Sept. 7, 2004 – A National Guardsman has filed the first court challenge to a presidential order mandating military service members remain on active duty beyond the dates they were scheduled to be discharged from service. Filed in San Francisco federal court on August 17, the lawsuit could affect Bush administration war policies, as well as the lives of at least 40,000 service members who have been or could be forced to serve beyond their enlistment terms.
The Bush administration contends that Executive Order 13223 of September 14, 2001, gives it the authority to implement what is known as the "Stop Loss" program. President George W Bush used the order to declare a national emergency and to give the Defense Department the authority to keep military personnel on active duty involuntarily for not more than 24 consecutive months.
The lawsuit, brought by a Guardsman identified as "John Doe" for privacy reasons, charges that Executive Order 13223 "does not support the involuntary extension of the enlistments of non-commissioned soldiers [non-officers] for service in Iraq."
"Many US troops are frustrated with the Stop Loss policy," explained Joshua Sondheimer, an attorney with the San Francisco-based law offices of Michael S. Sorgen, who is representing John Doe. "Their enlistment has ended and they have done their duty." Sondheimer said now soldiers like his client want to be given a choice whether to continue in the military or go back to their families and get on with their lives. "Is it fair to require that those that have done their duty bear the bear the brunt of the need for a larger military?" he asked. "We no longer have an all volunteer army."
"Weâ€™re asking the court to protect the rights of an individual American against the arbitrary action of his government." -- Marti Hiken, Military Law Task Force
Marti Hiken, a co-chair of the Military Law Task Force (MLTF) of the National Lawyerâ€™s Guild, which is assisting with the suit, said the US military is trying to create a new type of "indentured servitude." She added, "Weâ€™re asking the court to protect the rights of an individual American against the arbitrary action of his government."
John Doe is described as a "decorated combat veteran" currently living in the San Francisco Bay Area and serving in the National Guard. According to his lawyers, over the past twelve years, he has completed more than nine years of active service in the Marine Corps and Army, including a tour of combat duty in Iraq in 2003.
According to a legal memorandum filed by Doeâ€™s lawyers, his "commanders all have praised his commitment to military service, and he has received numerous awards and decorations, including three Army Commendation Awards." Sondheimer described his client as "a soldier who has seen heavy combat work with special operations forces and is not afraid to jump out of airplanes with live explosives strapped to him."
Doe, who has wife and two daughters, ages six and three, has been under treatment for post traumatic stress syndrome resulting from his service in Iraq. "A service man with my clientâ€™s type of military record should be allowed to return to his family once he completes his service obligation," Sondheimer said. "Instead, the military Stop Loss program is putting undue hardship on him."
Doe is currently serving a one-year commitment in the California National Guard, but according to the Memorandum filed by Doeâ€™s lawyers, he was advised in July that his one-year enlistment has been extended an additional two years and that his National Guard unit has been mobilized for service in Iraq.
"All he wants now is to be with his family," Hiken said. "He is facing hardship because the Bush administration doesnâ€™t have enough troops in Iraq." Both Sondheimer and Hiken said the Stop Loss program is nothing more than a "back door draft."
Lawrence Korb, Senior Fellow for the Center for American Progress and Senior Advisor for the Center for Defense Information, agreed. "You sign up with the National Guard for four years, but when you are about to get out, your unit gets notified that itâ€™s going to Iraq. The military is essentially forcing you to stay beyond the time youâ€™ve agreed to."
Korb said the military is relying on the back door draft because the active army is too short of troops to keep up with its active occupations and still meet its other military commitments. "The Bush administration didnâ€™t plan for an extended deployment in Iraq, but it also has active occupations in Afghanistan, Korea and the Balkans," Korb explained. "The US military canâ€™t have enough active forces without calling up the National Guard and Reserve more often than it had anticipated."
When asked what the administration should do, Korb said, "To make up for the shortage of 40,000 troops, the Bush administration should move some of the troops in General Reserve to the active force." But he added, "It wonâ€™t do that because that will cost money. Doing that means giving up something like missile defense or the F-22 [stealth fighter program]."
The lawsuit charges that the Stop Loss program is invalid because it is "unrelated to and exceeds the scope and purpose of the executive order under which the Stop Loss order has been promulgated."
"Stop Loss is in violation of the protections John Doe has under US law and the Constitution," Sondheimer said.
Involuntary extensions of enlistments are barred by law, except during a war of national emergency declared by Congress, the suit contends. In making its case, Doeâ€™s lawyers cite the Selective Service Act of 1948, the Uniform Military and Training and Service Act of 1951, and the Armed Services Act of 1968, which, in the plaintiffs view, Congress passed to "limit authority being asserted by certain branches of the armed services to involuntarily extend enlistments during periods of national emergency."
"Congress said itâ€™s only going to let the military keep people in the service if war is declared," Sondheimer explained. "Congress hasnâ€™t declared war."
Executive Order 13223 states that the Secretary of Defense can order the Ready Reserve of the armed forces to active duty if necessary, to "respond to the continuing and immediate threat of further terrorist attacks against the United States." But the suit challenges that assertion, arguing that "Iraq no longer poses any threat of terrorism against the United States, if it ever did." So the US government cannot assert that Iraq is a terrorist threat because, with an interim government installed and backed by the US, Iraq is once again a "sovereign" nation.
Many other military personnel in John Doeâ€™s situation have contacted Sorgenâ€™s law office for assistance. "Theyâ€™re near the end of their enlistment, but are being ordered to stay in," Sondheimer said. "They believe the government is breaking their deal."
The Military Law Task Force is a part of the GI Rights Hotline, which, in 2003, received nearly 30,000 telephone calls. "The overwhelming number of calls had to do with Stop Loss, and they donâ€™t include the calls about Stop Loss that come directly to the Task Force," Hiken revealed.
The courtâ€™s decision is expected to be one of most significant legal rulings in the post 9-11 era, but John Doeâ€™s lawyers donâ€™t expect it to come soon. "We donâ€™t know how long the case will take," Hiken said. "The side that loses initially in court will certainly file an appeal."
Meanwhile, Joe Doe -- like the tens of thousands of National Guard members and reservists he represents -- faces an uncertain future. "His status is in limbo," Sondheimer said. "The military has given him an informal waiver from having to go off to training before his unit gets shipped to Iraq. But they havenâ€™t responded to his request for a formal waiver from the Stop Loss program."
Sondheimer added, "We will seek a restraining order if the military tries to send our client to Iraq."