annical, government, a commodity'
which cannot be in too great sup-
ply. Referring to a classic case in
English law, a Member of Parlia-
ment Sax quotes says a seditious
libel acquittal was due to "the ex-
cellence in our constitution, which
provided a check against the in-
fluence of bad judges,. in bad
times."
"Let him be considered as a
criminal by the general govern-
ment, yet only his fellow-citizens
can convict him," Sax quoted a
speaker at the 1788 Massachusetts
Constitutional Convention. "They
are his jury, and if they pro-
nounce him innocent, not all the
powers of Congress can hurt him;
and innocent they certainly will
pronounce him, if the supposed
law he resisted was an act of
usurpation."t
T THE TIME Sax wrote this
it seemed both irrelevant and
novel. Miss Mitford settled the
first point while the First Circuit
Court of Appeals handled the
second.
In her most significant contri-
bution to the controversy around
the Spock trial, Miss Mitford
showed through interviews with
three jurors that even so hostile
a jury as that which Spock and
his colleagues faced could be won
over by exactly the arguments Sax
outlined.
The only professional man on
the jury, an architect, told Miss
Mitford after the trial that he
"sympathized strongly with the
defendants-I detest the Vietnam
war. Also to some extent I think
there is unfairness in the draft
law. But it was put so clearly by
the judge. It was a law viola-
tion..
"If the judge had said, 'If you
find they were justified, find them
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" TIE RiOD ENDS
i not guilty.' it would have been
beautiful."
Another juror who spoke about
the trial later said. "Of course,
you wonder if you made the right
decision; but the way the judge
charged us, there was no choice
..You can't have ,iuries deciding
whether laws are right-there are
certain laws on the books."
And the last told Miss Mitford:
"Like Raskin, I think'it's a sense-
less war . . . The government
didn't have a strong case. Up to
the judge's charge I would have
. found them not guilty."
Up to the judge's charge. Two
of the three jurors who spoke
made it abundantly clear that the
judge's charge was the decidng
factor in giving the verdict. Enter
the First Circuit Court of Appeals.
THE MAJORITY opinion of the
court that overturned the con-
victions is generally regarded by
libertarians as a very bad decision
since it upheld the validity of the
conspiracy doctrine ,as applied in
this case. Civil libertarians find
much more favor in the minority
opinion delivered by Judge Frank
Coffin (no relation to the defend-
ant) which placed the First
Amendment bef o r e government
policy.
. .
But Coffin's opinion is far from
a libertarian's dream. If the gov-
ernment had sought and lion con-
victions for the substantive crimes
of aiding and abetting draft re-
sistance, Coffin may well have
sided'with the government.
And the majority decision, de-
spite its failure to protect free
speech, does some remarkable
things, such as declaring that cri-
ticism of the wuar is not illegal ,just'
because it impedes the govern-
ment's war effort.
But this is only a pleasant tid-
bit. Much more important, more
encompassing even than Coffin's
dissent, was their decision on the
role of the jury that Sax rightly
declared a vindication of his own
position.
HIE CURTruled that all the
convictions should be overturn-
ed (although they might need re-
trial) because presiding Judge
Francis Ford improperly charged
the jury before it went into de-
liberation.
The principle is the same one
that directed Sax, although the
court is not so directly political
as Sax.
The function of jury nullifi-
cation was called -""tempering
rules of law"-and was advocated
for the same reason that the rule
of law was advocated in the first
place - for giving idividuals the
greatest possible protection against
government.
But Miss Mitford will have none
of this. She calls, rather, for an
end to all political trials. She
realizes the absurdity, but persists:
While calling on prosecutors
not to prosecute may seem. a
little like urging lions to stop
eating Christians, it is likely
that if enough people were
moved to concern themselves
with political trials everywhere,
. . prosecutors, who are after
all only cogs in the political
system, would be forced to call
a halt.
Faced with the convincing evi-
dence she had of the potential
success of' Sax's approach to po-
litical harassment, it is dismaying
that Miss Mitford chose to take
so Utopian a view.
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