thedrifter
12-17-04, 07:13 AM
12-15-2004
‘Try One,’ Get One Free
By Nathaniel R. Helms
The National Guard’s “Try One” reenlistment program has created unintended consequences that could shut down the Army’s unpopular and frequently criticized “stop-loss” program. The “Try One” program was intended to lure prior service soldiers into one last year of National Guard life to determine if they really want to stay or go.
A California National Guard soldier who “tried one” and got stuck for the duration plus 90 days has filed suit in U.S. District Court in San Francisco challenging the Army’s right to keep him beyond his contractual obligation and preventing him from separating from military service upon the expiration of his enlistment term. Another California Guardsman who filed a similar complaint two months ago was honorably discharged before his case was heard. This time, the lawyers representing John Doe – the Guardsman is keeping his identity protected to avoid harassment or retaliation – intend to force the issue by trial.
In the meantime, at least eight other soldiers have filed suit in U.S. District Court in Washington, D.C., challenging various aspects of the stop-loss initiative. But the California case raises issues that bring into question whether the President of the United States has the Constitutional authority to give such an order in defiance of a specific federal law that prohibits the government from arbitrarily extending a soldier’s obligation, according to the attorneys representing Doe.
Doe is currently in limbo waiting to discover whether the U.S. District Court for Eastern California is going to issue an injunction to keep him home while the issue is decided. On Wednesday, Doe’s attorney said he was still waiting for the circuit court judge to rule whether he will issue an injunction prohibiting Doe from being sent to Iraq on his scheduled departure date of Dec. 20, 2004. Doe has been training with his unit at Fort Lewis since it was called up in October.
This unidentified soldier, the father of two, is the second CANG soldier to file suit and the first to be heard before a federal court, said Joshua N. Sondheimer, one of the San Francisco-based attorneys representing Doe. His client has already served 12 years in the regular Army and Marine Corps, including two overseas deployments and a previous combat tour in Iraq, Sondheimer added.
The crux of the argument has less to do with whether the President can keep soldiers in the Army past their contractual obligation date and more to do with whether sitting presidents can simply bypass the will of Congress with an executive order, Sondheimer said. In this case, an obscure, statute passed by Congress in 1983 called Title 10 USC 506 is at issue. In that law, Congress said no one could involuntarily extend a service person’s military obligation without a “declaration of war” or a “national emergency” declared by Congress.
So why is John Doe still in the Army?
President Bush, seconded by Secretary of Defense Donald H. Rumsfeld and his minions, declared by executive order that the will of Congress was apparently less important than the military’s need for troops on the ground. In this case, the administration simply released a message, titled MILPER message 03-040, which instructed all relevant commands, officers and soldiers that their tours of duty have been extended until the present national emergency has been concluded. It apparently matters not that Congress has not provided the needed authority called for in the 1983 law.
Officers and warrant officers wishing to be discharged will have to wait until “24 DEC 2031,” MILPER message 03-040 states. Enlisted service members are eligible for discharge 90 days after their unit is deemed ready to stand down. How long that might be is not mentioned. The Army says both dates are simply administrative necessities that ensure a soldier’s ETS date is far enough in the future that it won’t impede present policy. Another argument offered by Guard officials was that the 90-day mandatory extension allows soldier’s to coolly review whether they want to give up the benefits enjoyed by current National Guard and Reserve personnel.
“They sure say some strange things sometimes,” Sondheimer quipped.
Doe’s attorney’s told the court in early December that, “On or after September 4, 2004, Doe was advised by his commanding officer that he was being mobilized to active duty for 545 days in support of Operation Iraqi Freedom. His unit was initially scheduled to deploy initially to Fort Lewis, Washington on Oct. 6, 2004, for an estimated 45 days, and then proceed overseas from there.
At the time he was notified, Doe and his unit were told that any Guardsmen who did not agree in upcoming interviews with Army retention officers to voluntarily extend their enlistments would be placed under the Army’s “stop loss” policy. They were advised that under this policy, their enlistments would be involuntarily extended for the duration of their overseas deployment and for 90 additional days after returning to the United States.
Doe mistakenly believed that he would not be placed under the stop loss policy until he was interviewed, and did not understand that he could challenge the involuntary extension of his enlistment until he contacted his present attorneys, Sondheimer said. Unfortunately, he was wrong!
If Doe is deployed with his unit, he will be required to remain on duty until April 2006, resulting in his being forced to serve nearly an additional year on what was marketed as a one-year enlistment, the complaint says. To prevent his deployment while the case is being argued, Doe’s attorneys have asked for an injunction preventing Doe from being sent to Fort Lewis.
