Potter Stewart

“ For it is they who must choose whether to run the serious risk of a criminal prosecution or submit to induction with the uncertain hope of prevailing in a habeas corpus proceeding. Yet the Court has made plain today in Clark v. Gabriel, supra, that a registrant whose exemption from service is not clear will under § 10 (b) (3) be put to just such a fateful choice. In light of Gabriel, the allowance of pre-induction review in the present case thus stands as all the more irrational and unjustified. ”

“ The section provides for review 'after the registrant has responded either affirmatively or negatively to an order to report for induction * * *.' (Emphasis added.) The remedy for one who responds affirmatively cannot, of course, be by way of 'defense to a criminal prosecution' for refusing to be inducted; the only remedy in such a case is habeas corpus, and the Senate Committee Report made quite clear Congress' understanding in this regard:
'A registrant who presents himself for induction may challenge his classification by seeking a writ of habeas corpus after this induction. ”

“ The registrant with a clear statutory exemption is precisely the one least jeopardized by the procedural limitations of § 10 (b) (3) . For, as the Government has acknowledged, 'the Department of Justice would not prosecute (such a registrant) if he refuses to be inducted, and would promptly confess error if he submits to induction and brings a habeas corpus action.' [13]
It is upon those registrants, rather, whose rights are not so clear that the burden of § 10 (b) (3) most harshly falls. ”