Two members of the California National Guard have filed a lawsuit contending the military’s controversial “stop-loss” program, which forces those whose enlistment is about to run out to stay in the military, is illegal when applied to National Guard soldiers. About 40,000 National Guard members are now deployed in Iraq.
“John Doe,” identified only as a member of the 2668th Transportation Company and “married and the father of two young children,” is about to become one of them. His unit left last week for training at Fort Lewis in Washington state. It is expected to depart for Iraq in seven weeks or so.
Both “John Doe” and another National Guard member who filed suit in August are in the National Guard “Try One” program reserved for military veterans. The program allows veterans to bypass basic training while enjoying military education and family medical benefits for a one-year trial period. Before their one year was up, however, they were called under stop-loss orders for an 18-month tour that includes deployment to Iraq.
The military says the involuntary retention of troops was fully authorized by an executive order signed Sept. 14, 2001, by President Bush.
Attorneys for the soldiers, however, say the 9/11 commission’s report that found no “collaborative operational relationship” between Iraq and al-Qaida means deployment to Iraq is not covered by an executive order written in response to 9/11. They argue additionally that the executive order doesn’t cover “nation-building,” and that in the absence of a declaration of war by Congress, an involuntary call is a violation of the National Guard enlistment contract.
Joshua Sondheimer, a San Francisco attorney who is handling these cases, said he expects the federal District Court in Sacramento to hear the request for a preliminary injunction within five weeks. He points to a law that says National Guard members can’t be kept in federal service beyond their period of enlistment.
Many people have deplored the fact that stop-loss orders amount to a “backdoor draft” that permits the government to avoid the consequences of their overly ambitious foreign policy by forcing those who have already fulfilled their military commitment to serve longer.
Although it would be foolish to predict how a court will rule, this case suggests the policy may be not only objectionable, but illegal. The case raises the issue that the U.S. Constitution gives Congress — not the president acting unilaterally — the power to declare war. That check on executive power has been ignored for too long.
If “John Doe” wins this case it will probably open the legal floodgates for other soldiers to challenge stop-loss orders. That would be healthy. It is important for a country that claims to be fighting in part for the rule of law to do so in ways that uphold rather than undermine the rule of law.