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Diedre Cobb was a fairly typical member of the reserves. She had tried college at the New Mexico Military Institute and other colleges. As she became increasingly frustrated with school, she dropped out and began looking for something meaningful. She first considered joining the Peace Corps. When she went to the U.S. Army recruiting office, she believed that the Army, as it purports, was an organization focused on furthering world peace through military strength and protecting U.S. borders. “However,” Cobb explains in her application for conscientious objector discharge, “my beliefs have changed in that, through a combination of gaining an insider’s perspective, reading, and self-examination, I now recognize the irony of trying to obtain peace through waging war.” Seeking help, Cobb called the Center on Conscience & War based in Washington, D.C. CCW helps to operate the GI Rights Hotline. Under military regulations, a conscientious objector (CO) is a person who objects to a personal participation in war, based on a sincere religious, moral, or ethical belief. This definition was honed over the years of the military draft, from October 1940 until mid-1973. There is an additional element for those who join today’s volunteer military: they must show they have had a change of heart since joining. Many people sign up with only a vague idea of war and what they believe; in many cases, it can be difficult to sort out when they actually became conscientious objectors. Many individuals, not objecting to all wars but to the current war, find themselves with little recourse. Often these cases are the most difficult — although their beliefs are just as strong, there is no legal recognition for them. They must seek other discharges or risk going to jail. The GI Rights Hotline is a national consortium of about a dozen organizations. CCW is one of the principals. The hotline has answered questions from members of the military about their rights since the early 1980s. Today, the hotline receives about 4,000 calls a month in addition to e-mails. CCW has supported the rights of conscientious objectors to war since the day after the creation of the Selective Service System in 1940. It has offered advice on draft law and has lobbied for the rights of conscientious objectors. Cobb asked CCW for help with her application for CO status. CCW initially reviewed the application and made suggestions. Months later, in the fall of 2003, her application was denied. CCW referred her to James Klimaski of Klimaski & Associates in Washington. Klimaski, an infantry officer in the Army during Vietnam from 1969 to 1971, has an extensive military practice. In Vietnam, he was one of the soldiers who opposed the war while in the service. Upon discharge, he went to Antioch Law School in Washington. Antioch, a school with the then-unusual system of primarily using clinical training, has become the David A. Clarke School of Law of the University of the District of Columbia. “The military does everything it possibly can to discourage COs procedurally. While taking them seriously, it doesn’t want to admit that COs really exist. That is why so few are approved,” he explains. For this reason he suggested that Cobb explore alternative discharges. Klimaski represented her, asking her to pay only the costs involved. Klimaski regularly provides pro bono help for CCW. “I recognize that the legal system perpetuates injustice because of the expense of participation in the system. Most people can’t afford a lawyer,” he says. Cobb is part of a long history of conscientious objectors. Many settlers, such as Quakers, Brethren, Amish, and Mennonites, came to the Americas specifically for the freedom not to fight wars. This right was considered so fundamental it was originally listed in the Bill of Rights: “The right of the people to keep and bear arms shall not be infringed, a well-armed and well-regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.” In reality, during each war some would, as a matter of faith or principle, refuse to kill. For each war, the right has been handled differently. But since World War II the right has been a part of all draft law and military regulations. During World War I an estimated 3,500 people were granted CO status. Hundreds of others were denied and went, instead, to jail. Eighteen received death sentences (which were later commuted). Before World War II, the military determined CO status based entirely on church membership. To be recognized as a CO you had to be a member of a church — such as Quakers, Mennonites, Amish, and Brethren — that objected to participation in all wars. With the reinstatement of the draft in October 1940, a civilian agency — the Selective Service Administration — was responsible for determining who was a CO. World War II was also the first war to allow alternative service for conscientious objectors. More than 37,000 conscientious objectors served this way. The Korean War saw approximately 3,500. By the Vietnam War, more than 90 percent of draftees who applied for CO status — more than 171,000 — received it. The end of the Vietnam War brought the end of the draft, but it did not bring an end to people seeking CO status. This time, of course, those seeking CO status were enlisted men and women. Since Vietnam, the military has had the sole job of determining CO status. Today, to obtain such a discharge you must show a change of heart: your belief that you cannot participate in war must have crystallized after you joined. But the right to a CO discharge, unlike CO status during a draft, is not statutory but based on military regulation and thus can be taken away with little fanfare. This is exactly what happened during the 1991 Gulf War, when the Army granted a mere 111 CO discharges. The Army issued an across-the-board stop-loss order prohibiting many discharges and separations. In Iraq and Afghanistan today, service members who would normally be discharged after a tour of duty or retirement are being prohibited from seeking a discharge. At the same time, the military is not currently prohibiting a CO discharge. During the Gulf War, though, those who would have sought a CO discharge were prohibited. As a result, more than 2,500 military members went to jail rather than participate in the war. After the Gulf War, an increasing number of people joined the military, reserves and National Guard without thinking about combat. The last war had lasted a few weeks during their childhood, and the last draft happened before they were born. As a result, many people who would have never considered the military as a career option enlisted. Sept. 11, 2001, and the subsequent invasions of Afghanistan and Iraq forced many to rethink the military. Before Sept. 11, CCW received approximately one or two inquiries about CO discharge per month. After Sept. 11, the number increased to one or two a week. In the months leading up to the invasion of Iraq, the calls grew to one or two a day. Today, CCW gets two or three calls a day. Many of them come from people who believe a CO discharge is quick and easy and are easily persuaded to look at other options. Others believe — as they are incorrectly told by their commanding officers, sergeants, chaplains and others — that a CO discharge is a dishonorable discharge, which would mean they would lose all of their benefits and have a felony on their record. Yet many COs are willing to lose everything rather than to kill, and contact CCW regardless of the consequences. They are surprised to learn that a CO discharge is fully honorable. While most of the work can be done with the trained counselors at CCW and the rest of the GI Rights Hotline, some matters cannot. If a CO application is wrongfully denied, one recourse is a habeas petition. Sometimes the service member, usually based on erroneous advice, goes AWOL to work on his claim. A longtime source of aid for CCW, the GI Rights Hotline, and COs in general is Eugene Fidell. Fidell is a partner at Feldesman Tucker Leifer Fidell, a 27-attorney firm founded in Washington in the 1970s. Fidell began his legal career as a judge advocate general in the Coast Guard in the late 1960s. “A lawyer who doesn’t have some pro bono involvement is missing out on one of the most rewarding aspects of practice, whether it is representing clients or involvement with organizations,” says Fidell, president and co-founder of the National Institute of Military Justice, and an expert in military law. Fidell notes, “The kind of work we are involved in runs across the gamut of federal law: criminal law, administrative law, Constitutional law and Tucker Act work results in a very diverse practice.” His firm has represented, among others, a reservist who was arrested and held in jail for nearly a week without being brought before a judge or a magistrate. After the firm contacted the military and the local jail, the client was released to Fort Knox for a discharge. It has not been decided whether a complaint for damages will be filed against the county jail for violating his constitutional right to be brought before a judge or magistrate. Fidell has always been available for quick calls from CCW as well as for some of the more complicated legal issues surrounding COs and members of the military. “Issues relating to COs are going to be with us even if a draft is not reinstated,” he says. And the calls to CCW support that contention: approximately 1,000 calls, on all sorts of subjects, per month. While not all calls demand an attorney, an ever-growing number do. The military process takes a year or more. The habeas process takes another three to six months, and sometimes there is an appeal. Diedre Cobb is still trying for a discharge. J.E. McNeil, a member of the D.C. Bar since 1979, is the executive director of the Center on Conscience & War.

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