Doe’s attorneys argue that the Army’s assertion that it gets authority to mandate the stop loss program was delegated to the Secretary of Defense in Executive Order No. 13223 of Sept. 14, 2001. The order was issued on that date, authorizing the Secretary of Defense to order the Ready Reserve of the armed forces to active duty “to respond to the continuing and immediate threat of further terrorist attacks on the United States,” argued Michael S. Sorgen, Doe’s lead counsel and an anti-draft attorney from the Vietnam era, in his presentation to the court.
Bush issued it because “a national emergency exists by reason of the terrorist attacks at the World Trade Center, New York, New York, and the Pentagon, and the continuing and immediate threat of further attacks on the United States,” Sorgen said. But Executive Order 13223 does not provide authority for involuntarily extending Doe’s enlistment for nation-building service in Iraq, Sorgen added.
Simply stated, Doe’s attorneys argue that Iraq no longer poses a threat to the United States and that reality invalidates the government’s claim of a national emergency. (Note that in a different lawsuit by POWs from the 1991 Gulf War, the Bush administration argued the ex-prisoners could not attempt to recover monetary damages from the Iraqi government because the Saddam Hussein regime no longer existed.)
“Saddam and his regime were the emergency threat,” Sondheimer explained Wednesday. “Saddam and the regime are gone. There is no legitimate basis any longer for using emergency powers related to the alleged threat his regime posed.”
If the court find’s in Doe’s favor, Sondheimer expects the federal government to immediately appeal the lower court’s decision to the Ninth Circuit Court of Appeals, which has proved an anathema to conservatives in the past. In any case, Doe’s case has put a real crimp in the CANG’s “Try One” recruitment program.
Regardless of the legal fight by John Doe and other Guardsmen, the future response by Guardsmen to “Try One” will probably be – in the words of an earlier commander-in-chief, to “Just Say No.”
Contributing Editor Nathaniel R. “Nat” Helms is a Vietnam veteran, former police officer, long-time journalist and war correspondent living in Missouri. He is the author of two books, Numba One – Numba Ten and Journey Into Madness: A Hitchhiker’s Account of the Bosnian Civil War, both available at www.ebooks-online.com. He can be reached at natshouse1@charter.net. Send Feedback responses to* dwfeedback@yahoo.com.
Ellie
‘Try One,’ Get One Free
By Nathaniel R. Helms
The National Guard’s “Try One” reenlistment program has created unintended consequences that could shut down the Army’s unpopular and frequently criticized “stop-loss” program. The “Try One” program was intended to lure prior service soldiers into one last year of National Guard life to determine if they really want to stay or go.
A California National Guard soldier who “tried one” and got stuck for the duration plus 90 days has filed suit in U.S. District Court in San Francisco challenging the Army’s right to keep him beyond his contractual obligation and preventing him from separating from military service upon the expiration of his enlistment term. Another California Guardsman who filed a similar complaint two months ago was honorably discharged before his case was heard. This time, the lawyers representing John Doe – the Guardsman is keeping his identity protected to avoid harassment or retaliation – intend to force the issue by trial.
In the meantime, at least eight other soldiers have filed suit in U.S. District Court in Washington, D.C., challenging various aspects of the stop-loss initiative. But the California case raises issues that bring into question whether the President of the United States has the Constitutional authority to give such an order in defiance of a specific federal law that prohibits the government from arbitrarily extending a soldier’s obligation, according to the attorneys representing Doe.
Doe is currently in limbo waiting to discover whether the U.S. District Court for Eastern California is going to issue an injunction to keep him home while the issue is decided. On Wednesday, Doe’s attorney said he was still waiting for the circuit court judge to rule whether he will issue an injunction prohibiting Doe from being sent to Iraq on his scheduled departure date of Dec. 20, 2004. Doe has been training with his unit at Fort Lewis since it was called up in October.
This unidentified soldier, the father of two, is the second CANG soldier to file suit and the first to be heard before a federal court, said Joshua N. Sondheimer, one of the San Francisco-based attorneys representing Doe. His client has already served 12 years in the regular Army and Marine Corps, including two overseas deployments and a previous combat tour in Iraq, Sondheimer added.
The crux of the argument has less to do with whether the President can keep soldiers in the Army past their contractual obligation date and more to do with whether sitting presidents can simply bypass the will of Congress with an executive order, Sondheimer said. In this case, an obscure, statute passed by Congress in 1983 called Title 10 USC 506 is at issue. In that law, Congress said no one could involuntarily extend a service person’s military obligation without a “declaration of war” or a “national emergency” declared by Congress.
