Former National Security Agency Director Michael Hayden was one of 10 retired military leaders that filed an amicus brief on Wednesday in support of declaring a U.S. military draft unconstitutional.

The document was submitted in support of a petition filed by the National Coalition for Men (NCM) which is represented by the American Civil Liberties Union (ACLU) in January. The petition alleges that the U.S. Selective Service violates the constitution because only men are required to register for a possible draft. Men who do not register with the Selective Service are subject to penalties which may include prosecution. The brief co-submitted by Hayden implies that the Selective Service registration process is outdated.

“Requiring both women and men to register for the selective service is a long overdue next step,” the amicus brief read. “Indeed, the male-only selective service requirement is the last vestige of an American service force that no longer exists.”

Hayden served as NSA Director from 1999 to 2005, serving in the administrations of both former Presidents Bill Clinton and George W. Bush. In 2006, Hayden became the director of the Central Intelligence Agency.

A challenge to the constitutionality of the Selective Service’s registration of men exclusively was filed in 1981. The Supreme Court ruled in favor of the Selective Service. At the time, women were prohibited from occupying combat roles in the U.S. military. In its ruling, the Supreme Court said that since “the purpose of registration was to prepare for a draft of combat troops,” women did not need to register with the Selective Service.

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Women are not required to register with the U.S. Selective Service, but men who fail to register could face serious penalties.

In 2013, the Pentagon rescinded the ban on women fighting in combat. While the petition asks the Supreme Court to revisit its 1981 decision, it does not seek to allow women to register in the Selective Service.

The ACLU described the current men-only registration limitations of the Selective Service as “overt sex discrimination.”

“The Military Selective Service Act is based on outdated and sexist notions of women’s and men’s abilities to serve in the military, regardless of individual ability,” said ACLU Women’s Rights Project Director Ria Tabacco Mar in a January statement. “Limiting registration to men treats women as unfit for this obligation of citizenship and reflects the outmoded belief that men aren’t qualified to be caregivers in the event of a draft. Such sex stereotypes have no place in our federal law.”

Men who fail to register for the Selective Service will not be eligible for federal student aid, federal job training or federal employment. Immigrants that do not sign up for the Selective Service will be prohibited from gaining U.S. citizenship.

A March 2020 report from the National Commission on Military, National, and Public Service that Selective Service requirements be extended to include both men and women between the ages of 18 and 26.

“This is a necessary and fair step, making it possible to draw on the talent of a unified Nation in a time of national emergency,” the report read.

Newsweek reached out to Hayden, the U.S. Selective Service and the office of Iraq War veteran Senator Tammy Duckworth for comment.


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