Law suit challenges Bush administration's 'Back Door Draft'

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" programme. President George Bush, Jr. used the order to declare a national emergency and to give the Defense Department the authority to keep military personal on active duty involuntarily for not more than 24 consecutive months.

The law suit charges that Executive Order 13223 "does not support the involuntary extension of the enlistment of non commissioned soldiers for service in Iraq."

"Many U.S. troops are frustrated with the Stop Loss policy," explained Joshua Sondheimer, an attorney with the San Francisco based law firm of Michael S. Sorgen, who is representing John Doe. "Their enlistment has ended and they have done their duty. Now they want to go back to their families and get on with their lives. Is it fair that they bear the burden for a country that doesn't have a non volunteer army?" Marti Hiken, a spokesperson for the National Law Task Force (MLTF) of the National Lawyer's Guild, which is assisting with the suit, said that the U.S. military is trying to create a new type of "indentured servitude." She added, "We'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 Army Reserve. In the past 12 years, he has completed more than nine years of active service in the Marine Corp and army, including a tour of combat duty in Iraq in 2003. According to a legal memorandum filed by Doe's lawyers, "his commanders all have praised his commitment to military service, and he has received numerous awards and decorations, including three Army commendations.

" 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, age 6 and 3, has been under treatment for post traumatic stress syndrome resulting from his service in Iraq. "A service man with my client'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 programme is putting undue hardship on him."

Doe is currently serving a one-year enlistment in the California National Guard as a reservist, but his time could be extended to two years, and possibly longer. "All he wants now is to be with his family," Hiken said. 'He is facing hardship because the Bush administration doesn't have enough troops in Iraq.' Both Sondheimer and Hiken said the Stop Loss programme 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 it's going to Iraq. The military is essentially forcing you to stay beyond the time you've agreed to." Korb said the military is relying on the Back Door draft because the active army is way too short of troops to keep up with its active occupations and still meet its other military commitments. "The Bush administration didn't plan for an extended deployment in Iraq, but it also has active occupations in Afghanistan, Korea and the Balkans," Korb explained. "The U.S. military can't have enough active forces without calling up the National Guard and Reserve more often than it had anticipated."

So what should the Bush administration do? "To make up for the shortage of 40,000 troops (two divisions), the Bush administration should move some of the troops in General Reserve to the active force, Korb advised. But he added, "It won't do that because that will cost money. Doing that means giving up something like missile defense or the F-22." The lawsuit charges that the Stop Loss programme is invalid because "it is authorised by, 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 the U.S.

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, Doe'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 it's only going to let the military keep people in the service if war is declared," Sondheimer explained. "Congress hasn't declared war since 9-11 happened."

Executive Order 13223 states that the Secretary of Defense can order the Ready Reserve of the armed forces to active duty if it's 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 U.S. government can't assert that Iraq is a terrorist threat. Because, with an interim government in place and backed by the U.S, Iraq is once again a 'sovereign' nation. The court's decision is expected to be one of most significant legal rulings in the post 9-11 era, but John Doe's lawyers don't expect it to come soon. "We don't know how long the case will take, "Hiken said. "The side that loses initially in court will certainly file an appeal." Many other military personnel on active duty in John Doe's situation have contacted Sorgen's law office for assistance. "They'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 MLTF helps operate a 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 don't include the calls about Stop Loss that come directly to the Task Force," Hiken revealed.

Meanwhile, Joe Doe 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 haven't responded to his request for a formal waiver from the Stop Loss programme. He added, "we will seek a restraining order if the military tries to send our client to Iraq."

Ron Chepesiuk is a Visiting Professor of Journalism at Chittagong University and a Research Associate with the National Defence College.