So why is John Doe still in the Army?
President Bush, seconded by Secretary of Defense Donald H. Rumsfeld and his minions, declared by executive order that the will of Congress was apparently less important than the military’s need for troops on the ground. In this case, the administration simply released a message, titled MILPER message 03-040, which instructed all relevant commands, officers and soldiers that their tours of duty have been extended until the present national emergency has been concluded. It apparently matters not that Congress has not provided the needed authority called for in the 1983 law.
Officers and warrant officers wishing to be discharged will have to wait until “24 DEC 2031,” MILPER message 03-040 states. Enlisted service members are eligible for discharge 90 days after their unit is deemed ready to stand down. How long that might be is not mentioned. The Army says both dates are simply administrative necessities that ensure a soldier’s ETS date is far enough in the future that it won’t impede present policy. Another argument offered by Guard officials was that the 90-day mandatory extension allows soldier’s to coolly review whether they want to give up the benefits enjoyed by current National Guard and Reserve personnel.
“They sure say some strange things sometimes,” Sondheimer quipped.
Doe’s attorney’s told the court in early December that, “On or after September 4, 2004, Doe was advised by his commanding officer that he was being mobilized to active duty for 545 days in support of Operation Iraqi Freedom. His unit was initially scheduled to deploy initially to Fort Lewis, Washington on Oct. 6, 2004, for an estimated 45 days, and then proceed overseas from there.
At the time he was notified, Doe and his unit were told that any Guardsmen who did not agree in upcoming interviews with Army retention officers to voluntarily extend their enlistments would be placed under the Army’s “stop loss” policy. They were advised that under this policy, their enlistments would be involuntarily extended for the duration of their overseas deployment and for 90 additional days after returning to the United States.
Doe mistakenly believed that he would not be placed under the stop loss policy until he was interviewed, and did not understand that he could challenge the involuntary extension of his enlistment until he contacted his present attorneys, Sondheimer said. Unfortunately, he was wrong!
If Doe is deployed with his unit, he will be required to remain on duty until April 2006, resulting in his being forced to serve nearly an additional year on what was marketed as a one-year enlistment, the complaint says. To prevent his deployment while the case is being argued, Doe’s attorneys have asked for an injunction preventing Doe from being sent to Fort Lewis.
Doe’s attorneys argue that the Army’s assertion that it gets authority to mandate the stop loss program was delegated to the Secretary of Defense in Executive Order No. 13223 of Sept. 14, 2001. The order was issued on that date, authorizing the Secretary of Defense to order the Ready Reserve of the armed forces to active duty “to respond to the continuing and immediate threat of further terrorist attacks on the United States,” argued Michael S. Sorgen, Doe’s lead counsel and an anti-draft attorney from the Vietnam era, in his presentation to the court.
Bush issued it because “a national emergency exists by reason of the terrorist attacks at the World Trade Center, New York, New York, and the Pentagon, and the continuing and immediate threat of further attacks on the United States,” Sorgen said. But Executive Order 13223 does not provide authority for involuntarily extending Doe’s enlistment for nation-building service in Iraq, Sorgen added.
Simply stated, Doe’s attorneys argue that Iraq no longer poses a threat to the United States and that reality invalidates the government’s claim of a national emergency. (Note that in a different lawsuit by POWs from the 1991 Gulf War, the Bush administration argued the ex-prisoners could not attempt to recover monetary damages from the Iraqi government because the Saddam Hussein regime no longer existed.)
“Saddam and his regime were the emergency threat,” Sondheimer explained Wednesday. “Saddam and the regime are gone. There is no legitimate basis any longer for using emergency powers related to the alleged threat his regime posed.”
If the court find’s in Doe’s favor, Sondheimer expects the federal government to immediately appeal the lower court’s decision to the Ninth Circuit Court of Appeals, which has proved an anathema to conservatives in the past. In any case, Doe’s case has put a real crimp in the CANG’s “Try One” recruitment program.
Regardless of the legal fight by John Doe and other Guardsmen, the future response by Guardsmen to “Try One” will probably be – in the words of an earlier commander-in-chief, to “Just Say No.”
Contributing Editor Nathaniel R. “Nat” Helms is a Vietnam veteran, former police officer, long-time journalist and war correspondent living in Missouri. He is the author of two books, Numba One – Numba Ten and Journey Into Madness: A Hitchhiker’s Account of the Bosnian Civil War, both available at www.ebooks-online.com. He can be reached at natshouse1@charter.net. Send Feedback responses to* dwfeedback@yahoo.com.
Ellie