COUNTERING MILITARY RECRUITMENT
Articles: Leaving Military: Stop-Loss
'Backdoor draft' faces uphill battle in 9th U.S. Circuit Court
Josh Richman, Inside Bay Area
October 22, 2005
SAN
FRANCISCO — A Bay Area serviceman's legal challenge to the
military's "stop loss" troop retention policy — which he calls a
"back-door draft" — seemed to face dim chances in a federal
appeals court Friday.
A three-judge panel of the 9th U.S. Circuit Court of Appeals
seemed unconvinced that they're not bound by a decision rendered
earlier this year by another 9th Circuit panel in a similar case.
Attorney Michael Sorgen insisted the cases' circumstances are
different, but acknowledged the enlistment contracts the two cases'
soldiers had signed essentially are the same.
Sorgen represents John Doe, a California Army National Guardsman
who sued anonymously to protect his privacy. Doe, a married father of
two, is an eight-year Army veteran who served in combat in the first
Gulf War.
He enlisted in the National Guard in May 2003 under the "Try One"
program, in which active-duty veterans can sign on for a year before
deciding whether to make a longer commitment. He renewed for a second
year in February 2004, pushing his expiration date to May 2, 2005.
His unit received orders in July 2004 for a 545-day tour of
active duty; it was sent Oct. 6, 2004 for training at Fort Lewis,
Wash., and to Iraq on Nov. 20, 2004. The tour would've exceeded Doe's
expected service term by about a year; he says he was told that if he
didn't reenlist voluntarily for the extra time, he'd be retained under
the Army's stop-loss policy.
A federal judge in Sacramento ruled against Doe in March, finding
the stop-loss policy is authorized under a federal law letting the
president suspend laws relating to separation from the military when
the president deems national security is at stake.
A similar case beat Doe's to the 9th Circuit appeals court. A
panel in April upheld a ruling that Emiliano Santiago, an Oregon
Guardsman, had to report for duty in Afghanistan. Santiago had signed
an eight-year contract in 1996 and was three months shy of his term's
end when his unit learned it might be mobilized; the mobilization
finally came about six months after Santiago's original discharge date.
On Friday, circuit Judge Pamela Rymer and senior circuit judges
Stephen Trott and J. Clifford Wallace — appointees of presidents
George H.W. Bush, Ronald Reagan and Richard Nixon, respectively, and
all with reputations for conservatism — indicated they believe
Doe's case differs little from Santiago's, so they're bound by the
previous panel's precedent.
They didn't seem impressed by Sorgen's contention that Doe's "Try
One" enlistment made a difference; Trott said a military marketing ploy
doesn't change the underlying contract and laws.
Sorgen said absent a formal congressional declaration of a
national emergency, the president's power to keep military personnel
indefinitely violates the constitutional separation of powers. He
likened it to the U.S. Supreme Court's forbiddance of the Truman's
administration's attempt to seize steel mills during the war in Korea;
Trott retorted soldiers aren't steel mills.
U.S. Justice Department attorney H. Thomas Byron III argued any
verbal representations that might've been made to Doe when he
re-enlisted aren't at issue here — the law and Doe's contract
clearly say the president has the power to keep troops past their
enlistments' expiration dates when necessary.
Sorgen, whom the judges questioned extensively from the get-go,
expended the entire 20 minutes allotted for his argument. Byron was
done in about six minutes, and the judges had no further questions.
A decision is expected within several months, but Doe's case
might be rendered moot sooner than that. He has been under medical
evaluation for a back problem for the past few months, and might
eventually be discharged on that basis.
Contact Josh Richman at jrichman@angnewspapers.com.
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