ALIENS AND MILITARY SERVICE
As the Provost Marshal General says, in discussing the intricate legal situation which the legislation of May 9, 1918, was calculated in part to meet, “it was realized that, from the point of view of international law, not all aliens stood on the same footing in this country.” He analyzed the differences as follows:[129]
(a) An alien occupying a diplomatic post enjoys immunity from military service, as well as from many other burdens, for he is the representative of a foreign country, present by consent and invitation, and is protected by a number of privileges not enjoyed by a private citizen. Diplomatic privileges do not extend to consuls, as they are not diplomatic officers, but merely representatives for commercial purposes.
(b) A transitory alien friend cannot be compelled to serve other than mere police duty, for otherwise commercial intercourse would be interrupted and the person might be required to aid a country in which he is a stranger.
(c) An alien friend who is domiciled, that is to say, who is a permanent resident, can be compelled to serve, for otherwise he would receive the benefits of the government without sharing the burdens. An alien’s declaration of intention to become a citizen, though it does not make him a citizen, is conclusive evidence that he is properly to be considered a permanent resident.
(d) An alien enemy cannot be forced to serve, for otherwise he would be compelled to fight against his own country.
(e) A national of a country with which the United States has a treaty containing appropriate provisions may enjoy exemption from compulsory military service. Some of our treaties exempt all of the citizens of each of the high contracting parties. Others exempt only certain designated classes.
The situation described in paragraph (c) was the one under force of which Congress, in the Selective Service Act of May 18, 1917, based the draft “upon liability to military service of all male citizens, or male persons, not alien enemies, who have declared their intention to become citizens,” between the designated ages. As the Provost Marshal General pointed out in his first report, heretofore quoted, the exemption of alien nondeclarants would have created great injustice in the enforcement of the local quotas in states and regions disparate in the ratios of native born and aliens; therefore, in legislation of May and June, 1918, Congress changed the basis of apportionment to meet this inequity, and incidentally so that thereafter it became incumbent upon the alien to bear the burden of proof of his right to exemption.
It is fair to assume, as the Provost Marshal General said,[130]
that it was impossible for the local and district boards or any other governmental agencies independently to ascertain whether or not a registrant was a nondeclarant alien, because such an inquiry would involve a search of the records of the naturalization courts, Federal and state, throughout the entire country[131] to ascertain a negative—viz., whether a person had not declared his intention (“an obviously impossible and absurd inquiry,” as one judge has said).... The regulations and instructions required local and district boards to give every alien ... a full and fair hearing, or a full and fair opportunity to be heard, on any claim of exemption that he might have.... Local boards were authorized to inquire into the status of any registrant where they had reason to believe that the particular registrant was a nondeclarant alien and had failed through ignorance to claim exemption, and, if such were found to be the case, the boards were required to exempt him.
Legal advisory boards were established to aid registrants—the courts generally upheld the right of out-and-out aliens to exemption—moreover, in regions where there were large numbers of aliens, the local draft boards often, if not usually, included men of foreign race or descent as well as men interested in and closely familiar with the foreign-born population, who took every pains to inform the ignorant and protect them in their rights. On the whole, it is highly probable that the spirit of the law in this regard was substantially observed throughout the country. The Naturalization Bureau—virtually helpless as it was to prove or disprove claims of alleged nondeclarants—had referred to it more than 50,000 cases.